Judge: District Judge Glentworth
Citation:  EWCOP 64
MAG was a young man born on 2 November 1980 and was 34 years old. As a result of perinatal trauma he suffered from autism, ataxic cerebral palsy, hearing and visual impairments and a learning disability. There was no dispute that it MAG lacked capacity to make the decisions regarding his residence and care. North Yorkshire County Council (NYCC) sought an order that it was in his best interest for MAG to be deprived of his liberty and reside in his current placement.
MAG had lived at his current placement since 2006. The property was a one bedroomed ground floor flat. He could not stand independently and the flat was too small to accommodate the use of his wheelchair. At home he mobilised by pulling himself along the floor and up on to chairs and his bed which had resulted in painful bursitis in both knees and calluses to his knees and ankles. It was agree that MAG was deprived of his liberty for the purposes of Article 5(1).
NYCC commenced proceedings in September 2011. The case had been before the Court for four years, during which time the Official Solicitor had requested the local authority to identify alternative accommodation options. NYCC sought final declarations on the basis that there were no immediate alternative residential options and it was in MAG’s best interests to continue to be deprived of his liberty in his current placement. Relying on the recent Court of Appeal case of Re MN  EWCA Civ 411 (reported in our May 2015 newsletter), the local authority argued that the Court had no jurisdiction to require it to find another property which would not ordinarily be available to MAG. The accommodation and his care package had the effect of depriving MAG of his liberty in that he was not permitted to leave unaccompanied and was under continuous supervision and control.
The Court was not willing to accept the local authority’s argument. In particular, the Court found on the evidence that NYCC had not been willing to find alternative accommodation unless the Court decided that it was in MAG’s best interests to move. The judge made the following criticisms of the local authority:
“36. I accept that there was culpable delay on the part of NYCC in finding a less restrictive property for the following reasons:
Ultimately, the Court refused to grant the order authorising a deprivation of MAG’s liberty in his current placement. In relation to Re MN, the Court agreed with the Official Solicitor that the decision could be distinguished when the issue is the right to liberty under Article 5. The Court was clearly unwilling to endorse a care regime which risked breaching MAG’s right to liberty where it was not satisfied that NYCC had taken all the steps necessary to ensure that there was no breach of its obligations.
This is a forthright decision from a District Judge who was clearly unwilling to accept at face value what she was being told by the local authority. The case is under appeal, and we will provide an update as and when we can.
It is, however, perhaps interesting that it was felt necessary to distinguish Re MN. On a proper analysis, we suggest that the two decisions sit easily together (and, indeed, sit together with that of Charles J in Re NRA, decided subsequently). The Court of Protection must be careful not to order or to be seen to order a public authority to provide alternative care arrangements (unless the judge is also wearing an Administrative Court hat). However, there is nothing to prevent a judge (1) probing in detail whether the arrangements put to it for endorsement actually do represent the least restrictive alternative; and (2) declining to ‘collude’ in a breach of Convention rights where not properly satisfied that they do. District Judge Glentworth did, essentially, exactly the same as did Munby J (as he then was) in A Local Authority X v MM  EWHC 2003 (Fam), in which the court was faced with a situation in which the consequence of the arrangements made by the local authority for MM amounted (the court considered) to a breach of her Article 8 rights. Munby J held that:
“In the first instance it is for the local authority to prepare a care plan spelling out in appropriate detail and precision what it proposes to do in order to modify the current arrangements in such a way as to avoid a breach of Article 8; specifically, if it wishes to pursue its plan for MM to remain at her current placement, what it proposes to do in order to facilitate her sexual relationship with KM. The care plan can then be considered by the court. The court cannot be compelled to accept the local authority’s plan, any more than it is obliged to accept the plan propounded by a local authority bringing care proceedings under Part IV of the Children Act 1989. On the contrary, the court is required to act in the best interests of the vulnerable adult and must not – is forbidden by section 6 of the Human Rights Act 1998 to – endorse a plan which in its view involves a breach of Article 8.”
Neil Allen represented MAG in this case on behalf of the Official Solicitor. Proceedings being ongoing, he has had no involvement with the writing of this report.