Judge: HHJ Burrows
Citation:  EWCOP 62
The case related to a young man, ‘Michael’ or ‘MM.’ Michael had diagnoses of mild learning disabilities, dissocial personality disorder and had ongoing problems with using illicit substances. He regularly engaged in challenging or violent behaviour, which had led to the breakdown of several care placements for him. He had also been detained under the Mental Health Act following wounds to his neck, stating he was going to take his own life.
Michael had been living in a residential care placement where he was subject to a 10pm curfew and prohibited from using drugs or alcohol on-site. Subject to a standard authorisation, by March 2021 Michael was regularly absenting himself, often not returning for several days and often found by the police who did not consider that they had powers to return him to the placement by force.
Michael objected to the restrictions, and was regularly threatening staff and absconding. The local authority proposed a care plan with a greater level of restrictions at a new placement (ultimately, the new placement withdrew its offer to provide care for him due to his perceived level of risk to other residents). Michael’s RPR brought proceedings under s.21A.
The capacity assessment concluded that Michael had a mild learning disability, but his mental state was ‘complicated by the long history of polysubstance misuse’ (para 26). It found that he presented consistently with having Dissocial Personality Disorder, and a ‘a history of substance misuse which is consistent with a Dependency Syndrome’ (para 27). Dr O’Donovan concluded that Michael was not able to make decisions as to his residence and care, his property and affairs, and the consumption of illicit drugs and alcohol. Declarations were made that he lacked capacity to manage his property and finances and “make decisions to use and consume illicit substances” (para 29). She did not reach a conclusion regarding his capacity on contact or use of the internet and social media due to his non-engagement. However, as no orders were sought for these matters, the issue was not pursued further.
The court noted the independent social worker found that Michael was ‘troubled by and resentful’ of attempts to protect him, and as he saw it, ‘control his life.’ Michael did not agree that he was vulnerable, despite evidence that he likely had been financially exploited by others. The ISW concluded Michael was highly likely to object to living in a more restricted environment. A move to a locked facility would likely be unsuccessful, and potentially lead to his arrest or detention under the Mental Health Act. There would be some benefits in the severance of ‘antisocial links’ that Michael had developed, but that severance would itself harm Michael’s autonomy. The court considered that:
“It is unlikely that any of the available options I could present to the court are likely to keep [MM] “safe”. [MM] has both responded poorly to restrictions placed upon his liberty and benefitted from the security provided by robust wraparound care. The nature of his needs indicate that he is likely to, at times, attach undue weight to options which immediately meet his needs, but may place himself at risk. However, whilst he opposes the current restrictions, he appears to find them tolerable at present and has evidenced greater ability to comply with these, resulting in a more settled mental state and positive engagement with his staff team at [Placement 1].
……[MM] has a longstanding pattern of struggling to assess risks in the context of the choices he makes. Whilst I note his poor engagement with health professionals previously involved in his care, he did engage well with me during my assessment and note that he has had episodic periods of engagement with various professionals, including SALT. I note that he will not discuss topics he is uncomfortable with, and he will refuse to engage with others when he identifies their attitudes or approaches as paternalistic. However, in interview, he accepted challenge and was able to discuss these proceedings, including the restrictions placed upon him.”
The ISW recommended that Michael remain at his current placement with access to 24-hour support and a curfew, but no effective deprivation of his liberty. The proceedings ultimately concluded by consent. The standard authorisation was necessary and proportionate to secure his safety, insofar as it could be secured:
As the judge said, this case has “no legal novelty” and is a “fairly common sort of case to come before the Court of Protection”. As such, it illustrates the common challenge in this field of balancing empowerment and safety. It is noteworthy that the police were sceptical about using MCA ss.5-6 to return him to his placement (for which LPS could provide more legal reassurance).
We note that Michael was declared to lack capacity “to make decisions to use and consume illicit substances”. This is in the context of a potential high-risk offender, on probation for stealing cars, whose convictions included possession of cannabis. Like many other cases, it does raise the more general question as to the impact incapacity declarations can/ought to have on P’s future criminal conduct. If, for example, Michael was arrested for cannabis possession (a necessary precursor to using or consuming), how would/should the prosecuting authorities approach the matter, given this declaration of incapacity?
Using/consuming is not a criminal offence, but possession is. One can possess without using/consuming, but not vice versa. It seems likely therefore that it would not prevent a prosecution for possession, and is more likely to be relevant to mitigation. In those circumstances, what is this declaration intended to achieve? A best interests decision as to whether P should use and consume illicit substances seems unlikely. So perhaps, like alcohol cases, the issue is more to do with the reasonably foreseeable consequences of using/consuming illicit substances on other matters, such as residence and care/support. For example, in London Borough of Tower Hamlets v PB  EWCOP 34, Hayden J evaluated “whether PB understands the impact on his residence and care arrangements of his continuing to drink, potentially to excess”. Perhaps by focusing on the care/treatment for which a defence under MCA s.5 is required, this will help to identify the “matter” in respect of which a declaration is sought.