Judge: Peter Jackson J.
Citation:  EWHC 1377
Summary: This well-publicised judgment addresses the responsibilities of public authorities who decide that incapacitated adults should be removed from their families. The London Borough of Hillingdon had determined that Steven Neary, a young autistic man, should not be returned to the care of his father from a respite service.
Steven initially went to a respite facility a little earlier than planned because his father was unwell and exhausted from caring for Steven over the Christmas period. His father wanted him to stay for a couple of days, but agreed to an extension of a couple of weeks; however, he expected that Steven would then return home. In fact, the local authority started a process of assessment of Steven’s needs and decided that he needed to stay in the unit for longer, apparently primarily based on concern as to whether Steven’s needs could be met at home even with support due to his behaviour, and on the fact that he had gained a considerable amount of weight while in the care of his father, most likely due to the use of food as a mechanism for managing Steven’s behaviour.
The evidence before the court was that the local authority did not properly discuss its concerns or its plans for Steven with his father, and that Steven himself expressed a consistent desire to return home.
No DOLS authorisations were granted until some four months after Steven had been kept at the respite unit. The DOLS process was triggered because Steven wandered out of the unit and was involved in an incident with a member of public. The first DOLS best interests assessment determined that it was in Steven’s best interests to remain at the respite unit but did not look in any detail at the possibility of a return home, nor did it suggest as a condition of the authorisation that an application be made to the Court of Protection. The court found that Hillingdon had breached Steven Neary’s rights under Article 8 ECHR by preventing him from living with his father, and had breached his rights under Article 5(1) ECHR by unlawfully depriving him of his liberty, even during periods where there was a standard authorisation in place under Schedule A1. Hillingdon further breached Steven Neary’s rights under Article 5(4) by failing to bring the dispute to court, failing to appoint an IMCA at a suitable juncture, and failing to conduct an effective review of the DOLS best interests assessments under Part 8 of Schedule A1.
The judge, Mr Justice Peter Jackson, identified three areas of practical guidance to practitioners:
(1) The purpose of DOL authorisations and of the Court of Protection:
Significant welfare issues that cannot be resolved by discussion should be placed before the Court of Protection, where decisions can be taken as a matter of urgency where necessary. The DOL scheme is an important safeguard against arbitrary detention. Where stringent conditions are met, it allows a managing authority to deprive a person of liberty at a particular place. It is not to be used by a local authority as a means of getting its own way on the question of whether it is in the person’s best interests to be in the place at all. Using the DOL regime in that way turns the spirit of the Mental Capacity Act 2005 on its head, with a code designed to protect the liberty of vulnerable people being used instead as an instrument of confinement. In this case, far from being a safeguard, the way in which the DOL process was used masked the real deprivation of liberty, which was the refusal to allow Steven to go home.
Poor decision-making processes often lead to bad decisions. Where a local authority wears a number of hats, it should be clear about who is responsible for its direction. Here, one sub-department of Hillingdon’s adult social services provides social work support and another is responsible for running facilities such as the support unit. At the same time, senior social workers represent the supervisory body that determines whether or not a DOL authorisation should be granted. In that situation, welfare planning should be directed by the team to which the allocated social worker belongs, although there will of course be the closest liaison with those who run the support facilities. The tail of service provision, however expert and specialised, should not wag the dog of welfare planning.
(3) The responsibilities of the supervisory body:
The granting of DOL standard authorisations is a matter for the local authority in its role as a supervisory body. The responsibilities of a supervisory body, correctly understood, require it to scrutinise the assessment it receives with independence and a degree of care that is appropriate to the seriousness of the decision and to the circumstances of the individual case that are or should be known to it. Where, as here, a supervisory body grants authorisations on the basis of perfunctory scrutiny of superficial best interests assessments, it cannot expect the authorisations to be legally valid.
The judge found that the local authority had never carried out a proper best interests assessment which gave proper regard to the importance of living with one’s family:
“Nowhere in their very full records of Steven’s year in care is there any mention of the supposition that he should be at home, other things being equal, or the disadvantages to him of living away from his family, still less an attempt to weigh those disadvantages against the supposed advantages of care elsewhere. No acknowledgement ever appears of the unique bond between Steven and his father, or of the priceless importance to a dependent person of the personal element in care by a parent rather than a stranger, however committed. No attempt was made at the outset to carry out a genuinely balanced best interests assessment, nor was one attempted subsequently.”
The importance of the best interests assessments carried out under the DOLS system was highlighted:
“Although the framework of the Act requires the supervising body to commission a number of paper assessments before granting a standard authorisation, the best interests assessment is anything but a routine piece of paperwork. Properly viewed, it should be seen as a cornerstone of the protection that the DOL safeguards offer to people facing deprivation of liberty if they are to be effective as safeguards at all.
The corollary of this, in my view, is that the supervisory body that receives the best interests assessment must actively supervise the process by scrutinising the assessment with independence and with a degree of care that is appropriate to the seriousness of the decision and the circumstances of the individual case that are or should be known to it.”
The judge found that even if the BI assessment is positive, and even though Schedule A1 says that the supervisory body MUST grant an authorisation if all the assessments are positive, the situation is not so clear cut:
“This obligation must be read in the light of the overall scheme of the schedule, which cannot be to require the supervisory body to grant an authorisation where it is not or should not be satisfied that the best interests assessment is a thorough piece of work that adequately analyses the four necessary conditions.
… where a supervisory body knows or ought to know that a best interests assessment is inadequate, it is not obliged to follow the recommendation. On the contrary it is obliged to take all necessary steps to remedy the inadequacy, and if necessary bring the deprivation of liberty to an end, including by conducting a review under Part 8 or by applying to the court.
… A standard authorisation has the same effect as a court order and there is no reason why it should receive lesser scrutiny.”
In relation to Article 5(4) – the right to speedy review of any deprivation of liberty – the court found that there had been an unwarranted violation of Steven’s rights:
“Lastly, I have already indicated that the protracted delay in applying to court in this case was highly unfortunate. There are repeated references, particularly by the service manager, to the burden being on Mr Neary to take the matter to court if he wished to challenge what was happening. That approach cannot be right. I have already referred to the decision in Re S, which rightly observes that the practical and evidential burden is on a local authority to demonstrate that its arrangements are better than those that can be achieved within the family. It will discharge the practical burden by ensuring that there is a proper forum for decision. It will not do so by allowing the situation it has brought about to continue by default. Nor is it an answer to say, as Hillingdon has done, that Mr Neary could always have gone to court himself, and that it had told him so. It was Steven’s rights, and not those of his father, that were in issue. Moreover, local authorities have the advantage over individuals both in terms of experience and, even nowadays, depth of pocket. The fact that an individual does not bring a matter to court does not relieve the local authority of the obligation to act, it redoubles it.
Taking these three matters together – no IMCA, no effective review, and no timely issue of proceedings – I agree with the Official Solicitor and with the team manager that had these steps being taken in a timely way, it is more likely than not that Steven would have returned home very much earlier than he did.”
“… there is an obligation on the State to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court. The nature of the obligation will depend upon the circumstances, which may not readily be transferable from one context to another.”
Comment: This decision answers a number of crucial questions about the operation of DOLS and the correlation between a breach of Schedule A1 and a breach of Articles 5 and 8 ECHR.
It highlights the importance of a comprehensive best interests assessment (whether or not within the context of a DOLS authorisation) and the need for public bodies to have regard to all relevant information when forming a view as to best interests. It repeats the court’s often-expressed view that removing an incapacitated adult from his or her family home is a major step and not one that can be justified on the basis of generalised assumptions about, for example, the benefits of independent living or the provision of care by skilled professionals rather than family members. The judge said that ‘The burden is always on the State to show that an incapacitated person’s welfare cannot be sustained by living with and being looked after by his or her family, with or without outside support.’ There is an interesting question whether this approach is in conflict with some aspects of current social care (including DH guidance) which appears, to the authors, to take a different starting point; namely that learning disabled and autistic adults should be assisted to live independently, as their non-disabled counterparts generally do.
The case will cast a certain amount of fear into the hearts of local authorities who, in the authors’ experience, commonly adopt without further consideration the recommendations of Best Interest Assessors in their decision to grant a standard authorisation. This practice illustrates the problems caused by the dual role played by local authorities under DOLS, of both independent assessor, and decision-maker, and reflects the inherent tension caused by appointing the body ultimately responsible for a deprivation of liberty as the body able to authorise it. Following this judgment, local authorities will have to do better at separating their assessment functions from their decision-making functions, and can no longer assume that reliance on the views of a Best Interest Assessor is sufficient. This is likely to be particularly so where, for example, a relative or P himself seeks to criticise or have reviewed a DOLS authorisation, thereby putting the local authority on notice that the decision already reached may not be the right one.
Best Interests Assessors will also need to beware of the overuse of ‘cut and paste’, and the need to justify periods of detention that are proposed, as being lawful and proportionate, rather than for reasons of administrative practicality.
The judgment does not, in the view of the authors, settle the question whether a breach of Schedule A1 necessarily gives rise to a breach of Article 5. The court found that since the best interests decisions about Steven were made with ‘insufficient scrutiny of inadequate information’, the resulting DOLS authorisations were not lawful, even though the processes envisaged by Schedule A1 had been followed. It is not clear whether the court found that there had been a breach of Article 5 on procedural grounds (such as a failure to complete a lawful best interests assessment), or on substantive grounds (that since the deprivation of Steven’s liberty was not in fact in his best interests and/or proportionate, it was therefore unlawful). The distinction was probably irrelevant in this case, as Hillingdon appeared to have violated both aspects, but in other cases, where there is a real issue as to whether the deprivation of liberty is in P’s best interests (for example because there is no alternative placement available, even though the existing placement is far from ideal), it could be very important. The judgment at the very least suggests that even where the best interests issue is not clear cut, there may nevertheless be violations of Article 5 if the processes followed, including information-gathering, are deficient.