Judge: Charles J.
Citation:  EWHC 2675
Summary: This case is the sequel to the decision of Mr Justice Charles ( EWHC 501 (CoP)) reported in an earlier edition, in which he addressed both general case management decisions in the CoP and the powers of the CoP to address public law decisions taken by local authorities. This decision is of particular interest for the comments made upon the question of deprivation of liberty, which are sufficiently important to reproduce in full:
“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  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  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 regime 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.”
Comment: The arguments referred to by Charles J ran for the best part of two days; that he chose not then to come to a concluded view as to whether D was deprived of his liberty is an indication, perhaps, of a degree of judicial frustration at the extent to which questions of deprivation of liberty are being addressed before the Courts with an every finer degree of refinement without – sadly – an equivalent degree of clarity. It is also a useful reminder that one must not in debates regarding deprivation of liberty lose sight of the twin – linked – questions of whether circumstances are the least restrictive possible and in P’s best interests. It is, however, of note that the logical (if not necessarily unwelcome, albeit costly) consequence of this decision is that very many more individuals should be made subject to the DOLS regime on a ‘precautionary’ basis.