Strand, London, WC2A 2LL
B e f o r e :
| Buckinghamshire County Council
|- and -
|RT (by their Guardian KT)
Respondent appeared in person unrepresented
Hearing dates: 20th April 2018
Crown Copyright ©
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 :
i) Section 25 Children Act 1989,
ii) the inherent jurisdiction
iii) authorisation of deprivation of liberty under the Mental Capacity Act 2005 (MCA)
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.
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.
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.
'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.
'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.
(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)
ii) Re A (A Child) 2016 EWCA 759.
iii) An NHS Trust v MB & Anor  EWHC 507 (Fam).
iv) Re G (TJ)  EWHC 3005 (COP).
Deprivation of 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"
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)  1 FLR 1373:
Medical Assessment of Capacity
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.
Social Work Evidence
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.
RT's Position and that of his Guardian