In DY v A City Council & Anor  EWCOP 51, Judd J has tackled head on the perennially difficult question of whether and how DoLS can provide for public protection. The case concerned DY, a young man in his 20s, who had previously been detained under the MHA 1983. In 2017 he had pleaded guilty to two offences of sexual assault of a girl aged under 13, and received a 26 month Youth Rehabilitation Order. He was placed on the sex offender’s Register for 5 years with a concurrent Sexual Harm Prevention Order with a residence requirement and curfew. He was prohibited from having contact with children under 16 save as was inadvertent and not reasonably avoidable in the course of daily life. He was referred to MAPPA and had been assessed as a category 1 offender requiring level 2 management. He was still considered a high risk to children and known adults. To his mother he was considered to pose a risk of violence and sexual assault. To children he was considered to pose a risk of sexual assault. DY was diagnosed with Autistic Spectrum Disorder in 2011, and also with Generalised Anxiety Disorder and Paedophilia. He moved to a care home in 2019, assessed as lacking capacity to make decisions about accommodation and care. He was subject to a DoLS authorisation, always accompanied by male staff when he went into the community, was checked four times a night due to his sexualised behaviour and self harm, and was not allowed to enter bedrooms other than his own in his placement.
DY challenged the DoLS authorisation both on the basis that he did not lack capacity for purposes of Schedule A1, and also that the best interests requirement was not met.
Judd J considered the best interests challenge first, reminding herself that the requirement in paragraph 16 of Schedule A1 is (in our words) “best interests plus” – i.e. that is in the person’s best interests, and necessary and proportionate to the risk of harm they would suffer. At paragraph 20, and in response to DY’s challenge that the purpose of the DoLS authorisation was public protection, she made clear that:
Having heard and read the evidence and submissions on this point, I have come to the conclusion that the primary purpose of the care plan is to avoid harm to DY. There is no doubt that he poses a risk to the public, but it is also clear that it would be very harmful to DY himself were he to commit further offences. DY is a young person who is vulnerable and has engaged in self harming behaviour (albeit not recently). The social worker stated in her evidence that when DY becomes stressed and anxious that this leads to him ruminating and in turn puts him at risk of self harm. If he were to reoffend he would be very distressed, and engage in self loathing. There would also be the risk of retribution from the public. I agree with Lieven J in Birmingham City Council v SR; Lancashire County Council v JTA  EWCOP 28 that it is a false dichotomy to conclude that the protection of P cannot also include protecting him from harming members of the public. As in that case, it is strongly in DY’s best interests not to commit further offences, or place himself at risk of further criminal sanctions. In my judgment this falls squarely within the meaning of the qualifying requirement in paragraph 16 schedule A1, ‘to prevent harm to the relevant person’. That this harm would come about by his harming others does not detract from this.
However, she found that the capacity challenge succeeded, basing herself on the “clear, cogent and firm” evidence of the expert, Dr Ince:
34: When interviewed by Dr. Ince DY was honest about the risks he posed, and was able to express his fear of what would happen to him if he committed another offence. I agree with his conclusions that DY was not merely repeating what he had been told or saying what the interviewer wished to hear. I do not accept the respondents’ submissions that Dr. Ince asked himself the wrong questions or relied too heavily on DY being able to describe the risk factors rather than being able to show what benefit his care and support offers him. It is very difficult for DY to demonstrate the benefit to him in circumstances where he has not experienced being without it (a situation he himself recognises). I reject the submission that Dr. Ince did not appear to consider the impact of the interplay between DY’s paedophilic or paraphilic disorder, his anxiety and his autism, for he discussed and explained this at length in his evidence. DY has an impairment/disturbance of the mind or brain by reason of his ASD and accompanying anxiety, but Dr Ince does not accept the additional diagnosis of paraphilia is relevant in this context or that the fact that DY can make impulsive decisions regarding further offending is due to lack of capacity.
Judd J made clear that she could:
- […] entirely appreciate why the respondents in this case are so concerned, because there is a high risk that DY will reoffend if he is given the opportunity to do so. If he is allowed to make decisions for himself he could go out alone, and in doing so he could put others and himself at risk by acting impulsively and committing a sexual assault. Those responsible for his care are undoubtedly very worried about the effect upon him (and of course others too) were he to do this. Anyone responsible would be concerned about this, as I am myself. But Dr. Ince is right that any further offending is a matter for the Criminal Justice System. The current SHPO is an example of such risk management. The truth is that most sexual offenders and risky adults have capacity, and, like DY are not to be managed by a Deprivation of Liberty within the provisions of the Mental Capacity Act 2005.
Putting aside the capacity challenge in this case, which was fact-specific (but illustrates the power of a good expert report), this case might be thought to illustrate the sometimes Orwellian mental gymnastics that are now required to hold two competing thoughts about best interests in one head. In the majority of cases, following Aintree v James, we are told to seek to put ourselves in the shoes of P, and to seek to place a very considerable weight upon their wishes and feelings. In cases such as the present, however, we are told to adopt a very different construction to enable public protection to be levered into the constraints of Schedule A1 ((or the implicit constraints upon the Court of Protection, which is only statutorily required to consider the standard best interests test, rather than “best interests plus,” and could compatibly with Article 5 ECHR find that deprivation of liberty was necessary and proportionate to the risk of harm to others).
Some may think, as did the Law Commission did in its Mental Capacity and Deprivation of Liberty project, that requiring consideration of best interests means that assessors have to reach the “somewhat artificial[…]” conclusion that “the person’s own interests include not harming someone else and thereby, for instance, themselves becoming subject to some form of ‘harm,’ such as civil or criminal proceedings” (Final Report, para 9.29). Responding to this, the Law Commission’s draft Bill included an approach based upon the likelihood of either harm to the person or to others.
The Bill introduced to Parliament adopted the Law Commission’s approach in that it did not include an express best interests element; it did not expressly refer to the potential for deprivation of liberty to the authorised on the basis of risk of harm to others. Howeverm its provisions were drafted broadly enough to enable this to take place, as paragraph 16 of Sch.AA1 simply provided that arrangements had to be necessary and proportionate. This paragraph was the subject of considerable debate and criticism during the passage of the Bill and at Report Stage in the House of Lords, Baroness Barker tabled an amendment specifically tying necessity to prevent harm to the person, so as “to make it clear that it is harm to the person, and that the proportionality relates to the potential harm to that person if they are not deprived of their liberty” Hansard (House of Lords), 21 November 2018, Vol.794 (Col.284). The Government resisted the amendment but was defeated in a vote (202-188). It did not seek to reverse this position subsequently.
In light of the fact that the position was expressly debated in Parliament, it is therefore even clearer than was the case under DoLS that LPS cannot be used in the situation where the primary purpose is to protect others from the risk of harm caused by the person. This means that the mental gymnastics – or Orwellian – approach identified in DY will even more necessary: as per the draft Code of Practice published for consultation in March 2022:
16.72 If the person presents a risk of harm to others, it may still be possible to determine that the arrangements are necessary and proportionate to authorise the arrangements to prevent harm to the cared-for person. Such a determination would only ever be appropriate if, as a result of being a risk to others, the person is also themselves at risk of harm. For example, if a person in a care home is likely to harm another resident, who then may retaliate and harm the person, it may be necessary and proportionate to deprive the person of their liberty. However, the greater the risk to another person – as opposed to the person themselves – the greater the need to consider other alternative legal frameworks such as the MHA.
More broadly, and in line with the decision of the Supreme Court in JB, this decision reinforces the point that the MCA is undoubtedly not a straightforwardly empowering piece of legislation. Rather it is, or should be, seen as the framework for the proper determination of capacity and best interests in circumstances where there is legitimate reason to require such an exercise to be carried out.
And ‘fusion’ enthusiasts might want to reflect on whether the interpretation of ‘blowback’ harm in this line of caselaw does not lead to a position where, in fact, DoLS (and in future) the LPS provides the groundwork for fused mental health and capacity legislation. In other words, if the MHA was simply repealed, would not the MCA in fact provide a complete capacity-based framework for detention and treatment, taking into account both risk of harm to self, and risk of harm to others?