Court of Protection Judgement
The judgment in the Court of Protection case of Chester West and Chester Council v P  EWCA Civ 1257 has been handed down following a hearing at the Court of Appeal on 22nd September 2011.
On 4 April 2011 Mr Justice Baker heard argument in the case that saw him hand down judgment on 14 June 2011 that was reported at  EWHC 1330. The principal issue he identified was whether the circumstances in which a man who lacked capacity “P” amount to a deprivation of liberty. The Facts may be briefly stated. P is a 39 year old man born with cerebral palsy and Down’s Syndrome and has a history of cerebral vascular accidents. He presents with significant physical and learning disabilities. It was accepted by all parties that he lacks the mental capacity to make decisions as to his care and residence. P lived with his mother from his birth until 2009. For many years P attended a local day service on five days a week and in addition he received respite care for a total of eight weeks a year. P’s mother’s health deteriorated and in May 2009 P was taken into emergency respite care.
On 18 June 2009 a bests interests meeting unanimously decided that it would be in P’s best interests to reside in a care setting. On the following day the local authority filed an application in the Court of Protection under the Mental Capacity Act 2005. In due course interim declarations were made as to P’s capacity to litigate, to decide where he should live, with whom to have contact, and to make decisions about treatment and care. In addition it was lawful and in his best interests to reside at a local authority establishment, “Z House” and for contact to his mother to continue. In Z House, P has his own personalised room. He has access to two nearby adapted bathrooms. For the four residents who can be accommodated in the Z House the normal staffing ration during the day was two staff to four residents with P having close on-to-one supervision during the day. At night there is one “waking member of staff available at Z House.P needs a high level of care. His difficulty in mobilising means that he is at risk of falling; he requires prompting and assistance with all activities of daily living, including mobility, nutrition, eating and personal hygiene and continence.
Continence management has been a longstanding and a significant problem for P. He is doubly incontinent. P has a long history of pulling at his continence pads and as a result they become shredded and torn. Of greater concern is the fact that P has developed a habit of putting the pieces of padding in his mouth and on occasions this has included ingesting them even where they have faecal content. In addition to the obvious hygiene risk involved the added danger of choking.
The staff at Z House had developed a variety of techniques to tackle the problem, including monitoring this behaviour, structured toilet arrangements, positive reinforcement strategies, the use of specialist underwear, continence advice and verbal redirection techniques. On occasions staff had to resort to physical intervention; when P “stored” pieces of incontinence pad and faeces in the roof of his mouth. To remove this two members of staff had to use a “finger sweep”.
After detailed consideration of the authorities and the principles concerning deprivation of liberty Mr Justice Baker held that P’s liberty was deprived, albeit necessarily so and in his best interests. As such regular future court reviews were necessary
The Local Authority appealed to the Court of Appeal on the issue of the deprivation of liberty. After reviewing the relevant authorities, Lord Justice Munby said that what was at stake was whether P was entitled to the important procedural protections of article 5(4) ECHR and, in particular, to the regular ongoing reviews of his detention (if such it be) mandated by article 5 . The Court found that there was no deprivation of liberty.More importantly the Court of Appeal took the opportunity presented by the Appeal to identify the following factors which are likely to be of significance in the type of cases that come before the Court of Protection:-
1. The starting point is the “concrete situation” taking into account of a range of criteria such as type, duration, effects and manner of implementation of the measure in question [paras 32-33; 102 and 188]
2. Deprivation of liberty had to distinguished from restraint as restraint by itself could not amount to a deprivation of liberty [paras 23,102]
3. Account must be taken of the individual’s whole situation. The context is crucial. See Guzzardi-v-Italy  3 EHHE 333; Engel-v- Netherlands [1979-80] 1 EHRR 647 and Secretary of State for the Home Deaprtment –v- JJ  1 AC 385 [paras 32-35, 102]
4. A mere lack of capacity to consent to living arrangements could not of itself create a deprivation of liberty and the fact that a domestic setting could involve a deprivation of liberty did not mean that it often would; see Surrey CC-v- CA  EWHC 785[paras 27-28, 41-59, 102-103]
5. It was legitimate to have regard both to the objective “reason” for a placement and treatment and also the objective “purpose” Austin –v-Commissioner of Police for the Metropolis  UKHL 5;  1 AC 564 [paras 60-75,102]
6. Subjective motives or intentions had only limited relevance since an improper motive or intention might have the effect that what would otherwise not be a deprivation of liberty was in fact and for that very reason a deprivation, whilst a good motive or intention could not render innocuous what would otherwise be a deprivation of liberty [paras 74-77,102]
7. It was always relevant to evaluate and to assess the “relative normality” of the situation. [paras 74-77,102]
8. The assessment has to take into account the of the particular capabilities of the person concerned since what might be a deprivation of liberty for one person may not be for another [paras 92,97,102]
9. In most contexts the relevant comparator was the ordinary abled bodied adult but not in the Family Division or the Court of Protection, concerning children and adults with disabilities whose lives were dictated by their own cognitive and other limitations [paras 86,102] ; in such cases the comparator was an adult of similar age with the same capabilities as the adult concerned , affected by the same condition or suffering the same inherent mental and physical disabilities and limitations. In the case of a child the comparator was a child of the same age and development Surrey CC-v- CA  EWCA Civ 190 [paras 86-97,102]
10. The contrast is not to be made with the previous life led by P (nor indeed with some future life P might lead) but with the kind of lives that people like P would normally expect to lead.
In applying the above to the instant case the Court of Appeal said that a fundamental problem was that Mr Justice Baker “never compared P’s situation in Z House with the kind of life P would have been leading as someone with disabilities and difficulties in what for such a person would be a normal family setting”. The judge had “never grappled with the question whether the limitations and restrictions on P’s life at Z House are anything more than the inevitable corollary of his various disabilities. The truth, surely, is that they are not. Because of his disabilities, P is inherently restricted in the kind of life he can lead.” P’s life, wherever he might be living, was dictated by his disabilities and difficulties. “There is nothing to show that the life P is living in Z House is significantly different from the kind of life that anyone with his concatenation of difficulties could normally expect to lead, wherever and in whatever kind of setting they were living.” There was a “strong degree of normality” to the life P lived at Z House, when normality was assessed by reference to the relevant comparator.
The fact that P could not go anywhere or do anything without support or assistance from the staff at Z House was in reality inherent in and dictated by his various disabilities. It had been on this point that Mr Justice Baker had been persuaded that there had been a deprivation of liberty. To Lord Justice Munby the issue was clear; “It is not something imposed on him by Z House. There is nothing to show that P would not require the same kind of “support and assistance” wherever he was living and in whatever kind of setting. Plainly he would.” Matters such as the occasional restraint, the body suit or the “finger sweeping” to remove materials from P’s mouth were not capable of tipping the balance and should not have been given the weight attributed to them by Mr Justice Baker. The finger sweeping, in itself an obvious intrusion, had to be looked at in context. “It is little different from what any properly attentive parent would do if a young child was chewing or about to swallow something unpleasant or potentially harmful.”
P’s situation was very different to cases such as HL-v- UK 40 EHRR 761 or London Borough of Hillingdon –v-Neary EWHC 1377 per Peter Jackson J.The concrete situation in which P found himself at Z House was instead very much closer to the concrete situation of MEG who was living in a rather similar type of placement. Re MIG and MEG  EWHC 785 per Parker J held that MEG who was living in a small specialist home for adolescents of which she was one four residents was not deprived of her liberty; appeal in her case dismissed by the Court of Appeal P and Q –v- Surrey  EWCA Civ 190 ;  2 FLR 583. “At Z House and outside P is living a life which is as normal as it can be for someone in his situation.”