Mental Capacity Case

J Council v GU & Ors

Mostyn J

Summary: This judgment considers the right to respect for private life in the context of a deprivation of liberty. Although the final order in the case was agreed between the parties, the court was invited to make an unambiguous declaration that the relevant restrictions were compliant with Article 8 ECHR.

"George" suffered from a number of mental disorders, including paedophilia. One of the ways this was manifested was through compulsive letter writing about his fantasies of sex with children. Some of these letters had been left in public places. All parties agreed that it was in George's best interests to remain living in a privately-owned care home and to be subjected to restrictions including strip-searching and monitoring of his correspondence and telephone conversations. There was no dispute that he was deprived of his liberty.

Mostyn J held that the restrictions amounted to an interference with George's private life. He went on to consider the requirements of Article 8 (at paragraphs 11-12) and, in particular, the need for the interference to have a basis in national law. Mostyn J lamented the absence of detailed procedures and safeguards for persons detained pursuant to the MCA, in contrast to the primary and secondary legislation that governs restrictions on those detained under the Mental Health Act 1983 (paragraphs 13-14).

The Official Solicitor raised concerns as to whether the restrictions in this case were compliant with Article 8 on the basis that they were insufficiently prescriptive, carried insufficient safeguards, and lacked validation and oversight by a public body. To address these concerns the parties agreed a 52-page policy document that included specific policies governing searches of George and his room, as well as monitoring of his telephone calls and correspondence.

Additional layers of scrutiny were also agreed between the parties, including provision for the NHS Trust to periodically review each separate policy and receive monthly reports, and for the CQC to seek expert advice as to the care of George and specifically case track George during the course of any compliance review.

The Official Solicitor submitted that the agreed policies and procedures put beyond doubt any question of compliance with Article 8. The care home, which was said to have agreed the policies out of benign concern for George, argued that the policies were not in fact necessary to legitimise the restrictions. This was not accepted by Mostyn J, who held (at paragraphs 20-21):

"... not every case where there is some interference with Art 8 rights in the context of a deprivation of liberty authorised under the 2005 Act needs to have in place detailed policies with oversight by a public authority. Sometimes, particularly where the issue is one-off (such as authorising an operation), an order from the Court of Protection will suffice and will provide a sufficient basis in law. But where there is going to be a long-term restrictive regime accompanied by invasive monitoring of the kind with which I am concerned, it seems to me that policies overseen by the applicable NHS Trust and the CQC akin to those which have been agreed here are likely to be necessary if serious doubts as to Article 8 compliance are to be avoided.

21. Of course all this debate would become empty were Parliament or the Executive or the CQC to promulgate rules or guidance to cover the situation which I have here. It is hard to understand why there are detailed statutory provisions relating to personal searches and telephone and correspondence monitoring for high security mental hospitals but none at all for private care homes."

On a separate note, Mostyn J described the standard practice of referring to parties by their initials as confusing and dehumanising. In light of the general rule that proceedings are to be heard in private, he opined that all court documents should bear the parties' actual names and that anonymised names should only be used when the court's judgment is published.

Comment: This is, in some ways, an unexpected development in the case-law on restrictions associated with deprivation of liberty. Whilst the relatively intrusive restrictions in this case go well beyond those in many other cases, it is likely that an interference with the right to respect for private life may be found in many (if not all) cases where an individual is deprived of their liberty.

The wide implications of this judgment mean that it was perhaps unfortunate that Mostyn J was not required to adjudicate (at least at this stage) upon the extent to which Schedule A1 provides authorisation for restrictions upon contact/private life ancillary to the deprivation of liberty to which it is addressed. The question of the extent to which standard authorisations can serve as a proper basis to restrict contact arrangements is a vexed one:

1. if restrictions upon private life (including contact arrangements) are seen as a factor going to establish whether a person is deprived of their liberty, then it does not strain logic or principle to suggest that they can then be authorised by virtue of a standard authorisation. If this is so, then the grant of a standard authorisation together with sufficiently detailed requirements covering contract restrictions would have served to meet the concerns raised by the Official Solicitor in the case before Mostyn J, and there would have been no need for the elaborate overlay of 'ownership' requirements endorsed by the Court;

2. if, however, the question of the additional restrictions upon private life upon those deprived of their liberty are to be viewed separately to the question of whether they are deprived of their liberty (an approach which finds support not just in the cases cited by Mostyn J but also in the decision of the Strasbourg Court in Munjaz v United Kingdom (Application No. 2913/06, decision of 17.7.12)), then as a matter of logic, it becomes difficult to say that a standard authorisation can serve as sufficient authority to impose restrictions upon those 'surviving' Article 8 rights. These must find a basis in accordance with the law from some other source.

It is perhaps not going to be possible to untangle the complications set out immediately above until the Supreme Court has decided precisely how one is to approach the definition of 'deprivation of liberty,' but the decision in GU adds a further layer of complexity.

In light of the implications of the judgment, it is also perhaps unfortunate that Mostyn J was not required to determine precisely what Article 8 demanded in the circumstances that arose in the case before him. This is particularly so because the logic of his conclusion is not confined to the position where a person is deprived of their liberty, because any interference with Article 8 rights can only be justified if it satisfies the criteria contained within Article 8(2). There are likely to be many who are subject to such interferences by way of restrictions upon contact who are not subject to a deprivation of liberty (especially given its currently circumscribed definition). Is a policy 'owned' by a public authority required in each such case? And what is required before it can have the requisite qualities of accessibility, foreseeability and predictability?

Finally, it is perhaps unfortunate that there is a degree of ambiguity in the judgment as to the circumstances under which a judicial imprimatur is necessary before an ongoing interference with Article 8 in a care home (or hospital) can be said to be in accordance with the law. The tenor of the judgment was undoubtedly to the effect that the primary consideration was the 'ownership' by a public authority of a policy governing the interference. However, the material policy in the case before Mostyn J had been placed before the Court, and would be reviewed again by the Court at least once more (and possibly on an ongoing annual basis). Mostyn J did not, in terms, identify whether - absent this review - he would have been satisfied that doubts as to Article 8 compliance would not have arisen.

As Mostyn J identified, none of the complexities in the case before him would have arisen had rules or guidance been promulgated from a suitably authoritative source governing monitoring and searching in private care homes. We suspect that the prospect of such rules/guidance being forthcoming in the near future is unfortunately remote, as welcome as they would be to provide certainty for both providers and individuals.