Judge: Peter Jackson J.
Citation:  EWHC 3321
Summary: This case concerned a 45 year old man with an acquired brain injury who suffered from mental health problems as well as lacking capacity to make decisions about his residence. He was the subject of a guardianship order under s.7 MHA 1983, and was also the subject of a standard authorisation.
Mr C was required by the local authority (as guardian) to reside at a care home, which had locked doors. He was subject to 1:1 supervision inside and outside the home, including when on trips to his family (this at their request). If Mr C tried to leave the home unescorted, he would be distracted, but restraint was apparently not used. Mr C gave oral evidence at the hearing and said that he was stressed by the guardianship and DOLS regimes and wanted both the order and the authorisation lifted. He did not like the care home or his fellow residents and wanted to live somewhere else.
The judge found that Mr C was not ineligible to be deprived of his liberty under Schedule A1, notwithstanding the guardianship order. However, he found on the facts that Mr C was not deprived of his liberty, saying:
‘I accept that Mr C is acutely anxious about the restraints upon him, being more aware of his predicament than the subjects of previous reported cases. On the other hand, the restraints upon him within and outside the care home are relatively lighter. The existence of locked doors and a requirement of supervision are not in themselves a deprivation of liberty, where their purpose is to protect a resident from the consequence of an epileptic fit, or harm caused by a lack of awareness of risk, or from self-harm. The limit on the number of outings as a consequence of staffing levels does not tip the balance, when Mr C in fact has quite regular access to the community and to his family.’
The judge relied on the decision of the Court of Appeal in the Chester West case, noting that ‘in the present case Mr C undoubtedly wants to live somewhere else, but this is a reflection of his unhappiness with the care home. He would like to be able to live an unconfined life in the community, but this is not realistically possible due to the extent of his difficulties. I distinguish his situation from those where a person has been removed from a home that is still realistically available.’ The judge did not accept that a proposed rehabilitation placement, identified by the independent social worker who had been instructed in the proceedings, counted as an option that was actually available. The independent social worker had concluded that the present arrangement was not in Mr C’s best interests and that his care plan and place of residence should change.
The judge also considered whether the guardianship order would have been sufficient to authorise a deprivation of liberty, if the same had existed. He found that it did not, relying on paragraph 13.16 of the MCA Code of Practice, and saying that guardianship does not include the power to prevent a person from leaving their place of residence.
The judge also interpreted the decision of Charles J in GJ v The Foundation Trust and others  EWHC (Fam) 2972 as meaning that the MHA has primacy over the MCA as a general principle, not just in the specific circumstances with which GJ was concerned. He said ‘there are good reasons why the provisions of the MHA should prevail where they apply. It is a self-contained system with inbuilt checks and balances and it is well understood by professionals working in the field. It is cheaper than the Court of Protection.’ However, where a guardianship order is not working, because the subject of the order disagrees with the requirements imposed by the guardian, it would be appropriate for that dispute to be determined by the Court of Protection (assuming the person lacks capacity). But, the Court of Protection could not do so while the guardianship order was in place because it would have no jurisdiction, by virtue of s.8 MHA 1983. The judge envisaged that in such cases, the guardianship order should be discharged, so that the Court of Protection could determine the fundamental ‘best interests’ dispute.
Comment: This case is of interest from a number of angles. First, it appears to the authors, that as feared, the Court of Appeal’s decision in Chester West has led to the wrong approach being taken to the question of whether there is a deprivation of liberty. It is somewhat surprising to the authors that a person who objects to living in a care home, but who is required to live there against his wishes, is not being deprived of his liberty. The fact that Mr C could go on frequent outings, and the possibility that 1:1 supervision may have been required in any setting due to his care needs, do not seem to alter the fundamental reality of Mr C’s position. The judge’s decision appears to have turned on the fact that there was no ‘actual’ alternative placement available to Mr C. The danger of this approach is that where, as here, the local authority has not investigated or put forward any alternative placement (because they believe that the present placement is best), someone in Mr C’s position has no meaningful way of presenting an alternative option to the court. Mr C’s lack of capacity and lack of ability to control and manage his own affairs effectively works against him by preventing him from accessing the safeguards of the DOLS regime.
It seems to the authors that Mr C was deprived of his liberty, albeit that the deprivation of liberty may have been proportionate and in his best interests given the (possible) lack of a better alternative – and that Mr C may have been deprived of his liberty in any placement, because resistance to care was said to be an intrinsic part of his condition.
Although Mr C was stressed by the DOLS authorisation, without its protection, how is he to require the local authority to continue to monitor his placement, and to consider alternatives? The guardianship order had been renewed despite his opposition to the placement, and there was thus no incentive for the local authority to think creatively about alternative placements such as the one recommended by the independent social worker. Although the MHA may well have the advantages identified by the judge, it appears that in Mr C’s case, it had not worked to promote a comprehensive review of his situation or the identification of alternative arrangements for his care and residence which may have been more acceptable to him.
The judgment is also of interest for its conclusion that a guardianship order cannot also authorise a deprivation of liberty. Although the Code of Practice asserts this to be the case, there are a number of commentators (and other judges) who take a different view. The issue does not appear to have been argued fully, and no detailed reasons for the judge’s conclusion are given. No doubt it will be raised again in the future, as this part of the judgment was obiter.
Finally, we note that there appears to be a difference of opinion between the court and the Department of Health as to whether the analysis of Charles J in the GJ case should be read as laying down a general principle of the primacy of the MHA over the MCA, or whether that principle was tied to the ‘Case E’ scenario under Schedule 1A. In the case of DN v Northumberland Tyne and Wear NHS Foundation Trust  UKUT 327 (AAC), a letter from the DH to the court was reproduced, which stated that ‘it was specifically in the context of the interpretation of Case E that Mr Justice Charles talked in J about the MHA having “primacy”. Outside that context, the Department does not understand him to have been making a more general statement about the relationship between the two Acts. Indeed, as set out above, the Department does not think it would actually be possible to say, in general, which has primacy over the other.’ Yet further complication in what Mr Justice Peter Jackson observed in this case to be a complex and inaccessible area of law.