This week the Court of Protection will conduct a judicial inquiry into the lawfulness of the actions of Hillingdon Council between 31 December 2009 and 24 December 2010 concerning the care of Steven Neary. Unusually for Court of Protection proceedings, the media have sought – and been granted – permission to watch the case. Even more unusually, they have permission to identify the individuals and the council concerned, and they are expected to report on it subject to whatever restrictions the court imposes. You can read the decision of Mr Justice Peter Jackson to permit the media to attend and identify the parties here. Part of the reason the press have been permitted to identify both Steven and his father Mark, is because the case had received considerable public exposure long before it came before the court. The presence of the media was not opposed by the council, and the judge commented that:
Steven’s circumstances are already in the public domain to a considerable extent. If the claims made by Mr Neary and the Official Solicitor are made out, the facts deserve to be known to the public. If they are not made out, it may be right for the record to be corrected.
At the time of this judgment in March a flurry of media reports about the case came out. I don’t think I read a single one that reported the law as it stands accurately. In fairness to the journalists concerned this is hardly surprising; because of the restrictions on attending and reporting on Court of Protection cases, few will have experience in these matters. Furthermore, the ‘deprivation of liberty safeguards’ which this case is concerned with are – as Ed Mitchell commented in Community Care recently – legendarily inpenetrable and badly drafted. If you want to have a look and see for yourself the safeguards are set out in Schedule A1 of the Mental Capacity Act 2005; they were passed as an amendment in a hurry to plug a gap in the law that was exposed by the Bournewood Judgment in the European Court of Human Rights. You might have more luck getting your head around them though by reading the Code of Practice. If you’re completely new to the deprivation of liberty safeguards, I wrote an introduction to them here.
Anyway, just to get this off my chest before the week is out, this is my media reporting wish list, of important facts and considerations that I hope they get straight when they come to report the result…
- Some mistakes in media reporting were understandable, but others were just downright lazy and facts were distorted to suit a particular political agenda, such as this report in the Daily Mail which blamed the Court of Protection for authorising Steven’s detention. Nothing could be further from the truth – it was the Court of Protection that terminated the detention just before Christmas 2010. The deprivation of liberty safeguards allow ‘supervisory bodies’ (PCTs for hospitals, local authorities for care homes) to authorise detention without seeking permission from the court. The Court of Protection hears appeals against detention; it was by appealing against Steven’s detention that the deprivation of liberty authorised by Hillingdon came to be terminated.
- One of the things that really frustrated me about the media reporting of the Neary case was the perpetuation of a myth that legal aid is not available for people deprived of their liberty or their families. If a person is detained under the safeguards they have a non-means tested right to legal aid, as does the ‘Relevant Person’s Representative’. The confusion in the Neary case seems to have arisen because the father, Mark Neary, was incorrectly told by a solicitor that he was not entitled to legal aid. There is a danger that people in a similar position to Mark Neary reading these reports won’t seek legal advice because they believe they cannot afford it. However, there is a loophole of sorts in the law – once a deprivation of liberty authorisation is terminated (as it was in the Neary case) the right to legal aid is no longer automatic, even if there may still be an ongoing case relating to issues in the past that arose while the detention was authorised. People will then be subject to the ordinary means and merits legal aid tests, and it is possible they will not qualify.
- The court will decide at what point, in their view, Steven came to be deprived of his liberty. It is possible that he may have been effectively detained before Hillingdon authorised it under the deprivation of liberty safeguards; even if the authorisation was lawful, any detention before it was authorised would automatically be unlawful. However, it is extremely unlikely the court will consider that Steven was deprived of his liberty from the moment he went into respite care in December 2009, especially if he did so willingly and with his father’s blessing. Determining whether or not someone is deprived of their liberty is extremely difficult and fact sensitive, the best judgment to read on this currently is P & Q (2010).
- The court will decide whether the ‘qualifying requirements’ for detention were met (see s12 of Schedule A1 for details). In all likelihood the most contentious of these will be the ‘best interests’ assessment. In order for detention authorised under the safeguards to be lawful it must have been in Steven’s best interests. ‘Best interests’ are defined by s4 Mental Capacity Act, but in addition to the ordinary ‘best interests’ requirements, detention must also be justified as necessary in order to prevent harm, and it must be proportionate to the likelihood and the severity of that harm.
- The Mental Capacity Act 2005 also says that before doing any act that restricts a persons rights, regard must have for the ‘least restrictive alternative’. In an unreported case (Re P (2010) COP 23/12/10) Mr Justice Mostyn found that this created a ‘presumption against detention’. It must be shown that no other (real and practical) alternatives to Steven’s detention were available. In another case LLBC v TG (2007) the court stressed that ‘Placement in the family should be at the top of any priority list before alternative non-family placements are considered.’ It would be odd if the court did not look at whether Hillingdon had properly assessed whether Steven could be safely cared for at home.
- It is really important to remember that, unlike detention under the Mental Health Act, under the safeguards a person cannot be detained for reasons of public protection. If ‘public protection’ comes into it at all it can only be indirectly, perhaps because the consequences of any harm a person posed to the public would rebound on them. The risk of harm to the person themselves would have to be demonstrated.
- Appointment of advocates. The DoLS require that detainees and their representatives are referred to an ‘Independent Mental Capacity Advocate’ (IMCA) if they are struggling to understand or exercise their rights. IMCA’s can be vital in helping people to understand and exercise their rights, but it is suspected that many supervisory bodies are not referring people to these services when they should be (see this report, p11). Were Steven and his father offered this support?
- One of the biggest puzzles about this case for anyone familiar with the DoLS is what took it so long to come before the Court of Protection? Media reports of Mark’s attempts to get Steven home began over summer 2010, but the case didn’t come before the court until December. Why did it take the family so long to appeal to the court to terminate the authorisation? And, just as important, why didn’t Hillingdon refer the matter there themselves? In May 2010 the Department of Health issued some guidance which stated ‘Where an authorisation and/or any of its conditions fails to stop the continuing or new opposition of a family member, then a dispute cannot be considered to have been resolved.’ It went on to say that unresolved disputes require the adjudication of the court. If the press reports from last summer are to be believed, it is hard to see why Hillingdon themselves did not seek the court’s determination on the matter themselves.
- Getting Steven home was a victory for human rights, a point the right-leaning, human-rights-bashing press seem to have conveniently forgotten. It was thanks to the European Court of Human Rights’ ruling in the Bournewood judgment that Steven had access to the safeguards at all, however flaky and badly drafted they are. Without the safeguards Steven’s family would not have had rights to non-means tested legal aid, and it would have been much harder for them to challenge the detention.
- Whatever the lawfulness of Hillingdon’s actions, we should be cautious of pinning the blame on any individual members of staff. In a ruling on an unlawful deprivation of liberty case last year the court identified significant failings by Manchester Council, but were careful to stress that they had not provided adequate training for individual staff involved in the case. Even even if individual staff had excellent training, however, the safeguards are in many ways so unclear that there is considerable room for error. This is especially true of the ‘best interests’ assessor’s role; there is very little guidance or published case law about what constitutes a ‘proportionate’ response to the risk of harm, when detention is ‘necessary’, or what alternatives they should consider in their assessment. One issue that will likely come up in future cases is whether public authorities should be expected to pay if less restrictive alternatives are available but more expensive. Whatever your views on this case, we can only hope that it sets out clearer criteria for future decision making.