The Application for permission to Deprive the Protected Party (a minor) of his Liberty in circumstances where there was no secure accommodation available.

This was an application by a Local Authority in relation to a young boy; the Protected Party, who is now 13. He previously lived with his grandmother under a Special Guardianship Order, but became the subject of a full care Order in December 2015. The Protected Party had displayed a desperate history and a catalogue of very seriously uncontrolled behaviour, damaging to both himself and others. As a result, he had been placed in no less than six different residential settings. Each setting ultimately broke down, sometimes very rapidly, as the staff there were simply unable to manage his behaviour and keep him safe.

The Local Authority would have wished by June 2017 to place the Protected Party in an approved secure accommodation placement. Such placements are very scarce and they were unable to find one. So, they hoped to place him in a unit which was not an approved secure accommodation at X. Their plan was, however, that within X he should, if necessary, be subject to considerable restraint, including physical restraint, in order to keep him safe and prevent him from absconding, as he had done on occasions in the past.

Section 25 of the Children Act 1989 makes express and detailed provision for the making of what are known as Secure Accommodation Orders. Such Orders may be made and, indeed, frequently are made by Courts, including Courts composed of lay magistrates. It is not necessary to apply to the High Court for a Secure Accommodation Order, however, as no approved secure accommodation was available, the Local Authority required the authorisation of a Court for the inevitable Deprivation of Liberty of the Protected Party. Mr Justice Holman expressed his concern over the way in which Applications of this sort were handled, saying that “the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. There is a grave risk that the safeguard of approval by the Secretary of State is being denied to some of the most damaged and vulnerable children. This is a situation which cannot go on, and I intend to draw it to the attention of the President of the Family Division.” The Judge Ordered that the child now be joined as a party to these proceedings and Cafcass must allocate a Guardian to act on his behalf. A further hearing was ordered to be fixed in one month. It was stated that the Guardian must file and serve an interim report shortly before that hearing. Further, in view of the gravity of the subject matter and the age of the child, the Judge Ordered that he must be enabled to attend the hearing if he expresses a wish to do so unless the Guardian thought it would be damaging to the health, wellbeing or emotional stability of the child to do so. In his view it was very important that in these situations, which in plain language involve a child being ‘locked up’, the child concerned should, if he wishes, have an opportunity to attend a court hearing. The exception to that is clearly if the child is so troubled that it would be damaging to his health, wellbeing or emotional stability to do so.

If you have any queries, please do not hesitate to contact Georgia Clarke (georgia.clarke@clarionsolicitors.com) or the team at COPCosts@clarionsolicitors.com.

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Can a family member or care worker be appointed as a Representative or Litigation Friend if they are partly responsible for constituting a Deprivation of Liberty?

SCC v MSA & Another (2017) EWCOP 18

This case looked at the issues of where a Protected Party’s mother should act as his Rule 3A representative, in light of the fact that she was the person responsible for implementing a restrictive care regime that constituted a deprivation of liberty.

Background

The SCCG commissioned a care package to MSA who was a young adult with severe learning disabilities and was deprived of his liberty at his family home. The Court had previously authorised that it was in MSA’s best interests to reside at home and receive the  care package. MSA was recorded as;

“unable to communicate or mobilise independently, is frequently strapped into his wheelchair, is kept for some of the time in a padded room at his home with a closed door that he cannot open, is highly resistive to personal care interventions so that physical restraint is required, and does not have external carers in the home.”

The issue that arose during the proceedings, was whether MSA’s mother, JA could or should act as his 3A Representative. The Official Solicitor (OS) submitted at a hearing on 23 March 2017, that it would be inappropriate for MSA’s representative in these proceedings and any future proceedings to be the person responsible for implementing a restrictive care regime that constituted a deprivation of liberty, where the arrangements surpassed 24 hour supervision.

Written submissions were filed by both parties and the Court agreed to consider the appropriateness of JA acting as his litigation friend. It is worth noting here, that JA did not wish to be appointed, the OS had raised the issue and guidance on the matter was sought.

Court of Protection Rules 2007

Rule 3A, requires the Court to consider in each case how best to ensure the Protected Party’s participation in proceedings was assured.

Rule 3A(2)(c) ” P’s participation should be secured by the appointment of a representative whose function shall provide the Court with information as to the matters set out in s4(6) of the Act and discharge functions as the Court may direct.

Rule 147 states “A person may act as an accredited legal representative or representative for P, if that person can fairly and competently discharge his or her functions on behalf of P.”

Rule 148B provides the Court with the power to prevent a person from acting  or terminate an appointment of a person as a litigation friend

Rule 140(1) states that a person may act as a litigation friend for P if that person,

  1. A) fairly and competently conduct proceedings on behalf of that person, and
  2. B) has no interests adverse to those of that person

The OS stated that it would not be appropriate to appoint a family member who who supported the deprivation of the Protected Party’s liberty as being in his best interests, as it would be difficult for them to challenge the deprivation due to a conflict of interest. Especially in this case, as the Protected Party was locked in a padded room at times and had to be physically restrained in a wheelchair.

The CCG argued that JA could undertake the role as she was engaged with statutory services and care providers and had a history of acting as the Protected Party’s advocate. They also stated, that there was no rule which prohibited a family member from acting.

District Judge Bellamy stated the following would need to be considered;

  1. a) Whether or not a family member or friend who is responsible in part for implementing a restrictive care arrangement is appropriate to be representative or litigation friend is fact and case specific
  2. b)The Court will have close regard to the relationship between the family member and the Protected Party
  3. c)The conduct, if any of the family member and any available evidence that he or she has acted otherwise in accordance with Rule 140(1) or Rule 147
  4. d)The Court must consider the nature of the restrictive care package and the role that the family member would play in the regime

An agreement with the OS in terms of where a family member is responsible for providing care that includes restrictive physical interventions, the Court should take great care in exercising its discretion as regard to the Protected Party’s representation in proceedings pursuant to Rule 3A. However, it would go no further than that and if a family member who was so involved put themselves forward to act as a representative or litigation friend, providing that all circumstances were scrutinised, there could be no blanket objection in principle, to undertake the role.

The Court must be satisfied that the representative can,

1.i) Elicit P’s wishes and feelings in accordance with s4(6) of the MCA known to the Court without causing any unnecessary distress to the Protected Party

2. ii) Critically examine from the Protected Party’s perspective their best interests, the pros and cons of the care package and whether it was the least restrictive option

3.iii) Review the implementation of the care package

Therefore, it was determined that providing the Protected Party’s Rights under Article 5 were adequately protected and the Court were satisfied, the role could be undertaken by a family member. In my opinion, this appears reasonable, as the family member may actually be the best person to represent the Protected Party as they have a personal connection and will more often than not understand from the Protected Party’s point of view as to what would be in their best interests.

In this case, as JA did not want to act as litigation friend, the OS would continue with the appointment.

If you require any further information, please contact; Danielle.walker@clarionsolicitors.com

 

The Liberty Protection Safeguards and the repeal of DoLS

The Deprivation of Liberty Safeguards (DoLS), the framework which provides authorisation of restrictions of an individual’s freedom, look set to be repealed and replaced by a new scheme called the ‘Liberty Protection Safeguards’.

A House of Commons Library briefing paper has raised the actions recommended by the Law Commission’s report, published in March 2017, advocating the urgent repeal of the controversial rules that were introduced into the Mental Capacity Act in 2009.

DoLS provide a six-tiered statutory framework for the approval of a deprivation in situations where a person lacks mental capacity to consent to their care arrangements, and it is deemed that it is in the best interests of the patient to restrict their freedom.

A Supreme Court judgement in the case of P V Cheshire West & Cheshire Council [2014] changed the definition of a deprivation of liberty, thus increasing the volume of individuals determined to have their liberty deprived. As a consequence of this judgement, the number of DoLS applications has increased ten-fold, the implications and repercussions of which have been significant for social care practitioners and local authorities.

The new Liberty Protection Safeguards intend to ‘streamline the process for assessing whether a deprivation of liberty is necessary’ as well as increasing the efficiency of the authorisation process. The new safeguards would also apply to a broader group of people than those currently covered by DoLS, which only apply to deprivations in care homes and hospitals. Furthermore, 16 and 17-year-olds will now be protected under the new legislation.

Best Interests Assessors are expected to be replaced by an ‘Approved Mental Capacity Professional’ (AMCP) and the requirement for a best interests assessment in every case will be removed, with the focus of the thorough assessments shifted to only the more ‘serious’ cases whereby the care arrangements are contrary to the wishes of the patient.

When a possible deprivation is identified, the responsible body (usually the local authority) will be required to arrange a medical and capacity assessment, before considering whether the proposed care placement is necessary and proportionate. The case will be then considered by an ‘independent reviewer’, who is not involved in the patient’s care. If the conditions are considered to be met, the deprivation will be approved; if there are concerns regarding the placement however, the case will be referred to an AMCP.

The Law Commission report states that the new scheme will offer ‘further protection to people who object to their proposed placement’, while increasing the efficiency of the process and striking a ‘proportionate balance between responding efficiently to the volume of cases requiring authorisation since Cheshire West and giving proper safeguards to people whose objections are too easily over-ruled under the current law.’

The Government is due to publish its response to the recommendations.

If you have any queries, please do not hesitate to contact Ethan Bradley (ethan.bradley@clarionsolicitors.com) or the team at COPCosts@clarionsolicitors.com.

 

Deprivation of Liberty Proceedings on behalf of a minor [2017] EWHC 2458 (Fam)

The Local Authority made an Application for permission to deprive the Protected Party (a minor) where there was no secure accommodation available.

The Protected Party was a 13 year old child and had a background of very serious uncontrollable behaviour which had resulted in damage to himself and others. As a result, he had been placed in over six different accommodations for his own and others’ safety. There were a number of occasions where the staff were unable to manage his behaviour or keep themselves and the Protected Party safe.

The Local Authority had repeatedly expressed their wishes to place the Protected Party in an approved secure placement, however these were rare and they were unable to find a suitable home. As a result, they had hoped it would have been possible to place him in a unit which was not deemed an approved secure accommodation. A plan was put in place that meant the Protected Party would stay at the accommodation and if necessary, be subject to considerable restraint, including physical restraint, solely for the purpose of keeping him safe.

Section 25 of the Children Act 1989 makes express and detailed provision for the making of what are known as Secure Accommodation Orders. Such Orders may be made and, indeed, frequently are made by Courts. It is not necessary to apply to the High Court for a Secure Accommodation Order, however, as there was no approved secure accommodation available, the Local Authority required the authorisation from a Court for the Deprivation of Liberty that the Protected Party would be subjected to.

Mr Justice Holman delivered his concern over the way in which applications of this kind were handled, saying that “the device of resort to the inherent jurisdiction of the High Court is operating to by-pass the important safeguard under the regulations of approval by the Secretary of State of establishments used as secure accommodation. There is a grave risk that the safeguard of approval by the Secretary of State is being denied to some of the most damaged and vulnerable children. This is a situation which cannot go on, and I intend to draw it to the attention of the President of the Family Division.”

The Judge ordered that the child now be joined as a party to these proceedings and a guardian must be appointed to act on his behalf. A further hearing was fixed for a months time, as the Judge was concerned the Protected Party had been deprived of his liberty for the past 3 months. The Judge advised further “in view of the gravity of the subject matter and the age of the child, I propose to order that he must be enabled to attend the hearing if he expresses a wish to do so unless the guardian states that in his opinion it would be damaging to the health, wellbeing or emotional stability of the child to do so. In my view it is very important that ordinarily in these situations, which in plain language involve a child being ‘locked up’, the child concerned should, if he wishes, have an opportunity to attend a court hearing. The exception to that is clearly if the child is so troubled that it would be damaging to his health, wellbeing or emotional stability to do so. But subject to that exception, if a child of sufficient age, which includes a child of this or any older age, wishes to attend a hearing of this kind, then in my view he must be enabled to do so.”

If you have any queries, please do not hesitate to contact Georgia Clarke or the team at COPCosts@clarionsolicitors.com