C v Blackburn with Darwen Borough Council & Blackburn with Darwen Teaching Care Trust
| Jurisdiction | England & Wales |
| Judgment Date | 15 December 2011 |
| Date | 15 December 2011 |
| Court | Court of Protection |
Court of Protection, COP 1205016
Peter Jackson J
B Hewson (instructed by Maxwell Gillott on behalf of the Official Solicitor) for C; J Buttler (instructed by Legal Services) for the Local Authority; the Care Home made written submissions; S Burrows (instructed by Hempsons) for the Care Trust
Whether a person in a care home was deprived of his liberty; whether it was necessary; the powers of the Court of Protection in relation to a person subject to guardianship under s7 Mental Health Act 1983.
C, who was aged 45, suffered a severe brain injury in 2000; he developed epilepsy. He made a number of attempts to commit suicide which led to detention under the Mental Health Act 1983. His behaviour was impulsive, revealing no sense of danger, and he was occasionally aggressive; anti-psychotic medication was used to control his mood. He was admitted to a care home in December 2009, and placed under the guardianship of the local authority (s7 of the 1983 Act) from June 2010 with a condition to reside there; this had been renewed and an application made to the First-tier Tribunal for a discharge of the order had been rejected. The home doors were locked; C was constantly supervised in the home and on trips out, including to see his family, and distraction techniques were used when he sought to leave. In January 2011, after C had kicked down a door when trying to leave, he was made subject to a standard authorisation under the Deprivation of Liberty Safeguards of the Mental Capacity Act 2005 on the application of the home. He sought the discharge of the authorisation.
The evidence before the court was that C lacked the capacity to decide on the issues raised; and that it was in his best interests to remain in the care home, though an independent social worker suggested that he should move within 3 months to a place that could better meet his needs. For C, who gave evidence that he wished to go somewhere else and was dissatisfied with the care home, it was argued that (i) he was not ineligible to be covered by the DOLS regime, (ii) he was being deprived of his liberty, but (iii) the standard authorisation was inadequately specific about what was permitted and so was unlawful, and (iv) it was unnecessary because he was usually allowed out with supervision when he insisted; (v) the Court of Protection could make a declaration as to what residence was in C's best interests and should investigate alternative placements.
The local authority and trust submitted that (i) a guardianship order did not prevent a DOLS authorisation, but (ii) there was no deprivation of liberty; (iii) though not well drafted, the standard authorisation's effect could be understood; (iv) C's interests required intervention, and powers under ss5 and 6 Mental Capacity Act 2005 would be used to prevent serious harm; (v) the question of residence was beyond the power of the Court of Protection when a guardianship order was in place.
Introduction
1. Mr C is a single man aged 45 who lacks capacity to litigate or to make decisions about where he should live. The application made on his behalf under s21A Mental Capacity Act 2005 ('the MCA') on 11 June 2011, is for the discharge of a standard authorisation dated 23 January 2011 under the MCA Deprivation of Liberty Safeguards ('DOLS'). That authorisation was sought by the managers of the home in which Mr C lives ('the care home') and was granted by his local authority ('the LA') as supervisory body.
2. The application under s21A directly raises the question of whether Mr C is being deprived of his liberty and, if he is, whether this is necessary. The proceedings also indirectly raise a wider question about the jurisdiction of the Court of Protection in relation to a person who, like Mr C, is subject to a guardianship order under s7 of the Mental Health Act 1983 ('the MHA').
Background
3. At the age of 4, Mr C was knocked down by a bus. It is not clear whether this had long-term effects but it is the case that he subsequently attended a school for pupils with learning difficulties. After school, he worked for 10 years in his father's business. After the death of his father, he continued to be supported by his mother and 2 sisters.
4. In February 2000, when living in a hostel, Mr C fell off the roof and suffered a severe brain injury for which he required surgery, following which he developed epilepsy. He lived in warden-controlled accommodation until moving in February 2008 to a rehabilitation unit for people with brain injuries. In May 2008 he was detained for 5 weeks under s3
MHA after attempting to kill himself by strangulation. In June 2008, he moved into another unit as part of a community integration programme, before returning to the rehabilitation unit in December 2008. There he made a second, similar suicide attempt and was again detained under the MHA. In April 2009, he bought a large knife and called an ambulance, saying that he was going to kill himself. In May 2009, he made several further attempts to harm himself, including by self-strangulation.
5. In June 2009, Mr C's MHA detention came to an end and in October 2009, he went abroad for a month. On his return in December 2009, Mr C was admitted to the care home where he has now lived for 2 years.
6. In June 2010, the LA made an application for guardianship, following which Mr C made a further suicide attempt. On 25 June 2010 he was made subject to the guardianship of the LA for 6 months under s7 MHA, the criteria for which are that a person suffers from a mental disorder of a nature or degree which warrants his reception in guardianship and that it is necessary in the interests of his welfare or for the protection of other persons.
7. In November 2010, Mr C again went abroad for about a month without the LA's knowledge. On 20 December 2010, the guardianship was renewed for a further period of 6 months.
8. In January 2011, the police were called after Mr C had kicked down a door when trying to leave the care home. As a result, assessments were carried out and a standard DOLS authorisation was issued on 23 January 2011 for 12 months. This was reviewed in May 2011, and some less stringent controls on Mr C's visits to his family were substituted. In the same month there was an incident of aggression by Mr C...
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