Judge: HHJ Buckingham
Citation:  EWCOP 36
A couple had been married for 58 years, and were devoted to each other. The wife developed dementia. She initially attended a day care centre whilst living at home, but in November 2016 the decision was then taken by the local authority that she should remain at a care home, in part because of risks perceived by professionals arising from the husband’s expressed view on euthanasia. She was made the subject of a DOLS authorisation at that point. Her family objected to her continuing placement at the current placement and wished for her to return home. The woman was reported to have frequently expressed a wish to be with her husband. Attempts to mediate with the family proved abortive, and “the process of seeking to resolve issues surrounding [the woman’s] residence and contact, without recourse to the court, [was] elongated.” In May 2017, the local authority imposed a restriction on the husband’s ability to take his wife away from the placement unaccompanied. No application was made by the local authority either in relation to restricting contact or in relation to the question of where the woman should live; but ultimately the woman’s RPR made a s.21A application. Notwithstanding the absence of authority to restrict contact, the husband complied with the restriction imposed save for a day when there had been a bereavement at the care home and a considerable degree of upset in the home in consequence from which the husband had decided to remove his wife temporarily. The care home alerted the police and it appears that armed police were called in consequence.
In the s.21A proceedings, the local authority applied orally for orders restricting contact between the woman and her husband, so as to prevent him taking her out of the care home where she resided unless accompanied by a member of staff or relative. The basis for this application were the local authority’s concerns about the husband’s expressed views about euthanasia. The court directed that the local authority file a schedule of findings and supporting evidence relied upon to justify the imposition of the restriction sought.
HHJ Buckingham then undertook a detailed examination of the comments made by the husband, noting that he was a man who held and expressed forthright views about matters, restating his support for euthanasia at a best interests meeting in April 2018 and in court. However,
It was, as HHJ Buckingham put it:
regrettable that tensions and dispute between professionals and the family have been building up since at least January 2017 over the care and contact arrangements for SR. When it became clear that the family did not support the care or contact arrangements, the matter should have been referred to the court.
Although overlain with the particularly emotive issue of views about euthanasia, this case is in many ways sadly not unusual. It highlights, or should highlight, the thinness of the legal ice afforded to public bodies seeking to restrict contact without the authority of the court given the clear interference with the Article 8 rights of the woman (and her husband). Although “Article 8 of the Convention contains no explicit procedural requirements, the decision-making process involved in measures of interference must be fair and such as to ensure due respect of the interests safeguarded by Article 8,” very serious limitations of private and family life calling for strict scrutiny (see, amongst others, AN v Lithuania  ECHR 462). The Supreme Court in NHS Trust v Y  UKSC 46considered that s.5 MCA 2005 could in principle provide a sufficiently robust basis upon which decisions in relation to life-sustaining treatment could be constructed without the need for automatic recourse to the court, where there is agreement as to what is in the best interests of the person. This suggests that, if restriction on contact could be levered into the definition of an act in connection with care and treatment, s.5 MCA 2005 could, in principle, provide a basis upon which contact could be restricted without incurring liability. However, the quid pro quo must be that “[i]f, at the end of the […] process, it is apparent that the way forward is finely balanced, or there is a difference of [professional] opinion, or a lack of agreement to a proposed course of action from those with an interest in the [person’s] welfare, a court application can and should be made” (Lady Black in An NHS Trust v Y).
 As had been flagged by the Law Commission in its Mental Capacity and Deprivation of Liberty report in its proposals in relation to s.5 MCA. The Government’s approach to these issues is explained here.