Alex RKRe HC [2024] EWCOP 24 is notable for the approach taken by Victoria Butler-Cole KC (sitting as a Tier 3 Judge) to the question of deprivation of liberty.
The case concerned the residence and care arrangements for a 27 year old woman, HC, who had had a number of admissions to hospital (including s.3 Mental Health Act 1983) to seek to treat her anorexia. Proceedings had been ongoing before the Court of Protection for some time, although they had in effect been paused for a period of time whilst she was admitted to hospital under the MHA 1983. She had then been discharged from hospital to a placement under a plan she had been in agreement with, and in circumstances where she had apparently assessed as having capacity to decide on her discharge destination. The court had not been informed of any of these matters.
Her current placement, however, had terminated her placement, and the local authority and ICB responsible for meeting her care needs under s.117 MHA 1983 sought an urgent determination of whether it was in her best interests to be moved to a new placement immediately, using physical restraint if necessary. Ms Butler-Cole KC was critical of the lateness of the application, “an application which could and should have been made in early March 2024 when the local authority social worker assessed HC as lacking capacity to make decisions about where to live and receive care, and RC [HC’s father] expressed his belief that HC required a further specialist placement, contrary to the advice of professionals” (paragraph 12).
Ms Butler-Cole KC considered there was reason to believe that HC lacked capacity to decide where to live and receive care such that s.48(a) MCA 2005 was satisfied, although she highlighted “defects and omissions” in the evidence before the court, and even though it was “entirely possible” that HC would in due course be found to have capacity for purposes of s.15 MCA 2005.
As to best interests, the options before the court by the end of the hearing were: (1) a forced move to a new placement; or (2) a temporary return to RC’s house if HC was not willing to move to the new placement at the end of the last day she could stay at the current placement.
Ms Butler-Cole KC was troubled as to the prospect of HC returning to RC’s home, even temporarily, given the complex history of her dependence upon him and (when with him) non-engagement with specialist eating disorder services in the area of his home. She was, however, even more troubled by a forced move, in circumstances (1) where a move against the will of her father was likely to cause her significant distress; (2) the prospect of her settling into the new placement was remote if she felt she had been forced to go there; and:
The use of physical restraint to move HC, even on the basis that is a last resort, is not justified. It is neither necessary nor proportionate at this juncture, and I have significant reservations about authorising its use in circumstances where the orders I make are on the basis of s.48 MCA 2005 and there is a dispute about HC’s capacity to make her own decisions. HC already suffers from anxiety and it seems extremely likely that the use of physical restraint would be a further source of trauma for her. Her litigation friend, the Official Solicitor, does not support the use of force (paragraph 25(iii).
The court therefore made orders requiring the provision of additional evidence from the statutory bodies and (at paragraph 28), Ms Butler-Cole KC identified that she:
will consent on HC’s behalf to a move to D House if she is willing to move there. If she is not, then the court consents on her behalf in the interim to her moving home to live with RC, and to receiving the proposed package of domiciliary care. In that event, there will need to be either agreement from RC or orders ensuring that professionals can have access to HC, and can see and speak to her directly and without RC being present.
The question then arose as to the potential for deprivation of liberty at the new placement, D House:
29. Mr O’Brien submitted that in the event HC moves willingly to D House, an urgent authorisation should be put in place and a standard authorisation implemented to authorise her deprivation of liberty, as D House is a locked facility. I raised a concern as to the appropriateness of this approach given that urgent authorisations are not designed to be used when a move is planned in advance, and that the test for capacity in respect of a standard authorisation is equivalent to that applied in the making of a s.15 declaration, which is not a declaration that I have made, or been asked to consider making. Furthermore, given the complexity of the issue of HC’s capacity to make relevant decisions, there is a risk that an assessment of capacity by a new professional for the purposes of a standard authorisation might result in a conclusion that HC has the necessary capacity, which would then result in an urgent court hearing being required. On further reflection, Mr O’Brien submitted that the court should authorise HC’s deprivation of liberty at D House instead.
30. I consider it inconsistent with my determination that it is in HC’s best interests to move to D House only if she agrees to go there, to order that once at D House, if she changes her mind, she should be prevented from leaving. If the only reason for not imposing a forced move was the use of restraint during the journey, the two propositions would sit together more easily. But that was not the only reason – there are serious concerns about the impact on HC’s mental health and self-harming behaviour of imposing a decision on her to which she objects.
31. However, since HC’s living arrangements at D House would be an objective deprivation of her liberty, and since I have found that there is reason to believe she lacks capacity to make decisions about her care and residence, substitute consent to her objective deprivation of liberty is required while she resides there willingly.
32. I will therefore authorise HC’s deprivation of liberty at D House in the event she has agreed to move there, but that authorisation will end if HC changes her mind about staying there and says that she wishes to return to the family home. The case must be returned to court for further directions immediately if that happens, or if it is intimated. In any event, the case will be listed for review and further directions within a short timescale.
Comment
Paragraph 31 of the judgment represents arguably just as serious a challenge (albeit a shorter and more subtly framed challenge) to the judgment in Cheshire West as that of Lieven J in Peterborough City Council v Mother (Re SM) [2024] EWHC 493 (Fam. Put shortly: what is the point of giving substitute consent to something to which HC (albeit incapacitously) is agreeing to willingly? And if she is willingly agreeing to it herself, why should it be viewed as deprivation of liberty – and should the law not listen to her?
