Mental capacity law newsletter November 2015: issue 60 - Court of Protection: health, welfare and deprivation of liberty

Introduction

Welcome to the November 2015 Newsletters. Highlights this month include:

1. In the Health, Welfare and Deprivation of Liberty Newsletter, a decision about deprivation of liberty in hospital and the meaning of state detention under the Coroners and Justice Act 2009, and the final instalment in the Rochdale deprivation of liberty saga;
2. In the Capacity Outside the CoP newsletter, an introduction to the work of the new National Mental Capacity Forum from its Chair, Baroness Finlay;
3. In the Practice and Procedure Newsletter, an update on the regionalisation of the Court of Protection;
4. In the Property and Financial Affairs Newsletter, a number of decisions concerning powers of attorney;
5. And  in  the  Scotland  Newsletter,  the  annual  report  of  the

Mental Welfare Commission for Scotland.

We also take this opportunity to remind readers that where one of the Newsletter editors is instructed in an ongoing case which is summarised, that  editor does not play any part in  drafting the summary or comment.

And remember, you can now find all our past issues, our case summaries, and much more on our dedicated sub-site here.

 

Editors

Alex Ruck Keene Victoria Butler-Cole Neil Allen

Annabel Lee Anna Bicarregui

Simon Edwards (P&A)

Guest contributor

Beverley Taylor

Scottish contributors

Adrian Ward Jill Stavert

Table of Contents

Introduction                                         1

Deprivation of liberty and the Coroners and Justice Act 2009    2 Deprivation of liberty and the

end of the Rochdale saga               4

Deprivation of liberty in a children’s home        6

Deprivation of liberty in the USA 10 Deprivation of liberty in a

general hospital for a detained

MHA patient                                        13

New Health and Social Care Information Centre statistics          13 Department of Health update on deprivation of liberty                                                     13

Conferences at which editors/contributors are

speaking                                                14

For all our mental capacity resources,       click     here. Transcripts not available at time of writing are likely to be soon at www.mentalhealthlaw.co.uk.

Deprivation of liberty and the Coroners and Justice Act 2009

R (Ferreira) v HM Senior Coroner for Inner South London [2015] EWHC 2990 (Admin)

Article 5 ECHR – Coroners and Justice Act 2009 – deprivation of liberty in hospital

Summary

Maria Ferreira suffered from Down’s syndrome, severe learning disability, limited mobility and required 24 hour care which was provided principally by her sister, LF. Maria died while in intensive care in hospital. She was aged 45 at the time of death.

Maria was admitted to hospital with a working diagnosis of pericarditis, pneumonia and possible pulmonary oedema. She had a strong dislike of hospitals and found the procedure frightening. Her condition worsened so she was heavily sedated and transferred to the hospital’s intensive care unit (“ICU”). Over the following days, she remained sedated and on a mechanical ventilator as a life-saving treatment intervention. While in ICU, the nursing staff put mittens on Maria’s hands to prevent her from reflexively grabbing at and disconnecting the endotracheal tube. A few days later, Maria dislodged the tube. Despite prompt attempts at resuscitation, Maria went into cardiac arrest and died.

An inquest was to be held into Maria’s death. The Senior Coroner held that Maria was not deprived of her liberty for the purposes of Article 5 and was therefore not in “state detention” at the time of her death within the meaning in sections 7(2)(a) and 48(1) of the Coroners and Justice Act 2009 (“CJA 2009”). There was thus no

mandatory requirement to summon a jury. Maria’s sister sought judicial review of this decision.

Whilst recognising that it was difficult to distinguish the meaning of “deprivation of liberty” under Article 5 ECHR from “state detention” under the CJA 2009, the Court held that the Coroner had been entitled to conclude Maria was not in “state detention” in the ICU at the time of her death, rather, she was there to receive life-saving treatment.

The starting point for the court was the language of the CJA 2009, “in state detention” and “compulsorily detained” should be given a readily understood, natural and ordinary meaning. Lord Justice Gross elaborated on the meaning of such terms by stating at paragraph 69:

“Accordingly, as a matter of language and context but without reference to the jurisprudence relating to Art. 5 ECHR, I would construe the wording “in state detention” and “compulsorily detained” as meaning a confinement imposed by a public authority, overriding the relevant person’s freedom of choice; in short, detention properly so called, by the state, in whatever form.”

Lord Justice Gross recognised at paragraph 73 that it was difficult to distinguish the meaning of “state detention” from “deprivation of liberty” in Article 5 in this context:

“…I have come to the view that “state detention” as defined in the CJA 2009 and deprivation of liberty under Art. 5 have essentially similar, if not necessarily identical, meanings. That conclusion does

not preclude the possibility that there may be some situations constituting deprivation of liberty, as interpreted by Cheshire West, which do not necessarily amount to “state detention” under the CJA 2009. However, that is not this case and, in the present context, I am unable to accept that the answer is to be found by distinguishing “state detention” as defined in the CJA 2009 from deprivation of liberty under Art. 5”

Lord Justice Gross gave four reasons why Cheshire West did not require treating all patients in an ICU (and other hospital settings) who lacked capacity to consent to treatment for more than a very brief period as subject to a deprivation of liberty:

1. It would not draw any distinction between patients with and those without any previous mental incapacity.

1. It would break new ground in that the cases in Strasbourg have not addressed treatment for physical disorders unconnected with the patient’s  mental disorder.

1. The practical consequences would be significant. The Court acknowledged the two main practical effects for coroners if a person died while in “state detention”: (i) an inquest must be held, if the cause of death had been established and found to be natural; and (ii) the inquest must be held with a jury if there was reason to suspect that the death was violent or unnatural or of unknown cause.

1. Any wholesale extension would overlook the fact that a person who lacks capacity to

consent to a particular treatment can be treated on a best interests basis (under section 5 MCA) without being deprived of his liberty or compulsorily obtained.

Applying those principles to the facts of this case, Lord Justice Gross was satisfied that the Coroner had been entitled to conclude that Maria had not been “detained” or “compulsorily detained.” As a matter of ordinarily language, it was wholly artificial to say that Maria was kept in custody or confined by the state. The reality was that Maria remained in the ICU, not because she had been deprived of her liberty but because, for pressing medical reasons and treatment, she was unable to be elsewhere. In reaching its decision, the Court made clear that the lawfulness of the detention was not relevant; what mattered was whether or not at the time of death the deceased was in state detention.

Charles J, on the other hand, held that the use of the word “compulsorily” in the definition of “state detention” was significant. In his view, that word limited detentions to those imposed so as to override the individual’s freedom of consent. On Charles J’s reasoning, it was wholly artificial to say that at the time of her death, Maria was compulsorily detained as her freedom of choice had not been overridden in any sense and nothing had been unilaterally imposed on her.

Further, and in agreement with Lord Justice Goss, Charles J held that the principles in Cheshire West should not be applied without modification to the different situation of a patient who is in hospital for care and treatment for physical disorders. Rather, a fact sensitive approach should be applied taking into account the length of time that the relevant care and treatment  has  lasted,  changes  in  it  and  the

impact of  any pre-existing lack  of  capacity.  At first blush, this approach appears to run counter to the “acid test” in Cheshire West, namely being under continuous supervision and control and not free to leave, which was formulated on the express basis that the purpose, reason and benevolence underlying a placement was irrelevant.

Both Lord Justice Goss and Charles J considered that it was unnecessary to ask the question whether the hospital staff would have refused to allow Maria to leave if the Claimant had pressed the issue, not least because, factually speaking, it was “fanciful” to suggest that the Claimant would have sought to remove Maria in circumstances where she was receiving life- sustaining treatment. This is a divergent approach from that contained within the Law Society Practical Guide which suggests that, in considering whether there was a deprivation of liberty in the context of a hospital setting, practitioners should consider what actions hospital staff would take if, for example, family members sought to remove the patient from the hospital.

Significantly for practitioners, Charles J concluded that there was no need for an inquest having to be held in every case where an elderly person died from natural causes in a care home if their care package amounted to a deprivation of liberty to which they did not have the capacity to consent, or about which they had no real choice.

Comment

This is an important decision which will have practical ramifications for all hospitals as well as hospices and other medical settings. Whilst Lord Justice Gross and Mr Justice Charles were clear

in their conclusion that Maria was not “compulsorily detained” or “in state detention” whilst in the ICU before she died, the reasons for their conclusions are not consistent. It is difficult to discern precisely why Maria was not considered to be “in state detention” at the time of her death and future cases will need to be considered on a very fact-sensitive basis.

The approach taken by Charles J is at odds with the Chief Coroner’s Guidance on Deprivation of Liberty Safeguards of 5 December 2014 (and the Law Commission’s view) which advises that any person subject to an authorised deprivation of liberty falls within the CJA 2009’s definition of “state detention” and, therefore, the death  of any such person should be the subject of a coronial investigation. Of course, the decision of the Court takes precedence over the views expressed by the Chief Coroner or the Law Commission.

Deprivation of liberty and the end of the Rochdale saga

KW (by her litigation friend) v Rochdale MBC [2015] EWCA Civ 1054

Article 5 ECHR

Summary

This is the second appeal to the Court of Appeal from a decision of Mostyn J in this long-running Court of Protection matter. In his first decision, the judge questioned the reasoning and conclusions of the majority in Cheshire West. That led to an appeal that was allowed by consent but without a judgment. Mostyn J duly listed the matter for consideration of the effect

of the consent order and further directions in relation to the review of KW’s deprivation of liberty. In a reserved judgment handed down on 13 March 2015, Mostyn J questioned whether the Court of Appeal had decided whether KW was deprived of her liberty, thereby leaving her in a state of legal “limbo”, concluded that the consent order was made ultra vires and that KW was only entitled to a court review if she were to be subjected to “… bodily restraint comparable to that which obtained in P v Cheshire West and Cheshire Council…”.

The Master of the Rolls gave the judgment of the court. Firstly, whilst the consent order did not explicitly state that there was a deprivation of liberty, it was “clearly” not correct to interpret it as meaning KW was not deprived of her liberty when read in context. Paragraph 1 of  the consent order provided that the appeal was allowed. The only ground of appeal was that the judge had wrongly concluded that KE was not deprived of her liberty. Further, the other provisions of the consent order provided for annual reviews of KW’s deprivation of her liberty. Read in context, the consent order could not be interpreted as meaning there was no deprivation of liberty. That said, the court disapproved the “Model Re X Order” preferring “P is deprived of his liberty but the same is lawful” over “To the extent that P is deprived of his liberty it is lawful”.

In relation to whether the consent order was made ultra vires the Master of the Rolls said that it was “… futile and, in our view, inappropriate for a judge, who is called upon to give effect to an order of a higher court which is binding on him, to seek to undermine that order by complaining that it was ultra views or wrong for any other reason…”.

In any event, the consent order was not ultra vires as it was made by a permissible route on a proper interpretation of para 6.4 of PD 52A. In a decision which will have wider application it was held that Rule 52.10 and PD52A gives the appeal court a discretion to allow an appeal by consent on the papers without determining the merits at a hearing where it is satisfied that there are good and sufficient reasons for doing so. What those reasons are will depend on the circumstances of the case but guidance was given to the effect that where the appeal court is satisfied that (i) the parties’ consent to the allowing of the appeal is based on apparently competent legal advice, and (ii) the parties advance plausible reasons to show that the decision of the lower court is wrong, it is likely to make an order allowing the appeal on the papers and without determining the merits.

Finally, reference was made to the unfortunate history of this litigation which had led to considerable unnecessary costs to the public purse and that it was Mostyn J’s “… tenacious adherence to his jurisprudential analysis leading to the conclusion that Cheshire West was wrongly decided that has been the root of this…”. For this reason (and in addition to allowing the appeal) it was ordered that the review of KW’s deprivation of liberty should be conducted by a different judge.

Comment

Whilst this case is mainly of interest in relation to the Court of Appeal’s powers to set aside or vary an order of a lower court without determining the merits, it also decisively brings to an end the attempts by Mostyn J (at least within these proceedings) to have Cheshire West reconsidered by the Supreme Court. It is also of

interest to the extent that the Court of Appeal considered that the use of the phrase “ to the extent to which P is deprived of his liberty it is in is best interests and lawful” contained with the ‘Re X model order’ should  be replaced  with  a more affirmative statement that “P is deprived of his liberty but the same is in his best interests and is lawful”.

Deprivation of liberty in a children’s home

A Local Authority v D and others [2015] EWHC 3125 (Fam)

Article 5 ECHR – deprivation of liberty – inherent jurisdiction

Summary

A 14-year-old boy, AB, was residing in a children’s home under an interim care order, having  previously  been  accommodated  under

s.20 of the Children Act 1989 and made subject to a child protection plan on the basis of neglect. He had moderate to severe learning disability, attention deficit hyperactivity disorder, a statement of special educational  needs, attended a special school, and was under the care of the child and adolescent mental health services. He was happy, settled, and wished to remain in the children’s home but lacked capacity to make the decision.

His care regime provided for the following:

• There were three staff members on duty during the day, and two at night, for the three

child residents.

• AB was not on one-to-one supervision within the unit and could be left unsupervised for short periods. But his behaviour plan stated:

“Staff must be aware of where AB is at all times. AB should be checked regularly. Staff must be authorised to work alone with AB. AB must never be left alone with another resident.” He was under 15-minute observations.

• Took medication for ADHD under supervision.
• He was not allowed to leave the unit (eg to go to school) unaccompanied and was closely supervised when out of the unit.
• He was only taken on public transport if calm and settled, with a staff member sat beside or

behind him.

• If he behaved negatively when out and, despite warnings, he continued, he would be immediately returned to the placement.
• If he were to leave the placement unaccompanied, staff would call social services and the police to assist with his return.
• The front door was locked at night and if he left his room, staff must redirect him back unless he wanted a drink or the toilet.

According to his social worker:

“AB is under the continuous supervision of staff, who are aware of his whereabouts at all times. AB is residing in a care setting, where he is not free to leave unsupervised. He is also not able to contact his family independently. All behaviour that is perceived to be challenging is managed with verbal redirection. AB is also on an ongoing prescription of sedative medication which alters his behaviour and is a form of chemical restraint.”

Keehan J agreed with the parties that, applying Cheshire West, the circumstances amounted to continuous supervision and control and he  was not free to leave. The focus was whether there was valid consent from those with parental responsibility.    His    Lordship    had    previously

considered this issue in Re D [2015] EWHC 922 (Fam) but in a different context, namely where parents were held to be able to consent to their 15-year-old child being admitted to and kept in a psychiatric hospital:

“26. Do the same considerations apply when a child is accommodated by a local authority pursuant to s.20 of the Children Act 1989? The only possible answer is they may do. It will all depend on the facts of the individual case. At one extreme, an agreed reception into care of a child, that is beneficial and for a short-lived period, where the parent and the local authority are working together co-operatively in the best interests of the child, may be an appropriate exercise of parental responsibility. Thus it would be appropriate for that parent to consent to the child residing in a place (for example, a hospital) for a period and in circumstances which amount to a deprivation of liberty.

1. At the other extreme, there will be cases where children have been removed from their parents’ care pursuant to a s.20 agreement as a prelude to the issue of care proceedings and where the local authority contend the threshold criteria of s.31(2) of the Children Act 1989 are satisfied. In such an event, I find it difficult to conceive of a set of circumstances where it  could properly be said that a parent’s consent to what, otherwise, would amount to a deprivation of liberty, would fall within the zone of parental responsibility of that parent. This parent’s past exercise of parental responsibility will, perforce of circumstances, have been seriously called into question and it would not be right or appropriate within the spirit of the conclusion    of    the    Supreme    Court    in

Cheshire West to permit such a parent to so consent.

1. Where a child or young person is in the care of a local authority and is subject to interim or care orders, the reasoning in paragraph 27 applies with even greater force, especially when one considers the effect of an interim care order, which includes the power of the local authority to restrict “the extent to which a parent may meet his parental responsibility for the child” (s.33(3)(b) Children Act 1989).
2. Where a child is in the care of a local

authority and subject to an interim care, or a care, order, may the local authority in the exercise          of         its                   statutory    parental responsibility (see s.33(3)(a) of the Children Act 1989) consent to what would otherwise amount to a deprivation of liberty? The answer,  in  my  judgment,  is  an  emphatic

 “no”.    In taking a child into care and instituting care proceedings, the local authority is acting as an organ of the state. To permit a local authority in such circumstances to consent to  the deprivation of liberty of a child would (1) breach Article 5 of the Convention, which provides “no one should be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law”, (2) would not afford the “proper safeguards which will secure  the legal justifications for the constraints under which they are made out”, and (3) would not meet the need for a periodic independent check on whether the arrangements made for them are in their best interests (per Lady Hale  in Cheshire West at paragraphs 56 and 57).”

Importantly, Keehan J rejected the suggestion that an interim/care order could explicitly or implicitly authorise a deprivation of liberty:

“36. In my judgment, this is not a viable option. When the court makes a care order it hands over control of the child to  the local authority such an authorisation would not, and could not, afford the necessary degree of safeguards and periodic, independent checks required by the provisions of Article 5 of the Convention. For these purposes, the local authority child care review, chaired by an independent reviewing officer, would not, in my judgment, afford the required safeguards and checks, sufficiently independent of the state.”

This left two options. Keehan J held that secure accommodation orders under s.25 of the Children Act 1989 did not provide an appropriate mechanism. They had a punitive quality, were designed for those looked after children who, by reason of their actions, were likely to abscond and suffer significant harm or injure themselves or others (para 31). In any event, AB did not satisfy the criteria and the children’s home for secure accommodation.

The only remaining route to authorisation therefore was the inherent jurisdiction. The criteria for permission, as set out in s.100(4) of the Children Act 1989, were held to be satisfied because the result could not be otherwise achieved and, if the jurisdiction was not exercised, AB was likely to suffer significant harm. This was because his placement would be unlawful, in breach of Article 5, so he would have to move to another establishment against his wishes where he would not be under constant supervision and control.  This  would  not  be  in  his  welfare  best

interests and significant harm would likely result (para 34). Accordingly the deprivation  was authorised for three months.

Paragraph 38 of the judgment provides some general observations in respect of children in need and looked after children which we set out in full:

“(1) Local authorities are under a duty to consider whether any children in need, or looked-after children, are, especially those in foster care or in a residential placement, subject to restrictions amounting to a deprivation of liberty.

1. The Cheshire West criteria must be rigorously applied to the individual circumstances of each case.
2. The comparison to be made is not with another child of the same age placed in foster care or in a residential home, but simply with another child of the same age.
3. A deprivation of liberty will be lawful if warranted under statute; for example, under s.25 of the Children Act 1989 or the Mental Health Act 1983 or under the remand provisions of LASPO 2012 or if a child has received a custodial sentence under the PCCSA 2000.
4. Where a child is not looked after,  then

an apparent deprivation of liberty may not in fact be a deprivation at all if it falls within the zone of parental responsibility exercised by his parents (see Re D). The exercise of parental responsibility may amount to a valid consent, with the consequence that the second limb of Cheshire West is not met. In those circumstances, the court will not need to make any declaration as to the lawfulness of the child's deprivation of liberty.

1. Where a child is a looked-after child, different         considerations may     apply,

regardless of whether the parents consent to the deprivation of liberty.

1. Where a child is the subject of an interim care order or a care order, it is extremely unlikely that a parent could consent to what would otherwise amount to a deprivation of liberty. In those circumstances, a local authority cannot consent to a deprivation of liberty.
2. The local authority must first consider whether s.25 of the Children Act is applicable or appropriate in the circumstances of the individual case. This will require an analysis of (1) whether any of the  regulations disapply s.25, (2) whether the intended placement is accommodation provided for the purposes of restricting liberty and, thus, secure accommodation within s.25 and (3) whether the test set out in s.25.1(a) or (b) is met.
3. If it is not, then the s.100(4) leave hurdle is likely to be crossed on the basis that any unlawful deprivation of liberty is likely to constitute significant harm.
4. Irrespective of the means by which the

court authorises the deprivation of a child's liberty, whether under s.25 or the inherent jurisdiction, the local authority should cease to impose such deprivation as soon as (1) the s.25 criteria are not met, or (2) the reasons justifying the deprivation of liberty no longer subsist. Authorisation is permissive and not prescriptive.”  (emphasis added)

Comment

The fact that MIG and MEG were held by the Supreme Court majority to be deprived of their liberty  meant  significant  implications  for  child

and transition services which we are now being felt. After all, MEG was 17 years old and subject to a care order. Her mother and the local authority, sharing parental responsibility, consented to her placement. But she was still held to be deprived. It was therefore clear that parental responsibility could not be relied upon as valid consent to a care regime for her that would otherwise engage Article 5. The issues ever since have related to: (a) When are children and young people deprived of liberty? (b) Is there any age below which parental consent would avoid Article 5? And (c) how can a deprivation be authorised?

1. The nuanced acid test

We suggest that the Supreme Court has clearly set out the different considerations that apply in respect of those under 18 and refer readers to chapter 9, paras 9.5 to 9.10, of the Law Society guidance. The difficulty is in determining what amounts to a universal degree of age- appropriate constraint in a multicultural society, discussed at paras 9.11 to 9.15. Rather than comparing AB “with another child of the same age”, we would respectfully suggest that, to entirely accord with para 79 of the Cheshire West judgment, the comparator would be “another child of the same age and relative maturity who is free from disability”.

1. Parental consent

In Re D it was held that the parents of a 15-year- old boy could  consent to his psychiatric placement so as not to bring it within Article 5. The present case suggests that the same “may” be true in relation to those “voluntarily” accommodated under s.20 of the Children Act 1989, depending upon whether it is “an appropriate exercise of parental responsibility”. We anticipate that different considerations may apply to those aged 16 and over. However, it is

now clear that, for anyone under the age of 18, the same is emphatically not true for those subject to interim/care orders.

The stark reality therefore for those working in child and transition services is that if a child or young person is under an interim/care order and satisfies the nuanced acid test, that deprivation of liberty will have to be separately authorised: the care order will not cover it.

1. Authorisation to deprive

As the judge indicated, secure accommodation orders are likely to be inappropriate for the kind of placements under discussion where welfare best interests are the paramount consideration. The inherent jurisdiction will instead have to be used and this judgment helpfully suggests that getting permission to invoke it is unlikely to be difficult where Article 5 is engaged. The Supreme Court has created the child-equivalent of the ‘Bournewood’ gap – what we have previously termed, ‘Baby Bournewood’ – and in the absence of a legislative procedure to authorise such deprivations of liberty, it falls once again upon the inherent jurisdiction to plug that gap.

According to the latest figures, as at 31 March 2015, there were 69,540 looked after children in England, of which 42,030 were under an interim/care order. A further 19,850 were under a s.20 agreement.

 

The potential number of those lacking the relevant capacity who satisfy the nuanced acid test is likely to be sizeable. To implement Cheshire West by invoking the inherent jurisdiction in such cases may well prove to be a challenge. Moreover, the judges of the High Court will need to provide the necessary procedural safeguards to satisfy Article 5, including reviews. In the present case, a three- month authorisation period was granted. But it seems likely that similar issues facing judicial adult authorisations, discussed for example in Re X and Re NRA, may well head towards judicial child authorisations.

Deprivation of liberty in the USA

Government of the United States of America v Roger Alan Giese [2015] EWHC 2733 (Admin) Article 5 ECHR – definition of unsound mind

The Government of the United States of America (the ‘Government’) appealed a decision of DJ Coleman of  21 April  2015  pursuant to  section

105 of the Extradition Act 2004 (‘The EA’) refusing a request for the extradition of the Respondent, Mr Alan Giese (‘Mr Giese’).

Background

In 2004, the State of California charged Mr Giese with a number of sexual offences, allegedly committed against a boy, who was under the age of 14 at the time, between 1998 and 2002. Mr Giese subsequently left the USA and came to the UK. He remained undetected by US authorities for many years. On 12 February 2014, the US government issued a request that Mr Giese, who it believed to be living at an address in Hampshire, be arrested and extradited to stand trial in California. The extradition request was duly certified and Mr Giese was arrested on 4 June 2014.

California is one of 20 states in the USA that has a system of ‘civil commitment’. This is a form of indeterminate confinement in a secure facility which may be imposed in civil proceedings against a person who has been convicted of, and who has served his sentence for, certain types of sexual offences and who is deemed to be mentally ill and dangerous

It was argued before DJ Coleman, sitting at Westminster Magistrates’ Court that, in accordance with s.87 EA 2003, Mr Giese’s extradition would be incompatible with his rights under the European Convention on Human Rights (ECHR), and that he should be discharged, on two grounds:

-Prisonondtinsoudviolaehisrihtsuder Arile3ECR.

-Thereouldea realrs’ thatMrGieseould besbjetoivilcommtmentn Calioriaad ththisrigtsunerAtle5(1)ECRould theeoebevioltd.

DJ Coleman found that extradition was compatible with Article 3 ECHR but incompatible with Article 5(1) ECHR. With respect to Article 5 ECHR, the test that DJ Coleman set was whether civil commitment would constitute ‘a flagrant breach of Mr Giese's Article 5 rights’. She held that, if the requirements in California for civil commitment require that the individual be of ‘unsound mind’, within the meaning of Article 5(1)(e) of the ECHR then any detention under such an order would  not  amount to  a  breach of Article 5 ECHR.

However, DJ Coleman concluded, having heard evidence of how the law is applied in California, that the number of people who may potentially fall within the category of ‘unsound mind’, and therefore be subject to civil commitment would be large, because the ‘net is cast widely, and those with a mental diagnosis which falls far short of ‘unsound mind’ (within the meaning of Article 5) are likely to be committed’ and therefore, Mr Giese’s detention amounted to a ‘flagrant’ breach of Article 5 ECHR.

In the absence of assurances by US authorities that a civil commitment order would not be sought, Mr Giese was discharged from extradition proceedings.

The US government appealed against District Judge Coleman’s decision.

Two questions were raised on appeal:

i.Wheher,firt, heeas a ‘realris’ fMr Giesebengubjetovilcommimntin Califoria.

ii.Ifso,hterthreasa ‘realris’ tat suhanoderuldbea ‘flagrntbrach’ ofMr Gies’s rigtsudr Arile5(1) ECR, apligR (Ullah) v Special Adjudicator [04]2AC33

The High Court judges concluded that DJ Coleman was correct to conclude that there was a ‘real risk’ that Mr Giese, if extradited, would be made subject to an order for civil commitment. The District Judge was also correct in concluding that if he were made subject to a civil commitment order, that would be a ‘flagrant’ denial ‘ of his Article 5 rights.

Finally, the District Judge was correct in concluding that the extradition of Mr Guises would be inconsistent with his Convention rights, so that, in accordance with s. 87(2) of the EA he must be discharged.

The US government was initially provided with 14 days in which to offer a satisfactory assurance that, should Mr Giese be found guilty, that there will be no attempt to make him the subject of a civil commitment order. On 21 October  2015, the High Court granted an extension to 30 October 2015, for assurances to be provided. If no such assurances were received within the time limit the appeal would stand dismissed.

Comment

Article 5(1) guarantees that no one shall be deprived of their liberty, save in the exceptions that are specifically identified in sub-paragraphs (a)-(e). If there is a real risk that someone can be detained in circumstances that do not fall within those exceptions, then, there must be a real risk that that person will be subject to arbitrary detention in the sense that it is not in accordance with Article 5. The Government argued that the detention of Mr Giese under a civil commitment order came within the exceptions set out in article 5(1)(a), (b) or (e) of the ECHR. The District Judge had concentrated on (e). The appeal judges took as their starting point  the  ECtHR’s  interpretation  of  ‘unsound

mind ‘ in Article 5(1)(e) considering the effect of Winterwerp, Varbanov v Bulgaria and Stanev v Bulgaria [48]. They then considered whether the Californian system, as set out in the legislation and as put into practice, was compatible with the interpretation, which the ECtHR has given to Article 5(1)(e). In this case the judges took the view, applying the narrow definition of ‘unsound mind’ in Winterwerp v The Netherlands (1979) 2 EHRR 387, that the exception in Article 5(1)(e) would not apply, because the wording of the statutory definition of ‘diagnosed mental disorder’ contained in the California Welfare and Institution Code (WIC) § 6600 (d) and how the wording was applied in practice, was too broad and imprecise.

‘[60] …the definition of ‘diagnosed mental disorder’ in WIC 6600(d), in the way it is put into practice as indicated by the evidence in this case, is incompatible with the exception of ‘ unsound mind’ in Article 5(1)(e) of the ECHR. It has been clear since Winterwerp that ‘unsound mind’, being a concept in one of the exceptions to the general rule in Article 5(1) must be given a narrow interpretation. By comparison, ‘diagnosed mental disorder’ in the WIC is a broad and imprecise concept and it is open to an interpretation that would apply to many person whose ‘diagnosis’ is no more than the type of disorder common in child sex offenders found within the prison system of either the UK or the USA.’

Beverley Taylor

Deprivation of liberty in a general hospital for a detained  MHA patient

Hot off the press is Mostyn J’s decision in An NHS Trust v A [2015] EWCOP 71, a case concerning treatment for physical illness in respect of a teenage boy who was detained under s.3 MHA 1983. Contrary to an earlier decision on this point, Re AB [2015] EWCOP 31, Mostyn J held that in such cases, any deprivation of liberty arising as a result of the treatment for physical illness could be authorized by the Court of Protection as P was not ineligible under Schedule 1A MCA 2005. Mostyn J advised that in future, any scrutiny of the Re AB decision should proceed on the basis that it inadvertently omitted a negative and therefore reached the wrong conclusion on this technical matter.

New Health and Social Care Information Centre statistics

New HSCIC figures released in October showed that detentions under the Mental Health Act have risen by almost 10% in England in the past year. Over 25,000 patients were subject to the act – an increase of 6.7% from 2014 – of whom nearly 20,000 were detained in hospitals. The figures also reveal that black and black British people, and Asian people are much more likely to be detained than white British people.

Department of Health update on deprivation of liberty

The latest circular letter from Niall Fry at the Department of Health is addressed to MCA-DoLS leads in local authorities and the NHS but is relevant to all professionals working across the health and care system. Key points to note are that:

• The Department has published an update on progress across the health and care system since the House of Lords report on the MCA. Access it at www.scie.org.uk/mca- directory/keygovernmentdocuments.asp.
• The Government has confirmed its intention to establish a new National Mental Capacity

Forum and has appointed Baroness Ilora Finlay as the new independent Chair. We are very pleased to have a special feature from Baroness Finlay in this month’s newsletter.

• The MCA Directory continues to be the “go- to” place for MCA support materials, including case summaries produced by 39

Essex Chambers. It is available at

www.scie.org.uk/mca-directory

• The DOLS consultation has generated a high level of engagement across the country. The Department has made no decision yet on the

need for and nature of legislative change but the Department’s advice and guidance is helpfully summaries in one place in an annex to the letter.

Conferences

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Conferences  at  which editors/contributors  are speaking

Cross-Border Guardianship

Adrian and Jill will be participating in a half-day seminar for CPP Seminars Scotland on 4 December at Brodies LLP in Edinburgh. For further details, and to book, see here.

MBL Court of Protection Conference, London, 11 December

Neil is chairing and speaking at this full-day conference on topics from

Editors

Alex Ruck Keene Victoria Butler-Cole Neil Allen

Annabel Lee Anna Bicarregui

Simon Edwards (P&A)

Guest contributor Beverley Taylor

Scottish contributors Adrian Ward

Jill Stavert

deprivation of liberty to medical treatment to statutory wills.   Further                                                         details here.

Advertising     conferences

and training events

If you would like your conference or training event to be included in this section in a subsequent issue, please contact one of the editors. Save  for those conferences or training events that are run by non-profit bodies, we would invite a donation of

£200 to be made to Mind in return for postings for English and Welsh events. For Scottish events, we are inviting donations to Alzheimer Scotland Action on Dementia.

Our next Newsletter will be out in early December. Please email us with any judgments or other news items which you think should be included. If you do not wish to receive this Newsletter in the future please contact [email protected]

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Editors

Alex Ruck Keene Victoria Butler-Cole Neil Allen

Annabel Lee Anna Bicarregui

Simon Edwards (P&A) Scottish contributors

Adrian Ward

Jill Stavert

CoP Cases Online

 

Use this QR code to take you directly to the CoP Cases Online section of our website

Alex Ruck Keene: [email protected]

Alex is recommended as a ‘star junior’ in Chambers & Partners 2016 for his Court of Protection work. He has in cases involving the MCA 2005 at all levels up to and including the Supreme Court. He also writes extensively about mental capacity law and policy, is an Honorary Research Lecturer at the University of Manchester, and the creator of the website www.mentalcapacitylawandpolicy.org.uk. To view full CV click here.

Victoria Butler-Cole: [email protected]

Victoria regularly appears in the Court of Protection, instructed by the Official Solicitor, family members, and statutory bodies, in welfare, financial and medical cases. Together with Alex, she co-edits the Court of Protection Law Reports for Jordans. She is a contributing editor to Clayton and Tomlinson ‘The Law of Human Rights’, a contributor to ‘Assessment of Mental Capacity’ (Law Society/BMA 2009), and a contributor to Heywood and Massey Court of Protection Practice (Sweet and Maxwell). To view full CV click here.

Neil Allen: [email protected]

Neil has particular interests in human rights, mental health and incapacity law and mainly practises in the Court of Protection. Also a lecturer at Manchester University, he teaches students in these fields, trains health, social care and legal professionals, and regularly publishes in academic books and journals. Neil is the Deputy Director of the University's Legal Advice Centre and a Trustee for a mental health charity. To view full CV click here.

Annabel Lee: [email protected]

Annabel appears frequently in the Court of Protection. Recently, she appeared in a High Court medical treatment case representing the family of a young man in a coma with a rare brain condition. She has also been instructed by local authorities, care homes and individuals in COP proceedings concerning a range of personal welfare and financial matters. Annabel also practices in the related field of human rights. To view full CV click here.

Anna Bicarregui: [email protected]

Anna regularly appears in the Court of  Protection in  cases concerning welfare issues and property and financial affairs. She acts on behalf of local authorities, family members and the Official Solicitor. Anna also provides training in COP related matters. Anna also practices in the fields of education and employment where she has particular expertise in discrimination/human rights issues. To view full CV click here.

Simon Edwards: [email protected]

Simon has wide experience of private client work raising capacity issues, including Day v Harris & Ors [2013] 3 WLR 1560, centred on the question whether Sir Malcolm Arnold had given manuscripts of his compositions to his children when in a desperate state or later when he was a patient of the Court of Protection. He has also acted in many cases where deputies or attorneys have misused P’s assets. To view full CV click here.

Adrian Ward [email protected]

Adrian is a practising Scottish solicitor, a consultant at T C Young LLP, who has specialised in and developed adult incapacity law in Scotland over more than three decades. Described in a court judgment as: “the acknowledged master of this subject, and the person who has done more than any other practitioner in Scotland to advance this area of law,” he is author of Adult Incapacity, Adults with Incapacity Legislation and several other books on the subject. To view full CV click here.

Jill Stavert: [email protected]

Professor Jill Stavert is Reader in Law within the School of Accounting, Financial

Services and Law at Edinburgh Napier University and Director of its Centre for

Mental Health and Incapacity Law Rights and Policy.   Jill is also a member of the

Law Society for Scotland’s Mental Health and Disability Sub-Committee, Alzheimer

Scotland’s Human Rights and Public Policy Committee, the South East Scotland

Research  Ethics  Committee  1,  and  the  Scottish  Human  Rights  Commission

Research  Advisory  Group.  She  has  undertaken  work  for  the  Mental  Welfare

Commission for Scotland (including its 2015 updated