England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MANCHESTER DISTRICT REGISTRY
(In Private)

		Royal Courts of Justice Strand, London, WC2A 2LL
		11 December 2009

Lord Justice Munby :

1. This is a deprivation of liberty case in which I gave judgment on 16 May 2008: Re GJ, NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam), [2008] 2 FLR 1295. I shall take that judgment as read. I add only, so as to set the scene, that the case involves BJ, a man of 23 who I found to lack capacity and whose best interests, as I explained, were served by him continuing to reside in a placement at MH notwithstanding that the regime at MH, and the implementation of the care plan for BJ devised by the local authority and which I approved, involves a deprivation of his liberty within the meaning of Article 5 of the Convention.
2. Given that BJ is being deprived of his liberty it follows as a matter of law that he is entitled to a review by the court of the lawfulness of the detention 'at reasonable intervals': Re GJ, NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam), [2008] 2 FLR 1295, at paras [15]-[16], applying what I had earlier said in Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam), [2007] 2 FLR 1083. Otherwise there will be a breach of Article 5.
3. In my judgment I considered the procedure for reviews at the interim stage before the final hearing (see paras [27]-[34]) before turning to consider reviews following the final hearing, distinguishing in this context between what I said were the necessary reviews by the court (paras [35]-[43]) and the necessary internal reviews by the local authority (paras [44]-[53]).
4. In relation to reviews by the court following the final hearing I said (para [35]) that "there should be a review at or about (but no longer than) 12 months after the final hearing, and thereafter, subject to any different order made in the meantime, at similar intervals so long as the deprivation of liberty continues." In relation to the form the review should take I said this (para [40]):

"Art 5(4) does not necessitate an oral hearing on every occasion. It must depend upon the circumstances. I am inclined to think that normally it would be appropriate for there to be an oral hearing at the first annual review but that if the position at that stage seems to have stabilised and the circumstances are such that change is unlikely within the next year the next and subsequent reviews can probably take place without an oral hearing. This must always, of course, be subject to the right of any party, or, indeed, of the judge (who has an important role to play in this respect), to require that there should in fact be an oral hearing if it appears, for example, that the evidence requires further investigation or scrutiny (whether by cross-examination or by directing further investigations or assessments) or that there are matters on which the court would be assisted by argument."

5. In relation to the frequency of internal reviews I said this (para [44]):

"Between these reviews by the court there must be regular internal reviews. In practice – and this is a practice which the Official Solicitor supports and which I commend – these are usually held once every 8 to 10 weeks. Mr Crabtree suggests that quarterly reviews may suffice. Particularly in the early months and years I would incline to agree with Mr O'Brien, but I would also agree with Mr Crabtree that one cannot be too prescriptive. As he rightly says, the review structure must always be specifically tailored to the needs of the individual to whom it applies."

6. Turning to the particular facts of the case I concluded as follows (para [56]):

"Congruent with the general approach I have outlined above, and looking to BJ's particular circumstances – as Mr O'Brien observes, the facts of BJ's case are stark – what in my judgment is required in the present case is this:

(i) in June 2008 a review before me in accordance with the directions given by Ryder J on 7 May 2008;

(ii) subject to any further information which may emerge at or as a result of that hearing, a further review in court with an oral hearing in (say) May or June 2009; and

(iii) in between those two reviews by the court, internal reviews every 8 to 10 weeks. At least for the first year I agree with Mr O'Brien that reviews should be at this level of frequency rather than the 3-monthly reviews suggested by Mr Crabtree."

7. In accordance with my judgment, the matter came back before me for further consideration. On the basis of written submissions I made an order on 4 July 2008 continuing the previous interim regime pending a further review fixed for 25 July 2008. Following a hearing on the latter date – the final hearing in the sense in which I had used that phrase in the judgment – I made a further order, continuing the previous regime and providing for a further review in May 2009.
8. In the event the May 2009 review had to be postponed. I was kept informed of developments. Moreover, as Ms Waldman on behalf of the local authority points out, the local authority was throughout continuing to hold regular internal reviews and the restrictions on BJ in relation to deprivation of liberty, residence and contact were considered at each review. If it had been considered necessary, either the local authority or the Official Solicitor could have applied to the court for an urgent hearing, but neither considered it necessary, both being satisfied (and, in my judgment, correctly satisfied) that the existing regime at MH continued to meet BJ's best interests.
9. I am quite satisfied that the delay, unfortunate though it is, has not in fact caused any prejudice to BJ. That said, it is important in cases of this kind that such delays are not allowed to occur. I very much hope that there will be no repetition in this or any other such case.
10. I emphasise the point, because in this case, as I have said, it is conceded that the regime which I have approved for BJ involves a deprivation of his liberty within the meaning of Article 5. And where in a case such as this there is a deprivation of liberty, regular reviews by the court are not merely desirable, not merely a matter of good practice; they go, as both the Strasbourg jurisprudence and the domestic case-law make clear, to the very legality of what is being done.
11. Since the hearing in July 2008 the local authority as I have said have held regular reviews. Initially they took place generally on a bi-monthly cycle (meetings on 23 September 2008, 11 September 2008, 13 January 2009, 10 March 2009, 5 April 2009 and 5 May 2009) but at the meeting on 11 August 2009 it was agreed between the local authority and the Official Solicitor that quarterly meetings would suffice in future. The most recent meeting took place on 13 November 2009.
12. The parties were agreed, in the light of how matters stood (see below), that, despite what I had said in my judgment (see Re GJ, NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam), [2008] 2 FLR 1295, at para [40], quoted in paragraph [4] above), there was no need for the present review to include an oral hearing. In the circumstances, and as I made clear in my earlier judgment it must depend upon the circumstances, I entirely agreed that an oral hearing was unnecessary. The review has accordingly been conducted on paper, with the assistance of written submissions from Mr O'Brien on behalf of the Official Solicitor dated 4 December 2009 and from Ms Waldman of the local authority dated 7 December 2009. I am grateful for their assistance.
13. In addition to the minutes of each of the meetings I have referred to, a statement from BJ's social worker and an up-dated care plan dated 18 May 2009, I have an up-dating report dated 4 December 2009 from Dr C, a Consultant in Learning Disability Psychiatry who sees BJ regularly in her outpatient psychiatry clinic, and an up-dating report dated 14 August 2009 (further up-dated to 3 September 2009) from Dr H, a Consultant Psychiatrist who had previously provided expert reports to the court dated 3 February 2008 and 7 November 2008.
14. Unsurprisingly, given BJ's circumstances, Dr C and Dr H both agree that BJ continues to lack capacity in all material respects. They also agree that the placement at MH continues to meet BJ's best interests. Dr C says that BJ has made "remarkable progress" there. Importantly, and Mr O'Brien on behalf of the Official Solicitor understandably stresses the points, Dr H notes that the restraints on BJ's liberty are "minimal" and "wholly directed to enhancing his opportunities and skills" and concludes that the arrangements for BJ at MH which I have previously approved "remain appropriate, proportionate and constitute a minimum restriction upon BJ's liberty and allow access to opportunities which he would otherwise not have" (emphasis added). Dr H further notes that there have been no episodes of physical restraint or of emergency medication this year and that BJ's challenging behaviour has very much improved. He confirms that the Care Plan has been appropriately updated.
15. BJ has resided at MH since December 2007. In the view of the local authority, supported by the Official Solicitor, he is stable and continually improving. The view of all the professionals, shared by the local authority and the Official Solicitor, is that the declarations authorising the deprivation of BJ's liberty continue to be proportionate, necessary and in his best interests. I agree, just as I agree with the latest Care Plan.
16. I shall therefore make an order carrying forward the various declarations which I last made on 25 July 2008.
17. There remain three issues for me to determine: (a) the nature and timing of future reviews by the court, (b) the nature and timing of future internal reviews by the local authority, and (c) whether the proceedings should now be transferred to the Court of Protection.
18. It is convenient at this point to return to the law.
19. Both my judgment in this case, Re GJ, NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam), [2008] 2 FLR 1295, and my earlier judgment in Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam), [2007] 2 FLR 1083, have been referred to, seemingly with approval, both by the President of the Family Division, sitting in the Court of Protection,^[1] in A Primary Care Trust and P v AH and a Local Authority [2008] EWHC 1403 (Fam), [2008] 2 FLR 1196, and by Charles J, also sitting in the Court of Protection, in GJ v The Foundation Trust and others [2009] EWHC 2972 (Fam). The opportunity the present application has afforded me to consider the topic again does not cause me to alter any of the views I have previously expressed. My starting point, therefore, is what I said in Re GJ, NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam), [2008] 2 FLR 1295.
20. At the time I delivered that judgment, the deprivation of liberty amendments to the Mental Capacity Act 2005 effected by the Mental Health Act 2007 (the new sections 4A, 4B and 16A and the new Schedules A1 and 1A) were not yet in force. They have since been brought into force, but it is correctly common ground that Schedule A1 does not apply to BJ, because his accommodation at MH is not a "hospital or care home" within the meaning of Schedule A1, paragraph 1(2).^[2] Nor does section 4B of the 2005 Act apply, for BJ's deprivation of liberty is not for either of the purposes referred to in section 4B(3). Nor does section 16A of the 2005 Act apply, for BJ is not "ineligible to be deprived of liberty by this Act", his situation not being one of those referred to in Schedule 1A.
21. It follows that, consistently with the general analysis of Article 5 set out in Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam), [2007] 2 FLR 1083, and Re GJ, NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam), [2008] 2 FLR 1295, any continuing deprivation of BJ's liberty is permissible only if sanctioned by either:

i) the Family Division of the High Court exercising its inherent jurisdiction in relation to incapacitated or vulnerable adults: see Re PS (Incapacitated or Vulnerable Adult) [2007] EWHC 623 (Fam), [2007] 2 FLR 1083, and Re GJ, NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam), [2008] 2 FLR 1295; or

ii) the Court of Protection exercising its powers in accordance with section 15(1)(c) of the 2005 Act: see Surrey County Council v MB [2007] EWHC 3085 (Fam) and A Primary Care Trust and P v AH and a Local Authority [2008] EWHC 1403 (Fam), [2008] 2 FLR 1196; or

iii) the Court of Protection in accordance with sections 4A(3), 4A(4) and 16(2)(a) of the 2005 Act.: see GJ v The Foundation Trust and others [2009] EWHC 2972 (Fam).

22. Unsurprisingly, because everything eventually turns on Article 5 and the Strasbourg jurisprudence, the Court of Protection exercises these statutory jurisdictions in accordance with the same principles as the High Court applies when exercising its inherent jurisdiction:^[3] see Surrey County Council v MB [2007] EWHC 3085 (Fam) at paras [29], [69], A Primary Care Trust and P v AH and a Local Authority [2008] EWHC 1403 (Fam), [2008] 2 FLR 1196, at paras [29]-[32], and GJ v The Foundation Trust and others [2009] EWHC 2972 (Fam) at para [23].
23. Mr O'Brien submits that, even though these provisions do not actually apply to BJ, it may nonetheless be helpful to consider the regime under Schedule A1 to the 2005 Act which would have applied if BJ had been accommodated in a place falling within Schedule A1, paragraph 1(2). As he points out, the procedure of review under Schedule A1 is what Parliament has determined to be sufficient, and presumably Article 5(4) compliant, to protect the rights of individuals such as BJ deprived of their liberty under those provisions of the 2005 Act. So even where, because of the nature of the accommodation, the safeguarding regime laid down by Schedule A1 does not apply, it nevertheless provides, he says, importance guidance as to the nature, intensity and frequency of review. I agree. I need not rehearse the provisions of Schedule A1, save to record that Mr O'Brien helpfully draws attention in this context to paragraph 42(2), which importantly requires reconsideration at the latest after one year, paragraph 102, paragraphs 103-107 and paragraph 108.
24. Mr O'Brien also helpfully draws attention to certain practical considerations. First, as he tells me, the Official Solicitor is concerned about the burden on the court should a large number of cases result in long term reviews by way of oral hearings listed before judges of the Family Division, whether sitting in the High Court or in the Court of Protection. There is, as he points out, and as is notorious, very considerable pressure on the lists in the Family Division, and requiring oral hearings by way of review in all cases of this kind would, he suggests, disproportionately intensify that pressure. The Official Solicitor therefore proposes that where the facts of the case indicate that it is appropriate, then a court review may be on the papers, but with the safeguard that the parties would be entitled to request and the judge to require an oral hearing where appropriate. That accords with what I said in Re GJ, NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam), [2008] 2 FLR 1295, at para [40]. Mr O'Brien adds that the Official Solicitor has no objection to a direction that the review be undertaken by a local nominated judge of the Court of Protection, including a nominated circuit judge or nominated district judge, whilst supporting the approach which provides for the maximum judicial continuity. Again, that is an approach with which I entirely agree.
25. The other matter relates to the public funding of BJ and others in like situation. As is well known, the solicitors whom the Official Solicitor retains on behalf of BJ are publicly funded by the Legal Services Commission (LSC) in a good number of such cases. I am told that, following discussion with those solicitors, the LSC has accepted that prior to each review a yearly public funding certificate may be sought to enable the protected party's solicitors to act on the Official Solicitor's instructions, covering the work related to annual deprivation of liberty reviews, including attendance at reviews and making representations to the court. Accordingly, the Official Solicitor remains as BJ's litigation friend and thus ensures that BJ's participation complies with Article 5. I understand that the position as to funding clients generally where repeated reviews are necessary is under consideration by the LSC.
26. Accordingly, says Mr O'Brien, having regard to the guidance in my previous judgment, the statutory scheme set out in Schedule A1 and the practical considerations, the Official Solicitor proposes that for BJ there should be:

i) internal reviews by the local authority at 6-month intervals;

ii) an additional internal review, to be called by the local authority and inviting BJ's representative, upon finding that there is a need for significant changes to the arrangements for BJ;

iii) a review by the court in November 2010 at which, inter alia, the frequency of internal reviews thereafter can be reconsidered; and

iv) reviews by the court every 12 months thereafter.

The Official Solicitor further proposes that each review by the court shall take place on the papers unless one of the parties seeks an oral hearing of the review by notifying the other parties and the court before the 1 October immediately preceding the review, or unless the judge decides that an oral hearing is appropriate. Mr O'Brien adds that the mechanisms set down in my previous order should be followed to ensure meaningful reviews.

27. Ms Waldman on behalf of the local authority makes much the same submissions and arrives at precisely the same conclusions.
28. I agree with what is proposed. It seems to me to meet both the requirements of Article 5 and the needs of BJ in his particular circumstances. I shall make an order accordingly.
29. I turn finally to the question of whether the case should now be transferred to the Court of Protection.
30. As Mr O'Brien observes, the transfer of this matter to the Court of Protection is not as significant as might otherwise be the case given the fact that Schedule A1 does not apply. Nonetheless, says the Official Solicitor, there is no good reason for not transferring the matter to the Court of Protection. If the 2005 Act had been in force at the time the proceedings were issued, the matter would have been within the jurisdiction of the Court of Protection. And there are, moreover, the practical considerations which I have already referred to in paragraph [24] above.
31. In all the circumstances I agree that the time has now come for these proceedings to be transferred to the Court of Protection and I shall so order.
32. In anticipation of this judgment the parties have drafted an agreed order which they invite me to approve. I am happy to do so.

Note 1    The report of the President’s judgment in the Family Law Reports erroneously records him as sitting in the Family Division, though it is clear from his judgment that he was in fact sitting in the Court of Protection, as correctly recorded by the report in the Family Court Reports: Re P (adult patient) (medical treatment) [2008] EWHC 1403 (Fam), [2009] 1 FCR 567.     [Back]

Note 2    MH is not registered as a care home; it is supported living accommodation owned by a Housing Association and registered as domiciliary care by CQC. BJ has an assured tenancy from the Housing Association and is provided with accommodation which is separate from that occupied by the two other people who reside in MH with him.     [Back]

Note 3    Though of course applying the “structured decision making process” prescribed by the 2005 Act: see Re P [2009] EWHC 163 (Ch), [2009] WTLR 651, at para [38], and Re M, ITW v Z [2009] EWHC 2525 (Fam) at para [29].    [Back]