In an unusual step, Sir James Munby P and OFSTED have recently issued joint guidance as to deprivation of liberty in children’s homes and residential special schools. We understand that this has been issued in response to  generalised concerns about the application of the deprivation of liberty provisions of the MCA 2005 in such places, as opposed to being a response to a specific case that has been before the courts.

The guidance is of some considerable importance for spelling out in crystal clear terms that:

  1. No application should be made to the Court of Protection in relation to the deprivation of liberty (or indeed welfare more generally) of any child under the age of 16 years old;
  2. Standard and urgent authorisations under Schedule A1 MCA 2005 have no application to children’s homes as they only apply to hospitals and care homes and only apply to those over the age of 18 years old;
  3. Orders of the Court of Protection authorising a deprivation of liberty by non-secure children’s homes or residential special schools should not be sought or made and they should not be advanced or relied on to permit such homes and schools to act in breach of the Regulations that apply to them;
  4. The MHA 1983 Code of Practice (referred to approvingly by analogy in R (C) v A Local Authority [2011] EWHC 1539 (Admin) the ‘blue room’ case) and other Guidance may be relevant but do not override the Regulations and Guidance directed towards children’s homes and schools.

The guidance is also of interest for an entirely separate reason. It is, as far as we aware, the first statement in which (even if which extra- judicially) confirmation has been given of the status of an order made under s.16  MCA  2005 authorising a deprivation of liberty. As the Guidance notes at paragraph (2), such an order “may authorise (not require) the detention of that person. Any such order is a decision on behalf of the person who lacks capacity - it is not like an injunction aimed at requiring third parties to take steps to facilitate the detention of that young person.” This is perhaps a rather obvious point, but it does also give rise to an interesting logical conundrum that we are aware has been floated – but not decided – in cases in which we have appeared: if the court is taking the decision on P’s behalf, then why is such a decision not ‘substituted consent’ to the arrangements that – objectively – amount to a deprivation of liberty. If so, does that not negate the very existence of a deprivation of liberty? Such a proposition has a distinctly Alice in Wonderland quality about it, and it is one that we would find deeply troubling, but we note that the Scottish Law Commission in their 2012 discussion paper as to how Scotland should close the Bournewood Gap appear at least to have flirted with this idea upon the basis of the decision of the ECtHR in Stanev v Bulgaria [2012] ECHR 46 (Application no. 36760/06):

6.73 The relevance of consent to whether there is a deprivation of liberty at all has not featured to a great extent in any decision of the European Court. But the Court [in Stanev] has commented on the possible role of a substitute decision-maker in this context:

‘The Court observes in this connection that there are situations where the wishes of a person with impaired mental faculties may validly be replaced  by those of another person acting in the context of a protective measure and that it is sometimes difficult to ascertain the true wishes or preferences of the person concerned’.[239]

It would appear that ‘valid replacement’ of the wishes of the person with incapacity would prevent the regime under which he or she is living from being a deprivation of liberty at all. It may therefore be that Scots law could make specific provision for the giving of consent by substitute decision-makers to care of a person with incapacity in conditions which, absent such  consent, would amount to deprivation of liberty.”

We await with interest further news from north of the border in this regard…