R (C) v A Local Authority & Others

C is an 18 year old boy who had been resident in a school for some years. He has autism and severe learning disability with extremely challenging behaviour. His behaviour was managed in large part by the use of a padded blue room in which he was secluded when he exhibited challenging behaviour. He had developed a number of behaviours that were particularly prevalent when in the 'blue room' including defecating, smearing and eating his own urine and faeces, and stripping naked. He was prevented from leaving the blue room for reasons of aggression and nakedness. The blue room was also used as a room to which C had been encouraged to withdraw as a safe place.

It was common ground that the DOLS regime under the MCA does not apply to residential schools. It was also common ground that when C was secluded in the blue room he had been deprived of his liberty. The court gave detailed consideration to these matters. The judgment can be summarised as follows:

(i). Since at least C's 16th birthday the approach of the MCA 2005 was more relevant to his situation than the Children Act 1989, but this approach was not applied to C. (ii). As the DOLS code of practice and schedule A1 of the MCA did not apply to C, an application should have been made to the COP before any deprivation of liberty occurred. In this case the application should have been made on C's 16th birthday. (iii). Since at least C's 16th birthday there has been no lawful authority to deprive C of his liberty. (iv). The Court was unable to make even interim declarations as to whether the conditions in which C was being deprived of his liberty were in his best interests until it had heard oral evidence from a number of those caring for C and from instructed experts. (v). The application of good practice in the COP in any determination of best interests will of necessity have regard to the same material as that contained in the DOLS Code of Practice because inter alia the DOLS Code of Practice is overtly informed by decisions of this Court and the ECHR. (vi). The Mental Health Code of Practice 1983 reflects best practice in relation to seclusion. It applies to the care, treatment, and in particular seclusion and restraint of C, who is a severely learning disabled child who is resident in a special school and whose condition prima facie falls within the definition of mental disorder in the MHA. (vii). While the issue of whether the MHA Code of Practice would apply to children and young persons in children's homes but whose learning disability does not fall within the definition of a mental disorder was not argued, but the Judge held that it should be applied as a matter of good practice.

The court gave detailed consideration to the situations in which secluding C was lawful and in his best interests. The Court's view was that it could be used as follows:

(i). When used to control aggressive behaviour, but only so long as was necessary and proportionate and it had to be the least restrictive option. It had to be exercised in accordance with an intervention and prevention plan designed to safeguard C's psychological and physical health. That plan, together with guidance for use of the blue room, had to be written up into a protocol forming C's care plan and all staff had to be trained in a manner that was specific to C. (ii). It was not lawful to seclude C used solely for nakedness, such seclusion is little more than an amateur attempt at behaviour modification which is not proportionate to any risk or the least restrictive option. Staff must be aware of and be trained in strategies to allow C to be naked. (iii). It was not lawful to seclude C as a punishment, as part of behaviour management plan. (iv). It was not lawful to seclude C solely for reason of him self-harming. It could be used where C's self-harm was coupled with aggressive behaviour which of itself necessitated the use of seclusion.

Comment: This judgment will have wide repercussions for those who care for young people with challenging behaviour for two reasons:

First it makes it clear that where a young person of 16 is to be deprived of their liberty within a children's home or residential school, an application for lawful authority must be made prior to the deprivation of liberty taking place. While the DOLS code of practice does not strictly apply to deprivations outside schedule A1, the guidance will be applied by the Courts in such situations.

Secondly it makes it clear that where the young person has a mental disorder within the meaning of the MHA 1983 then the MHA Code of Practice applies to their seclusion. Even where a young person does not have a mental disorder within the meaning of the MHA as a matter of good practice the MHA Code of Practice should be applied.

The procedure adopted by the Court for the taking of expert evidence is also worthy of note. The Court heard oral evidence from 9 expert witnesses. Seven of them were sworn in together and taken through a list of issues, giving their views and commenting on the views of others as each issue was addressed in turn. In this way the Court was able to hear evidence from 8 of the 9 witnesses in one afternoon.