And while we wait for the Cheshire ruling…

*Drums fingers on the desk*.  Everybody’s waiting for the Court of Appeal ruling in Cheshire West and Chester Council v P.  The Cheshire case of course was the one where the naughty local authority rewrote care records after a hearing to disguise the degree of physical intervention (ie. restraint) that was occurring in P’s care.  It was this deceit by the local authority that was picked up on in news reports, but at the time I wrote that one of the most interesting things about the case was that it threw yet another spanner in the works as to the meaning of deprivation of liberty.  Specifically I wrote:

The Court of Appeal ruling on the case in P & Q (2011) offered some welcome clarity on the [meaning of deprivation of liberty]… Their Lordships proposed instead that whether or not a person is ‘objecting’ to their placement, and whether or not it is a ‘normal’ setting or a ‘a hospital designed for compulsory detentions like Bournewood’ [28] were relevant to whether deprivation of liberty was occurring. However, it seems to me to be difficult to place… Re P in this alternative schema from the superior court… P [is not] reported to be ‘objecting’ to [his] placements, and [the service is] fairly ‘normal’ settings for people with learning disabilities or autism to be cared for in the community. In Re P, it was explicitly acknowledged that care was taken to give P as normal a life as is possible, and that the establishment was similar in many respects to those identified by Wilson LJ as being ‘not designed for compulsory detention’ [58]. Despite this, [he was] found to be deprived of [his] liberty.

I went on to say that whilst I was personally more in agreement with the approach taken by Baker J than the court in P and Q, the bigger picture was that this added to a lack of clarity as to the meaning of deprivation of liberty in social care:

The courts are quick to point out that ‘All cases turn on their specific facts’ (Re P, 57), but they seem to me to be in danger of becoming so ‘fact sensitive’ that it is difficult for outside observers to extract any clear principles that could help them determine whether a given situation amounts to a deprivation of liberty, unless it closely mirrors published cases.

Anyway, I feel vindicated for thinking the ruling was problematic (even if I agreed with it) as I hear that Cheshire West and Chester Council have appealed the ruling by Baker J that P was deprived of his liberty.  Presumably they have done so on the grounds that it is out of accordance with the ruling in P and Q.  I do hope they didn’t appeal it on the grounds that if P was deprived of his liberty then so were countless other people in social care and it would overwhelm local authorities and the courts…  I’m afraid that I personally take the view “let justice be done though the heavens may fall” on the scope of the deprivation of liberty safeguards.  But I suppose from the safe distance of the academe one can say that; probably a lot more comfortably than someone practising within the system could.
Anyway, I’ll offer more thoughts on the meaning of deprivation of liberty when Cheshire’s out, but while we wait Charles J has published a judgment on quite an interesting case: A Local Authority v PB & Anor [2011].  The case is about another person called ‘P’, and since Charles J (unhelpfully for the purposes of writing about it, and also rather untransparently) hasn’t identified the local authority, I’ll refer to the recent case as ‘Re P’ and the Cheshire case as the Cheshire case.  Two earlier transcripts for Re P were published in which Charles J basically directed that the parties to the case sort out what were Court of Protection issues and what were public law issues, and then come back to him.
This messy intersection of community care law and mental capacity law is a geeky area of interest for me.  At the time of the earlier judgments I considered whether local authorities might be under positive obligations to provide additional resources to support people in their own home, to obviate the need for detention.  I concluded that the state of law at the time was uncertain, but more recently it was put to me by a very esteemed lawyer (who I shan’t embarrass by naming) that the answer might lie in the Limbuela case (to save space – there’s an excellent summary and discussion by Rosalind English here).  I have to say I don’t entirely follow the argument, but the gist of it seemed to be that while the state doesn’t ordinarily have a duty to provide care in a person’s own home, but it becomes responsible at the point it starts interfering with things like the right to family life, and the right to liberty.  In short, the argument seemed to run, if a public authority was proposing a course of action that would seriously interfere with a person’s family life or liberty, then it engaged a degree of positive obligations to provide the level of support required to obviate the need for that interference.  At a personal level I like and agree with that argument; at a legal level I’m not sure how you get it out of Limbuela, which is about Article 3 in any case, but as I said this person was a much better lawyer than I so perhaps I just need to think harder on it.
Anyway, in Re P it seems as if public law issues were in the background.  Essentially the court was asked to decide whether it was in P’s best interests to return to his mother’s care, or remain in a care home (that he had been removed to under a ‘without notice’ application to the court).  There were background allegations of the mother drinking and the home being unsanitary, and a chaotic day to day existence, but the drinking and unsanitariness issues had now been resolved.  What was not resolved, however, was how the mother would cope by herself if P did return to her care:

The local authority confirmed that it was not prepared to offer a supported placement at home that would provide one to one support during the day. [22] …  The choice was therefore between the present placement and regime and a return home on the basis that the mother would again shoulder the day to day care of D with some respite care. The burdens such a return home would place on D’s mother would be such that it is far more likely than not that she would not provide D with the level of supported care that is necessary to best promote his best interests. [24]

The judge decided that it was better that P remain in the care home, with contact with his mother.  The question that arises for me is whether a return home would have been a more feasible option if there was a better package of support offered for the mother.  There are various reasons in this case for thinking that it still might not.  One reason is that P apparently was quite happy showed no signs of wanting to go home (a pretty difficult point to ignore), but there was also a sense that the level of external involvement needed in the family home to continue to offer P an adequate level of support would have been a massive interference with the family life of P and his mother.  In another case posing similar issues at the public law/best interests intersection, the court decided that a woman was better off with her husband even with a relatively low package of support on offer (discussed here).  In that case the judge felt that the public law issues in the background may have wrongly gone unchallenged.  The fundamental difference between these cases seemed to be a) the perception of the carer by the court; b) the expressed wishes of ‘P’.  In essence, key factors in these types of family home vs. institution decisions are whether the carers are viewed as “good” by the court, and whether the person themselves expresses a wish to go home.
Anyway, overall this case wasn’t an ideal test ground for my thesis that a possible deprivation of liberty may create positive obligations to support somebody in the family home, because in this case there were good reasons for thinking it wasn’t the best option even if they did.  In fact, that may in fact be the reason the local authority didn’t put that option on the table (although cynically I do wonder if “best value” was a factor as well).  For the time being the law seems to be that the menu of options for best interests decision is pre-determined by public law, and not vice-versa.
And in any case, the issue around possible detention prompting a requirement for support at home couldn’t be settled in this case because – extraordinarily but understandably – the judge decided not to pronounce on whether or not P was detained.  As often happens at early stage hearings, he essentially said that to the extent that P was deprived  of his liberty, he authorised it, but he wasn’t prepared to say whether he was or not.  He recommended that everybody else take a cautious approach and authorise where there was a possibility a person might be deprived of their liberty, but declined to add to the tangled web of case law on what does and does not engage Article 5 himself.  The reason for this is that Charles J, like everybody else, is waiting for the ruling on the Cheshire case…

[Postscript: I just wanted to add what the barristers at 39 Essex Street had to say about the decision by Charles J not to declare whether P was deprived of his liberty or not:

…an  indication, perhaps, of a degree of judicial frustration at the extent to which questions of deprivation of liberty are  being  addressed  before  the  Courts  with  an every finer degree of refinement without  – sadly –  an  equivalent  degree  of  clarity.

From the October newsletter, which should be up here soon.] 


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