England and Wales Court of Protection Decisions

IN THE COURT OF PROTECTION

		Royal Courts of Justice Strand, London, WC2A 2LL
		20 October 2011

Charles J :

Introduction

1. This case concerns the second Respondent who I shall refer to as D. He was born in 1962 and is therefore now 49 years old. It is common ground, and I have previously declared, that he lacks capacity to litigate and to make decisions as to where he should live and the basis upon which he should have contact with members of his family and others. The present proceedings raised issues as to where he should live, contact and whether D is being, or would be, deprived of his liberty. At an earlier stage in the proceedings D's mother, the first respondent, was asserting that he should return to live with her. On the advice of counsel, D's mother no longer pursues that argument. It is however clear from her oral evidence that she still wishes D to live with her. That oral evidence also made it clear that she does not accept, or is not prepared to accept or acknowledge, the existence of a number of points that support the conclusion that it is not in D's best interests for him to return to live with her. Those points are clearly established by the evidence or are common ground. Emotionally this is understandable but it places significant difficulties in the way of any such return and is relevant to the issues that arise relating to the long term purpose of contact. This is because it means that she does not, or is not prepared to, recognise a number of the problems and difficulties that would have to be addressed by her, with the help of others, if D was to return home.
2. At an earlier hearing I gave a number of directions. These resulted in the preparation of a schedule setting out (a) allegations which the applicant local authority was seeking to prove to support the removal of D from his mother's home and its position that it was not in his best interests for him to return to live there, and (b) the responses of D's mother to them. In my judgment, it was correctly common ground that it is now not necessary for me to hear oral evidence directed to the disputed allegations to properly inform my decision on D's residence or his contact with his mother. I shall return to this.
3. D is one of three siblings. His family has been known to social services since 1966. D and his siblings were cared for by their parents. His father died in 1997. It is clear that his mother made promises to him that she would look after D and that this is what she wanted to do, and did do for a number of years.
4. It is also clear and accepted that the mother loves her son, they have a close mother and son bond, D enjoys seeing his mother and her active future involvement in his life is a very important aspect of a regime and placement that promotes his best interests.
5. Throughout his life D has suffered from significant learning difficulties and behavioural problems. These are the source of his lack of capacity and they placed considerable burdens on his parents in caring for him. In the latter part of the 1990s he demonstrated agoraphobia and since 2004, at the latest, he has had significant difficulties with his eyesight and was diagnosed with advanced glaucoma in 2005. The present position is that, notwithstanding recent laser surgery to relieve pressure, he is effectively blind and his prognosis is that he will not regain any sight. He has also suffered significant problems with his teeth. All his upper teeth have now been removed, as have a number of his lower teeth.
6. Following the death of his father in 1997, D's mother was primarily responsible for his day-to-day care until September 2008 when D was removed from her care. Over that period D had some respite care and the reports from those who provided that care are to the effect that D's mother was generally cooperative with them. One of the places at which D had respite care was at B Rd. I mention this because, as appears later, D still mentions this placement.
7. It is clear from the records, which form part of the evidence, that over the period culminating in D's removal from his mother's care there were a number of issues raised between the local authority and D's mother concerning her care of D, her co-operation with social services and the help provided by social services. These included issues concerning hygiene and safety. The latter include issues concerning the mother's drinking. D's mother does not accept that many of the points made against her are true and she gives explanations as to others. Her overall position on the written evidence is that the criticisms made of her are not warranted and certainly did not warrant that the removal of D from her care.
8. However, the following account of the immediate circumstances that triggered the removal of D from his mother's care is effectively indisputable. They are that on the evening of 24 September 2008 the mother was arrested at around 10 pm and detained in custody overnight. The incident leading to her arrest involved alleged violence between her and her then boyfriend and third-party observers at the time have recorded, and there is no reason to believe that they have not correctly recorded, that the mother was or clearly appeared to be drunk. As I understand it, the incident leading to her arrest took place at, or in the vicinity of, the mother's home. The next morning the police visited her home and the door was answered by D whose appearance and behaviour alerted the police to the fact that he was a person suffering from disabilities and who was unable to fend for himself. The police therefore made contact with the local authority and social workers went round to the house straightaway to check on D's welfare. These social workers could not gain entry and sought the assistance of the police. This was given and entry to the house was made by forcing the back door. D was found in his bedroom and was taken to one of the respite homes he had stayed at before and where he was well known.
9. In the months leading up to this removal, the records show that there were live issues relating to the state of the home, and that the relationship between D's mother and social services had deteriorated to such an extent that she was refusing to allow the relevant social worker access to D at her home and to attend meetings to discuss his care.
10. On the written evidence disputes exist concerning such reports, but it is essentially common ground or indisputable that by that stage (i.e. September 2008) that:

i) the conditions in the home were very poor and there were significant problems with D's behaviour and in particular with what his mother described as his phobia. This was that he had no regular sleep pattern and would often be up in the night and when he did sleep he often did not sleep in his bedroom but in the living room,

ii) D's disabilities and his behaviour resulted in his mother having a considerable task in setting and implementing a constructive structure and regime for his day to day life, sleep and behaviour patterns and in managing his day to day personal care,

iii) although his mother did many things with and for D he did not have such a constructive structure and regime and there were problems relating to his eating habits and his day to day personal care,

iv) there were a number of safety hazards in the house arising from, for example, the poor state of the carpets,

v) there was a real need for repairs to be carried out to the kitchen, the bathroom and the lavatory, and

vi) generally the house was in a poor state of repair and cleanliness and many of D's belongings were kept in black bags and he was living and sleeping in a state of disorder in his bedroom and the sitting room.

11. The mother points to financial difficulties in effecting repairs and in getting her landlords to carry out appropriate repairs. She also points to difficulties in managing D's behaviour as reasons for some of the problems relating to the conditions of and in the house. It is not disputed that such difficulties existed.
12. However, it is clear (and cannot be and was not disputed save as to irrelevant matters of degree) that by at the latest September 2008:

i) D was experiencing considerable difficulties with his eyes and eyesight and his teeth,

ii) D and his mother were experiencing the difficulties and problems and living the lifestyle described in paragraph 10 above,

13. It is therefore unsurprising that in the exercise of the welfare jurisdiction of this court that:

i) on 26 September 2008, a declaration was made on a without notice and interim basis by Parker J that it was in D's best interest to reside at a care home,

ii) on 10 October 2008 an order was made by consent providing for continued interim residence at a care home and contact, and

iii) such interim orders have continued since.

14. Mediation has taken place between the parties and this has been one of the reasons why the case has not been determined earlier. In February 2009, a move to B Rd was attempted but this failed after a short period of time and D was returned to the respite placement. In March 2010, D moved to his present placement and in June 2010 regular supported weekly visits by D to his mother at home commenced. These were increased to twice-weekly in June 2011. It is clear and common ground that D enjoys these visits. An open door policy and practice has been applied to contact between D and his mother at his present placement with the result that, by prior arrangement, the mother can visit D there when she wants to. The manageress of the care home told me (and I accept) that D enjoys such visits and if they clash with, for example, an outing he prefers the visit. D's mother and the care home have been able to avoid many such clashes. More such contact would be available to D's mother, for example, by her taking part in activities or outings.
15. The view of Mr Sinclair, an independent social worker instructed by the Official Solicitor, the local authority and the Official Solicitor is that D's present placement is an exceptional one. In large measure this flows from the expertise, work and approach of the staff and management at that placement. I have had the benefit of hearing evidence on two occasions from the manageress of that placement and the content of her evidence, and the manner in which she gave it, confirms that view of the quality of the placement. As Mr Sinclair pointed out, and I recognise, the ownership and management of placements can change. I have not forgotten this, but there is no indication that this is likely to happen in the near future. It is also to be remembered that however good the care provided in such a placement those who provide it cannot provide the love and familial support that is given by family members who themselves have Article 8 rights.
16. Recent tests and a medical report on the mother support her contention that she does not drink. I accept that she now she does not have a drinking problem. Further, it is common ground that since September 2008 significant improvements and repairs have been made to the mother's home by her landlords and by the mother herself. It is therefore the case that the state of repair and cleanliness of the mother's home and her drinking are no longer live issues.

What are necessary ingredients of the day to day care of D if his best interests are to be promoted?

17. To my mind this is a central and magnetic question.
18. The situation reached at his mother's home in September 2008, and this is confirmed by what has happened since, demonstrates that D's multiple needs mean that his welfare is best promoted if he has one to one support throughout the day and support that is quickly available during the night. It is likely that he will always require that level of support.
19. This is what is provided at his present placement. Such support placed and would place considerable if not impossible burdens on his mother when he was at home because, for whatever reason, she was shouldering his day to day care at home with little outside assistance. Since that time D's eyesight has deteriorated and he cannot see which adds to the support he needs.
20. As a result of considerable and skilled work and effort at his present placement D is now conforming to a routine and has a structure to his life that he complies with and seems to enjoy. That includes a regular sleep pattern. If he was to return home, the replication of an equivalent routine and of the activities he enjoys would require his mother having considerable assistance and support in the home and the mother being able to support and work with others to support such a regime and activities. Such support would have to be provided by the local authority. It is almost inevitable that it could not replicate the continuity of personnel and one to one carers that is provided at his present placement albeit that his mother would return to being his main carer.

Where should D reside?

21. As explained in my earlier judgment given in January (A Local Authority v PD & P [2011] EWHC 501 (CoP)), the court has to choose between available alternatives. I therefore directed the local authority to make a decision whether it was prepared to provide a package of support for D (and his mother) if he moved to live with his mother and, if so, what that would be. The purpose of that direction was to make clear what the available options were absent either a change of mind by the local authority or a successful judicial review or human rights challenge.
22. 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. On advice, the mother confirmed that she was not going to attempt to judicially review that decision, and she has not mounted a human rights challenge to it. In my view, the advice leading to that stance was plainly right because on the common ground and undisputable evidence no public law or human rights challenge is arguable.
23. This view is not based on the rights and wrongs of past disputes, or disputed allegations, concerning the nature and quality of the care provided to D at home. Rather, its primary driver is the degree and nature of the support D now requires, and is likely to require for the rest of his life.
24. 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.
25. So, a decision on residence could be based on the point that the only realistically available option to provide D with the level of support that would best promote his interests is a continuance of his present placement. In one sense, that is a decision based on public law tests.
26. But, in all the circumstances of this case, the decision on residence does not have to be founded on that approach. This is because the common ground and undisputable evidence found the view that the balance of competing factors comes down firmly and clearly in favour of the view that D's short, medium and long term best interests are best promoted by:

i) a continuation of his present placement, and

ii) a plan that he will not return to live at his mother's home.

27. There are a number of strands within the reasoning that founds that conclusion and thus the conclusion that D's mother is not able to provide a home that best meets his care needs now or in the foreseeable future (save in the context of planned contact).
28. The first is that there is compelling evidence that, whilst he has been at his present placement, there have been significant improvements in D's approach to and compliance with a structure to his life that promotes his enjoyment of a number of activities, and in which his sleep pattern is maintained. The second is that he appears to be very happy there.
29. His mother was reluctant to accept these points saying that she was not at the care home, but it is clear that they are correct. His mother is due credit for her part in effecting this significant change from the unstructured and somewhat chaotic lifestyle at home through her co-operation with staff at the placement and contact with D, which is a part of his new life that he greatly enjoys. But she was wrong not to recognise the skill, dedication and hard work put in by the staff at the placement and to assert, as she did, that the manageress had simply been doing what the mother told her and effectively that she could not give the mother any useful information concerning how to best care for D.
30. This stance to the work and approach of the manageress of the present placement is a clear indication that notwithstanding her co-operation and support for contact the mother and support workers would find it very difficult to work together in her home if D was to return there to live. These difficulties would be likely to cause problems that undermined the quality of the support and care D enjoyed and importantly the stability and structure of his life.
31. D has not expressed or shown any wish to return to live at home and has not, for example, shown any desire to see or use his old bedroom on contact visits. The only place he has indicated he would, or might, rather be is B Rd. It is difficult to think of a sensible reason why he would want to live there given the failure of the attempted move there in 2009, and no-one was able to identify any such reason.
32. D's mother is now of an age that means that it is likely that even with significant help she would not be able to be primarily responsible for D's care for a long time and he will need a high support package for the rest of his life. So any return home would be likely to be time limited.
33. These strands of reasoning do not rely on a view being taken on the disputed allegations and would exist if the court found in favour of the mother on all of them. Such findings as might be made against the mother would also support the view that D's best interests are best promoted by him remaining at his present placement.
34. As I have already indicated the mother did not challenge the decision of the local authority relating to the provision of support at her home or advance an alternative source of such support, and in those circumstances she did not oppose a continuation of the present placement on the basis that it would be D's home. The Official Solicitor concluded that this would be in D's best interests and I agree with him. In reaching that conclusion neither of us have forgotten the mother's Article 8 rights, the fact that she cared for D until 2008 and that the love of a family member cannot be replicated by professional carers.

Contact

35. I gave a second judgment in January in which I concluded that it would not be appropriate for there to be interim overnight contact. At that stage, the mother's position was still that I should support a return of D to her care at home. As I have explained, through counsel her position on that changed but she still sought overnight contact on a regular basis. As I understood her oral evidence at least a part of her thinking is that this contact would and should lead to a return of D to her care at some time in the future or at least to a regime of shared care. Although her counsel understandably focused on contact this understandable position of the mother carried residence issues over into the contact issues. In any event, the contact issues require a consideration of the purpose and intended benefits of the proposed contact and a recognition that a dynamic situation will exist on the ground.
36. As is recognised in the reports of Mr Sinclair an important aspect to be considered in respect of the introduction of overnight contact is that it will entail an introduction of unsupported contact during the day and night. This involves a significant change because all of the existing contact is supported.
37. The positions adopted by the parties on the issue of overnight contact developed during the hearing. Initially, it seemed to me that the importance of the change to unsupported contact was lost sight of in the context of the consideration of a plan put forward by the local authority shortly before the hearing as to how it would support an introduction of overnight contact if (and it is an important if) the court concluded that such contact would be in D's best interests. But, by the end of the hearing and in the context of a revised support plan, the change to unsupported contact was given appropriate prominence.
38. The mother through her oral evidence and her most recent statement indicated that her position is that she does not appreciate, or will not accept, that during unsupported daytime and/or overnight contact problems may arise that would be difficult for her to deal with, and which may cause upset to D and his present settled regime of life. This is worrying and it was in this context that she indicated that in her view she had nothing to learn from the work done with D at his present placement concerning:

i) the creation, promotion and preservation of a regime which has overcome what she described as his phobia (namely a chaotic sleep pattern), and

ii) taking him out of the home having regard to the deterioration in his eyesight, his agoraphobia and learning difficulties.

It was clear from the evidence of the manageress of his present placement (and I accept) that the staff there have done a considerable amount of skilled and patient work in encouraging and supporting D in and outside that placement.

39. The mother's written evidence set out a number of activities outside the home (e.g. visits to shops and parks that D had been to before) that she thought she could do with D without any recognition of the potential problems they would involve concerning, for example, getting him there and back on foot, by public transport or by taxi. She included in the list of possible activities visits to a library and drop in centre that do not now exist (and as to one it was unclear to me on the evidence whether it ever existed). Of themselves, these errors (through lack of research) are not very significant but they provide confirmation of the point that the mother's position is effectively that:

a) she does not need help,

b) the present placement has provided little of real value and has achieved (or largely achieved) what it has by following her advice as to what D likes and how he should be cared for, and

c) she is unlikely to face problems in caring for and taking D out of the home without support.

In my judgment, in taking that position the mother is mistaken.

40. I however acknowledge and accept that whether and what problems she will face when caring for D without support and whether she can deal with them effectively is a matter of speculation and can be tested.
41. Further I acknowledge and accept (as I did in January) that notwithstanding her views on where D should live and her abilities to care for him without support it is likely that she will support and comply with any regime that is put in place to increase her contact. This is what she has done since then. It follows that in my view it is likely that D's mother would support and comply with a regime to introduce unsupported contact and so give it a good chance of success if D enjoys it or does not object to it.
42. Given that prospect of success, at this stage at the heart of the contact issues are the questions: Whether and if so how and with what purpose and aims should unsupported contact be introduced and tested? Is one of those aims the introduction of overnight contact?
43. An aspect of the arguments relating to the introduction of daytime and supported contact at home was whether it would cause disruption and whether the mother would co-operate. It is correctly urged on behalf of the mother that to her credit she has fully co-operated with the daytime supported contact and its increase to two times a week and it has not caused disruption or difficulty with D's regime and sleep pattern. Also, and importantly, D enjoys this and his other contact with his mother.
44. D also enjoys trips away from his present placement that are organised by it and during the hearing was away on a trip for a few days to a Center Parcs. This demonstrates his ability, or a view that he has the ability, to be away for limited periods from his present placement overnight without disrupting his regular routine.
45. Supported contact is inevitably intrusive and decreases both the range and the enjoyment of opportunities that a person who lacks capacity and members of his family (and others) can do together. So, I agree with the Official Solicitor that the benefits of introducing and promoting unsupported contact both during the day and overnight are that it increases and promotes the normality of family and other relationships for D. Mr Sinclair in his oral evidence indicated that if he was now starting with a blank piece of paper he might well not recommend overnight contact. But he said that, given where we now are, he supported it being tested on a human basis just in case it showed that D would be missing out on something he might "fantastically enjoy" if it was not tried. He was unable to identify how it would be ascertained that D so enjoyed such contact over and above day time contact. As I have mentioned in his reports he refers to the need to try out unsupported contact in stages and against the background of a clear description of the expectations of all concerned and back up plans to cope with problems.
46. Given the size of the home supported contact overnight would be very intrusive, it would not introduce or reflect normality and so it is very unlikely that it would provide an additional benefit for D. By the time of the hearing, in my view correctly, supported overnight contact was not sought by anyone (even as an introductory step) and the focus was on whether there should be unsupported overnight contact.
47. Mr Sinclair emphasised in his oral evidence, and I accept, that it was important to try to ensure that the "apple cart" of the regime, structure and stable base to D's life that has now been created as a result of very great effort and considerable expertise at D's present placement is not upset. The manageress expressed the same concerns but as on the last occasion took a flexible and helpful approach and did not seek to place any staffing, logistical or other problems in the way of unsupported and/or overnight contact. Rather, she was to my mind very properly and helpfully taking a best interests approach and expressing reasoned doubts as to whether the perceived advantages of overnight contact warranted the risk that it would disrupt and damage what has been achieved in respect of D's sleep pattern, regimes and stability.
48. It seems that there is some internal conflict within the local authority as to whether there should be any overnight contact. Its overall position was that if the court considered it to be in D's best interests it would agree and operate a plan to bring this about. The supervisor at the local authority who gave oral evidence indicated that she did not think that overnight contact would be in D's best interests essentially because the risks it introduced were not outweighed by the benefits it might give. But the final position of the local authority was, as I understood it, that it supported a contact regime and plan that included, or was aimed at including, infrequent unsupported overnight contact on special occasions. The first plan (Plan A) that it put before the court envisaged that the first overnight contact would be in December this year. As a result of exchanges in court concerning the change to unsupported contact, over the adjournment of the hearing it helpfully prepared a second plan (Plan B) which provides a much longer timeframe and the introduction and trial of unsupported daytime contact as a first step.
49. The Official Solicitor recommended Plan B with an aim or purpose of achieving unsupported daytime contact and infrequent special occasion (e.g. linked to birthdays, Christmas and Easter) overnight contact but submitted that at this stage and without trials of unsupported contact it was too early to determine whether unsupported overnight contact should be trialled with a view to it being introduced.
50. To my mind, Counsel for the mother realistically recognised the force of the staged approach of Plan B whilst also advancing the mother's wish for a quicker move to overnight contact. In doing this he was faced with the problem that, as I have explained, aspects of the mother's oral evidence did not sit easily with her stance through her instructions to him not to pursue an argument that D should return to live with her.
51. In my view, the considerable success of the daytime contact, D's enjoyment of it, his mother's support for it, her integral part in its success and my view on the chances of success of a plan to introduce unsupported daytime contact, lead inexorably to the conclusions that a trial of unsupported contact in the daytime is in D's best interests.
52. As was submitted on behalf of the mother the "proof of the pudding will be in the eating". There may be problems encountered in those stages but it was not suggested that the risks that they might destabilise D's present regime and its consequences for him could not be successfully managed and taken into account in deciding what further unsupported contact should take place. If successful that stage of Plan B will lead to unsupported daytime contact that should enhance the normality of D's life and his contact with his mother who loves him and looked after him until he was in his late forties.
53. The questions therefore become:

i. whether at this stage unsupported overnight contact should be ruled out, and

ii. if not whether it should now be approved, and

iii. if so whether it should now be limited to infrequent stays linked to special occasions or should be otherwise limited or left open ended.

54. To my mind, an important feature of the assessment of the risk that unsupported overnight contact will be destabilising and so damaging to D is the present attitude of his mother that I have described earlier. As I have said in my view it is likely that the mother will co-operate with Plan B but whether, as is hoped and planned, this leads to a better understanding by her of the views and successful work of others and/or of the advantages to D flowing from the stability and regime introduced into his life at his present placement, is in my view very uncertain. It will require a significant change from her position and understanding demonstrated in the witness box.
55. In my view, that oral evidence of the mother provides the basis for an argument that overnight contact should be ruled out now. This is because it showed that the prospects of significant changes in the mother's position and understanding were unlikely and although she has and will co-operate, absent change, her position and lack of understanding are most likely to have a destabilising effect when her unsupported contact with D increases.
56. Further, my present view, is that, absent significant change in the mother's position and understanding, the risk of that destabilisation occurring as a result of unsupported overnight contact is not worth taking because of the significant risk that (absent that change) it will have damaging knock on effects both to D and his mother, which include damage to the contact they both now enjoy.
57. Against that background, I have considered whether overnight contact should be ruled out now or the mother (for her benefit, in recognition of her Article 8 rights and having regard to the potential benefits for D) should be given the opportunity to demonstrate a significant change of position and understanding, coupled with an ability to care for D without support, and thereby seek unsupported overnight contact.
58. I have concluded that she should be given that opportunity, firstly because of her co-operation with, and the success of, D's supported contact with her at her home. Secondly, and in any event, I have concluded that she should have that opportunity (or it cannot be ruled out) because contact generally, and in particular changes that introduce unsupported daytime contact and an assessment of their impact, create a dynamic situation.
59. My reasoning on the need for the mother to demonstrate significant change if there is to be a trial of unsupported overnight contact, and if it is successful such overnight contact, means that it is premature to "rule in" overnight contact or to decide when and if it should be tried and assessed.
60. It would be a significant step over and above unsupported daytime contact and it carries greater risks than daytime contact both in respect of the mother's perception and the practicality of providing help if there are problems during the night. In my view it should not be attempted until there has been a successful trial of unsupported daytime contact over a period of at least 6 months to a year.
61. Given the mother's age, D's abilities and care needs, the way in which infrequent overnight contact connected to special events might be explained to him and the greater likelihood of him being confused and destabilised by more regular overnight contact, I am of the present view that it is unlikely that more regular overnight contact (and/or a regime of shared care or a return home) will ever best promote his interests. It follows that I agree with the Official Solicitor and the local authority that Plan B should be implemented on the basis that it is not aimed at a change of residence or a shared care regime. But, the dynamic situation it will create and the point that it is yet to be determined whether unsupported overnight contact should be trialled mean that in my view a limit on any overnight contact to infrequent and special occasions should not be set now.

Should there be a court review of contact

62. There is much to be said for leaving the implementation and progress of Plan B to the parties with them having a liberty to apply. But, in all the circumstances, and in particular because of my view relating to the mother's present position and understanding and the need for her make significant changes if any overnight contact is to take place, I have concluded that:

i) the litigation history supports the view that the decision as to whether that change has taken place, or is taking place, should not be left to the parties on the basis that they can apply if agreement is not reached, because this is more likely to promote disagreement and problems than continued co-operation to further D's best interests, and therefore

ii) a two day hearing for a review should be listed in June or July 2012 with a directions hearing (time estimate two hours) in February or March 2012 at which each party should file and serve a position statement and such updating evidence as they may be advised. The position statements should identify the factual and legal issues and the directions sought.

Naturally that review can be removed from the list if it is not necessary, or it could be used to deal with any live issues on deprivation of liberty or other matters.

Deprivation of liberty

63. I had the benefit of hearing helpful argument on the problems posed for courts and decision makers under DOLS (a) in respect of the determination of the question whether there is or is not a deprivation of liberty or likely to be one if certain events provided for in a regime of care were to arise, and (b) by the decision of the Court of Appeal in P & Q v Surrey CC & Others [2011] EWCA Civ 190, which the arguments before me demonstrated causes as many problems as it solves. During that argument I was told that the Court of Appeal was reconsidering the issue in an appeal from the decision of Baker J in Cheshire West and Cheshire Council v P & M [2011] EWHC 1330 (COP). That appeal has been heard and judgment is awaited.
64. In those circumstances, I have concluded that it is not necessary or appropriate for me to address this issue in this judgment on a basis that may well be overtaken by the reserved judgment of the Court of Appeal, because:

i) I am quite satisfied that the proposed care plan and regi me for D promotes his best interests and such aspects, if any, of it that mean that he is being deprived of his liberty by its implementation should be authorised. Correctly, in my view, no less restrictive regime was suggested.

ii) There is to be a review and until then I consider that a continuation of the present regime, that is an order under s. 16(2)(a) MCA that insofar as there is a deprivation of D's liberty under the present care plan/regime it is authorised in his best interests is appropriate in this case because of its history, the position now reached in it and the state of flux in the authorities. (In other cases, and to the same effect, orders authorised any deprivation of P's liberty under an identified care plan as being in P's best interests).

iii) I have reached this conclusion notwithstanding that my present view is that if the DOLS regime applies, or would apply if there was a deprivation of liberty, it should be used in preference to authorisation and review by the court. That view is based on the points made below.

iv) At present, it seems to me that in the exercise of the welfare jurisdiction and approach under the MCA the most important issue is whether consent or authorisation should be given to a care regime on behalf of a person who does not have the capacity to give consent himself. That question is not determined by whether or not the person is being deprived of his liberty but by an assessment of whether the care regime is in his best interests. This will necessarily include a determination of whether a less restrictive regime would promote P's best interests and when reviews should take place.

v) I naturally acknowledge that the DOLS regime is predicated on there being a detained resident and thus a person who is "being deprived of his liberty" (paragraph 6 of Schedule A1 to the MCA) and that for other reasons under the MCA the determination of that question is or can be said to be relevant or something that should be decided. But the approach of s. 4A (3) and (4) which refer to "giving effect to an order made under s. 16(2)(a)" recognises that the crucial issue is the best interests issue and not the question whether there is, or is not, a deprivation of liberty.

vi) Absent argument and knowledge of the approach that the Court of Appeal will take in its reserved judgment in the Cheshire case it seems to me at present that:

a) there will always be borderline cases on the question whether a person is being deprived of his liberty, and cases in which there will be a deprivation of liberty if identified contingency planning is implemented (involving say restraint) but until this occurs P will not be being deprived of his liberty,

b) in those cases it would be prudent and in accordance with a best interests approach for P, a self interest approach for the care provider and an approach that has regard to the relevant Convention rights to ensure that (i) there is no breach of Article 5, and (ii) the regime of care is reviewed to check that it remains in P's best interests and is the least restrictive available regime to bring about that result,

c) the DOLS regime can be applied in such cases of doubt and thus to cover those cases and so the "what if situation" that a court may differ from the view of the relevant assessors on the application of Article 5 and thus whether there is a deprivation of liberty and there was a need to apply the DOLS regime. Section 3 of the HRA 1998 supports that view,

d) all the qualifying requirements in the DOLS regime (see paragraph 12 of Schedule A1 to the MCA) would be appropriate, or at least not inappropriate or preliminary, matters to consider in a best interests consideration and review of a doubtful or "what if" case, or one in which if certain events occur in an emergency there would be a deprivation of liberty,

e) those requirements, and a best interests consideration within or outside them, will necessarily include a need to consider that the least restrictive available regime is put in place, and they are much easier concepts for assessors and the courts to apply, and

f) those requirements can be applied without the assessor or the court getting tied down in the difficult, time consuming and essentially unnecessary task of deciding whether or not (and if so when) the implementation of the care regime constitutes a deprivation of liberty,

and so

vii) there is much to be said for an approach under DOLS and by the court that focuses on best interests and the other qualifying requirements and provides authorisation of a (or any) deprivation liberty under an identified care regime that is so identified as the least restrictive available regime to best promote P's best interests.

65. This judgment can be reported and treated as a public document.