P is a 34 year old man who was born on 2nd November 1980. P has autism, ataxic cerebral palsy, hearing and visual impairments and a learning disability. Proceedings were issued by NYCC on 7th September 2011.
There was no dispute between the parties that P lacked capacity to conduct proceedings and make decisions about his tenancy, where he was to live and his care needs. There was also no dispute that P was being deprived of his liberty.
P had been in his current placement, a ground floor flat, since 2006. P’s care package was jointly funded with 75% of costs being met by the Clinical Commissioning Group (‘CCG’) and the balance by NYCC. It was not until August 2013 that NYCC accepted that it was responsible for meeting P’s accommodation needs.
P’s flat is very small with no outside space. P cannot stand independently and the flat is too small to accommodate the wheelchair; therefore P moves by pulling himself along the floor and up to his bed and up on to chairs. As a result of pulling himself around like this P has sustained painful ‘bursitis’ in both knees and he also has ‘calluses’ to his knees and ankles. If P was not taken out he was confined to his flat.
The court commissioned several experts and the issue that remained unresolved was the issue as to P’s accommodation.
The court visited P at his flat.
Arguments for determination
The Official Solicitor (‘OS’) on behalf of P argued that P’s unsoundness of mind did not warrant the restrictiveness of his current care; and it was in P’s best interests to move to an alternative placement as soon as possible. The OS pointed out that it was only when the court became involved and instructed experts in the case that P’s care regime became less restrictive and there was a reduction in P’s challenging behaviour.
NYCC accepted that P was being deprived of his liberty but that the current accommodation is the only available option and another outcome cannot be achieved in a less restrictive way. NYCC stated that the court does not have jurisdiction to require it to find an alternative property that would not ordinarily be available to P. NYCC sought a final declaration that P’s deprivation of liberty was lawful.
The CCG supported NYCC.
At paragraph 13 of District Judge Glentworth’s judgment he referred to Article 5; sections 4A and 16(2) of the Mental Capacity Act 2005 (‘the Act’) and the decision in Re X  EWCOP 25 at paragraph 14 confirming the requirements set out in Winterwerp v Netherlands (1979) 2 EHRR 387:
‘(i) that there must be medical evidence establishing unsoundness of mind;
(ii) of a kind which warrants the proposed measures; and
(iii) which is persisting at the time when decision is taken.’
The court also considered the Court of Appeal’s judgment in Re MN (Adult)  EWCA Civ 411 whereby it dismissed the appeal against a judgment of Eleanor King J who, amongst other things, stated that the court can only make decisions on behalf of the patient that he would be able to make if he had capacity. The court can only make decisions from the options available to it.
The court accepted the position of the OS and at paragraph 28 stated:
"The Official Solicitor makes the point that the reference in Re MN to the ability of the Court of Protection to explore the care plan put forward by a public authority and the inability of the Court to compel a public authority to agree to a care plan which it is not willing to implement does not apply when the issue is the right to liberty under Article 5. I accept that analysis.”
The court did not authorise P’s deprivation of liberty at his current accommodation on the basis that nothing else is available.
This case had gone on since 2011 although it was apparent that the accommodation did not meet P’s needs way back in 2006 when an occupational therapy assessment was undertaken.
The court held that NYCC was responsible for the delay for the following reasons:-
- It took almost two years since proceedings started before NYCC accepted it was responsible for P’s accommodation;
- It tried to pass its responsibility to the care provider to search for alternative accommodation;
- NYCC failed to deal with the issue of accommodation in the process of best interests in March 2014;
- Lengthy and detailed work had to be commissioned to consider the options for long term care and NYCC failed to approach the task with energy and imagination;
- The Housing provider was not provided with all the relevant material for it to make a decision;
- The search was unnecessarily limited as no consideration was given to shared outside areas;
- No property was likely to be found as P remained in the Bronze category of housing need (instead of Gold).
It is a warning to local authorities and care providers to approach the task of establishing what is in the P’s best interest and making a real effort to find or agree alternative care packages/living arrangements; otherwise they will be left in a position where the patient may well be detained unlawfully.
Read the full text of the judgment on Bailii