England and Wales Court of Protection Decisions

COURT OF PROTECTION

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/04/2018

This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the incapacitated person and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Mr Justice Williams :

1. I am concerned with a young man who is now 17 ½ years old and who I shall refer to as RT in this judgement. RT was adopted when he was five years old along with the brothers; triplets. He and his siblings had suffered serious abuse at the hands of their birth parents but they were fortunate in that KT and her husband adopted them. Unfortunately the consequences of the abuse RT suffered continue to sound now some 12 years later. RT's behavioural issues are such that it is no longer safe for him at home with his adoptive parents and siblings. The local authority have therefore applied under the Mental Capacity Act 2005 for an order pursuant to section 4 and 16 of that act to deprive RT of his liberty so that he may be placed at [a place] ¹. The arrangements for his care at that placement involve 2:1 supervision during the day and one to one at night.

These proceedings

2. These proceedings commenced on 19 October 2017 when the local authority made urgent applications under

i) Section 25 Children Act 1989,

ii) the inherent jurisdiction

iii) authorisation of deprivation of liberty under the Mental Capacity Act 2005 (MCA)

3. On 19 October 2017 Mr Justice Cohen made an order authorising RT's placement in hospital under such restraint as was necessary.
4. On 20 October 2017 Mr Justice Cohen made an interim order under the MCA authorising the deprivation of RT's liberty. He made an interim declaration pursuant to section 48 that RT appeared to lack capacity to conduct the proceedings, to make decisions as to where he should live and to make decisions as to what care and treatment he should receive.
5. On 15 December 2017 Mr Justice MacDonald heard the matter. He had available to him a report from Dr Farhy of 6 December 2017. On the basis of that report and the other evidence he had read he made a declaration pursuant to section 15 MCA that RT does not have capacity to

i) Conduct these proceedings

ii) make decisions as to where he should live

iii) make decisions as to what care and/or treatment he should receive and

iv) make decisions as to how to maintain his own safety and the safety of others

He also made an interim declaration that it was lawful to deprive RT of his liberty and approved his new placement. He also declared on an interim basis it was lawful to use such reasonable force as may be proportionate and necessary to safeguard RT's welfare. He gave further directions time-tabling the case to a final hearing on 19 January 2018.

6. On 19^th January 2018 the applications came before me. I continued the interim orders previously made by MacDonald J but I did not feel able to make final orders on that day. In particular I was concerned about whether RT's own views were sufficiently before the court and whether his interests might be better protected by the appointment of a guardian for him in the inherent jurisdiction proceedings. I made provision for the filing of further evidence and a care plan by the local authority and the Guardian to file a report. I listed the matter for a final hearing before me today.
7. I have had the benefit of considering the following material

i) the statements of Lisa Duffy,

ii) the care plan dated 6 March 2018,

iii) the Guardian's report dated 11 April

iv) Dr Farhy's report dated 6 December 2017,

v) the position statements on behalf of the local authority and the Guardian

vi) the submissions of the local authority, the Guardian and KT.

8. All are agreed that it is in RT's best interests that an order is made which enables him to remain in his current placement. In practice that means that all are agreed that a deprivation of liberty is in his best interests as the regime at his current placement is, all agree, of a nature which involves the deprivation of his liberty.

Chronology

9. RT was born in October 2000, one of three boy triplets. They have an older brother who was also taken into care. The three boys were adopted by KT and her husband when they were five. The other boys have their own stories. In June 2016 RT was accommodated by the local authority due to challenges in home and RT wanting to leave after self-harming. He returned home in January 2017. However his behaviour both at home and elsewhere became more and more challenging. His behaviour has taken a number of forms. There have been a number of occasions when he has threatened others in particular his mother, including threats with a knife. On one occasion he stabbed the sofa whilst his mother was sitting on it. On another occasion he threatened both his parents with a knife. He has also set fires in the family home. He has threatened the family pet. He has also either harmed himself or exposed himself to serious harm. He has hit his head on a table, taken an overdose of medicine, held a knife to his neck, put ligatures around his neck, run into busy roads and run away from home. A particular feature of his behaviour is that he can become obsessive about girls or young women he knows and may follow them or bombard them with messages or otherwise behave intrusively.
10. Matters came to a head in October 2017. On 12 October RT left home and went to the home of a girl. His parents were called and collected him. He threatened them with a knife, ran into the road and the police were called. He was accommodated again in a Foster placement for 3 nights. On 16 October he tried to throw himself off a balcony at school. Staff held onto him and prevented him from falling. Had he fallen he would have suffered very serious injuries if not been killed. He was taken to Whiteleaf Hospital under s.136 MHA. On 17 October Dr Vedi concluded that RT did not meet the criteria for detention under the Mental Health Act. As a result the local authority commenced these proceedings.
11. On 23 October RT was found a placement and remained there until he moved to his current placement in early January.
12. His current placement is an autism specific residential service which caters for up to 18 to 65-year-olds. RT has made good progress there. The plan is for him to remain there for some time.

Party Positions

13. The local authority, RT's mother and Guardian are all agreed that RT lacks capacity and that it is in his best interests to remain in his placement for the foreseeable future. He will be 18 in October. His mother believes this will be a significant event for him. It is clear from what he said to the Guardian that he himself regards reaching the age of 18 as a significant milestone. All the parties therefore invite me to make an order which provides for a review shortly before his 18^th birthday. However all are agreed that it is unlikely that his capacity or his best interests will be significantly different then to that which they are now. On a practical level there will be changes in those who are responsible for him within the local authority as he will move from the children's to the adult team. All parties submit that the evidence makes clear that RT will need to remain at his placement well beyond his 18^th birthday. They therefore invite the court to make a deprivation of liberty order for a period of one year with a review listed before me in early October. This will mean that Miss Rothmann will remain as his guardian and will be able to put his views before the court shortly before he becomes an adult and falls out of the jurisdiction of this court over children. Given the relationship that he has developed both with Miss Rothmann and with Mr Wainman, his solicitor, all agree that it would be helpful for RT retain their input. The terms of the order that I am invited to make are

i) pursuant to section 15 mental capacity act 2005 that RT does not have capacity to

a) conduct these proceedings

b) make decisions about where he should live,

c) make decisions as to what care and/or treatment he should receive and

d) decisions as to how to maintain his own safety and the safety of others

ii) that it is declared and ordered that it is lawful as in RT's best interest for him to be deprived of his liberty at [a place] ¹ or such other substitute placement as is arranged by the local authority.

iii) that it is lawful as in RT's best interests or the local authority or care providers to use such reasonable force as may be proportionate and necessary to safeguard RT's welfare including but not limited to

a) preventing him from leaving the placement

b) prventing him from harming himself or others

c) restricting his access to or use of any mobile telephone or other digital communication device,

d) any other reasonable circumstance concerned with safeguarding and protecting his welfare.

Legal framework

14. The Mental Capacity Act 2005 sets out the statutory scheme in respect of individuals aged over 16 who lack capacity. Section 15 gives the court the power to make Declarations as to whether a person lacks capacity to make a specified decision and the lawfulness or otherwise of any act done or to be done in relation to that person. Section 16 gives the court the power to make an order and make the decision on a person's behalf. Section 48 gives the court discretion to make an order on an interim basis and in particular if it is in the person's best interests to make the order without delay.
15. The Mental Capacity Act 2005 deals with the jurisdiction of the court by implementing into domestic law the jurisdictional provisions contained in the 2000 Convention on the International Protection of Adults; s.63 MCA 2005 and Sch 3. Part 2 and in particular paragraphs 7(1)(a), (c) and (d). Thus the courts of England and Wales would have jurisdiction over a person habitually resident in England and Wales. RT is habitually resident in England and Wales.
16. Section 2(1) of the Act provides that a person lacks capacity if,

'at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.'

It does not matter whether the impairment or disturbance is permanent or temporary. The determination of whether a person lacks capacity is to be made on the balance of probabilities. Section 3 sets out various criteria by which the court should determine whether a person is unable to make a decision.

Inability to make decisions

(1)For the purposes of section 2, a person is unable to make a decision for himself if he is unable—

(a)to understand the information relevant to the decision,

(b)to retain that information,

(c)to use or weigh that information as part of the process of making the decision, or

(d)to communicate his decision (whether by talking, using sign language or any other means).

(2)A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3)The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4)The information relevant to a decision includes information about the reasonably foreseeable consequences of—

(a)deciding one way or another, or

(b)failing to make the decision.

17. Section 1 of the Act sets out the principles applicable under the Act. Sub-section (5) provides that

'An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made in his best interests.

18. Section 4 of the Act deals with 'Best interests'

(1)In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of—

(a) the person's age or appearance, or

(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

(2)The person making the determination must consider all the relevant circumstances and, in particular, take the following steps.

(3)He must consider—

(a)whether it is likely that the person will at some time have capacity in relation to the matter in question, and

(b)if it appears likely that he will, when that is likely to be.

(4)He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.

(5)Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death.

(6) He must consider, so far as is reasonably ascertainable—

(a) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity),

(b) the beliefs and values that would be likely to influence his decision if he had capacity, and

(c) the other factors that he would be likely to consider if he were able to do so.

(7)He must take into account, if it is practicable and appropriate to consult them, the views of—

(a)anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,

(b) anyone engaged in caring for the person or interested in his welfare,

(c) any donee of a lasting power of attorney granted by the person, and

(d) any deputy appointed for the person by the court,as to what would be in the person's best interests and, in particular, as to the matters mentioned in subsection (6).

(8)The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which—

(a) are exercisable under a lasting power of attorney, or

(b) are exercisable by a person under this Act where he reasonably believes that another person lacks capacity.

(9)In the case of an act done, or a decision made, by a person other than the court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7)) he reasonably believes that what he does or decides is in the best interests of the person concerned.

(10) "Life-sustaining treatment" means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.

(11)"Relevant circumstances" are those—

(a)of which the person making the determination is aware, and

(b) which it would be reasonable to regard as relevant.

(my added emphasis)

19. The courts have emphasised in a variety of contexts that 'best interests' (or welfare) can be a very broad concept.

i) Re G (Education: Religious Upbringing) [2012] EWCA Civ 1233, 2013 1 FLR 677.

ii) Re A (A Child) 2016 EWCA 759.

iii) An NHS Trust v MB & Anor [2006] EWHC 507 (Fam).

iv) Re G (TJ) [2010] EWHC 3005 (COP).

v) Aintree University Hospitals NHS Foundation Trust v James [2013] UKSC 67, [2014] AC 591.

Deprivation of Liberty

20. In the case of Storck v Germany(2005) 43 EHRR 96 the ECtHR said that there are three broad elements to consider when determining whether or not a person is deprived of their liberty.

(i) The objective element of a person's confinement to a certain limited place for a not negligible length of time.

(ii) The additional subjective element that they have not validly consented to the confinement in question"

(iii) The confinement must be "imputable to the State"

21. In the 'Cheshire West' [2014] UKSC 19 at §49 and 63 the Supreme Court confirmed that deprivation of liberty involves a factual assessment of whether the conditions imposed cross the threshold of "continuous supervision and control and lack of freedom to leave". Continuous does not mean 24hr presence of a person but is in the nature of the conditions. The difference between restriction and deprivation of liberty is one of fact and degree in which a number of factors may be relevant. Simply asking whether a person is "confined" is not enough except in obvious cases. The "starting point" is always upon the "concrete situation" of the particular person concerned and "account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measures in question. The presence or absence of coercion is also relevant. Thus there is no single "touchstone" of what constitutes a deprivation of liberty in this or any other context. In relation to children and young people who will be subjected to some degree of restriction and control by parental action the question may be answered by comparing them to the ordinary child/young person of that age and background.
22. There are a number of procedural safeguards that must be in place in the making of such orders.

i) The child and parents must be involved in the decision making process and

ii) Any order the court makes must be based upon and justified by convincing evidence including from appropriate experts that the placement proposed is in the patients best interests.

iii) It is necessary and proportionate; necessary being met by the above criteria and proportionate having regard ton the extent of the deprivation of liberty as compared to the risk of harm protected against as compared to the next best alternative.

iv) Any order authorising a deprivation of liberty cannot be for an indefinite period and must be subject to periodic review. A failure to comply will make the order unlawful: Re BJ (Incapacitated Adult) [2010] 1 FLR 1373:

Medical Assessment of Capacity

23. Dr Eldad Farhy, a consultant psychotherapeutic and counselling psychologist assessed RT and reported on 6 December 2017. Its conclusions are

i) RT has an intellectual capacity of 59 in the extremely low range

ii) RT's adaptive functioning appears to be 57 that is extremely low being at the 0.2% and is commensurate with his poor intellectual functioning

iii) RT also suffers from deficits in adaptive functioning that may indicate high functioning autism or an incipient antisocial personality disorder

iv) Given his poor scores in the psychometric measurement of his intellectual prowess and of his adaptive functioning it is likely that he has a mild learning disability

v) as a result of his deficits he lacked the capability to recognise what is in his best interests and the risk he poses to himself and others.

24. Dr Farhy completed a certificate for the purposes of the MCA confirming that RT lacks capacity due a learning disability, autistic traits, possible antisocial personality traits. He confirmed that RT is unable to make a decision in relation to the deprivation of liberty application; that is he unable to understand the consequences of threats to his own and others' safety and that he is unable to weigh relevant information because of cognitive difficulties and his limited ability to consider emotional factors. He said it was possible that RT might regain or require capacity in the future because psychological treatment might help develop greater understanding and he might become less of a risk to himself or others. No timeframe is given for this. I infer given RT's long-standing problems and their nature that psychological treatment is likely to be a lengthy process.

Social Work Evidence

25. Ms Duffy has set out the background to the application which I have referred to in the chronology. She describes this placement as follows

11. He is provided with his own bedroom with an ensuite bathroom which has been adapted to ensure that he is unable to harm himself…. He is supported by 2:1 staff during the day whilst in placement and when out in the community, and 1:1 staff at night, with a further two members of staff to assist if required. He is supported by a team of six that are employed to support him and he has been involved in the assessment and selection process for these employees.

26. She describes him as presenting with high anxiety and when anxious and extremely impulsive and acting in extremes. In the placement he has absconded twice, he tied ligatures round his neck and tried to run in front of a moving bus. He remains fixated on women, especially younger women. A support worker has had to be moved to another home as a result of him developing a fixation on her. Following her move RT had struggled to manage his emotions. More recently he pulled the beard of a support worker and then called the police. No action has been taken by the police. He has support from psychological services as part of his package and from CAMHS. He is on medication. Education is being provided by No Limits which he is due to commence next week.
27. The care plan sets out the proposals for RT. There are a number of queries which Mrs Rothmann has identified and the care plan could be elaborated on in particular more detailed plans as to the therapeutic element. Overall she is in agreement with the plan.

RT's Mother

28. RT's mother, who clearly remains devoted to him told me a little about RT and his siblings. She also told me that he will regard his 18^th birthday as a massive milestone and he would expect that his transition to adulthood might lead to more independence. She was very clear that she thought it was important for him to have his own voice separate from her and that the introduction of Miss Rothmann was a very positive step for RT and that he greatly appreciated having his own voice.

RT's Position and that of his Guardian

29. Miss Rothmann visited RT in his placement. He understood her role and he was happy to have somebody to put his views across to the court. He was outspoken about how it feels to be subject to a deprivation of liberty order. He told Miss Rothmann he does not think he needs to be subjected to a deprivation of liberty order. He told Miss Rothmann that he thought his conduct had improved significantly and that he is doing much better, he felt ready to prove himself and that he was not a danger. He would like to work towards becoming a security guard, PCSO or a police officer. He appears to be content in his placement though clearly finds the extent to which he is supervised and monitored intrusive. He would like them to take a step back and have more freedom. He told her he is fine staying at his placement and it is better than previous ones. He would like to move into independent living as soon as possible. She notes that the care plan provides for his wishes to be considered alongside all of the other relevant factors.
30. It is clear from Miss Rothmann's report that RT is an articulate young man however it is also very clear that he has little awareness of his problems and the challenges that he faces.
31. Miss Rothmann was clear that the arrangements at his placement amount to a deprivation of liberty given the nature of the supervision and the restrictions on his freedoms with locked doors, fencing and remote access gate. She is also clear that RT lacks capacity.
32. Miss Rothmann notes that the risks to RT and those around him remain high notwithstanding a slight lessening in his challenging behaviour. Given the long-standing nature of his problems these are early days. She concludes that it is in his best interests to be deprived of his liberty. She recommends review in six months.

Analysis

33. It is clear from the capacity assessment and Dr Fahy's report that RT lacks capacity to conduct these proceedings and make decisions in respect of where he lives, decisions as to care and treatment and decisions as to maintaining his own safety. RT does not fully understand information relevant to the decision and in particular is unable to use all way that information as part of the process to make a decision. His lack of capacity arises from an impairment or disturbance in the functioning of mind, in particular his mild learning disability and his possible autistic traits and possible antisocial personality traits. Although there is a possibility that he might regain capacity given the evidence of the extent of his problems and their long-standing nature this is not likely to occur in the short term.
34. As he lacks capacity it is for me to determine what is in his best interest viewed on broad spectrum. I have sought to enable RT to be involved in the decision making and I take account of his views,
35. It is clear that RT may injure himself if not subject to the most stringent levels of supervision. He has demonstrated impulsive behaviour of the most extreme kind which has put his life at risk. It is also clear that RT can behave towards others in a highly aggressive and threatening way which puts him at risk of retaliation by third parties who do not know him. It also puts him at risk of being subject to criminal proceedings. There are particular risks relating to his communications with others through his mobile phone. There will need to some limitations on this. I am well aware that this is a bone of contention for almost every parent of a teenager and in that sense authorising restrictions of this sort are no more than many parents might impose but for RT the limits may need to go further.
36. I appreciate that RT very much would like more freedom and does not believe that he should be subject to a deprivation of liberty. His wishes though can only carry limited weight when compared with the risks he faces if he were not subjected to a very heavily level of supervision.
37. I take account of the views of the local authority and of his mother who both believe the deprivation of liberty is in his best interests.
38. Is clear that the arrangements set out in the care plan amounts to a deprivation of liberty within the 'Storck' and Cheshire West cases. The level of supervision described is far in excess of that which might be applied to even the most unruly 17-year-old in a domestic setting. It clearly amounts to continuous supervision and control. Given RT does not have capacity there is a lack of a valid consent. The deprivation of liberty is attributable to the state.

Conclusions

39. It is very clear that it is RT's best interests to remain in an environment in which he can be protected from his own impulsivity and where others are protected. The very high levels of supervision are necessary and proportionate in the particular circumstances of this case. He needs intensive support and therapeutic input in order to reduce the risks he faces. This will not be a short-term recess but is likely to take months if not years. I therefore will make a deprivation of liberty order for one year
40. RT's 18^th birthday is clearly a milestone for any teenager but I think has particular significance for RT. I will therefore list a review shortly before his 18^th birthday which in particular will enable him to have a say at that point. I consider that such a review is consistent with his Convention rights and is appropriate in both welfare and procedural terms.
41. I will make the orders sought. It is this court's responsibility to determine such matters. I understand that RT will not be happy with this decision but that is my responsibility.

Note 1   Identity of placement anonymised.    [Back]