Deprivation of Liberty at an Urgent Hearing

By Caroline Hanman[1] – 17th November 2020

The person at the centre of this hearing (pseudonymised as “Michael” in this post) is a young man under the age of 18. He’s autistic and he has learning difficulties and ADHD (“attention deficit hyperactivity disorder”).  He sometimes exhibits challenging behaviour which on occasion has resulted in physical injury to other people and destruction of property. The key question before the court is where he should live – and this needs to be decided urgently because his current (temporary) placement is entirely unsuitable.  This was a directions hearing. Substantive decisions about where Michael will live will be made at the next hearing on Wednesday 18^th November 2020.

Background

Until recently, the local authority (LA) provided Michael with a package of care consisting of 3:1 (and at times 5:1) staff support and he was under constant supervision. However, no application to authorise his deprivation of liberty has ever been made to the Court of Protection.  (For a useful explainer about deprivation of liberty for 16 and 17 year olds under the Mental Capacity Act 2005, see this Guidance Note from 39 Essex Chambers).  It is unclear why no such application was made.  When a person is unlawfully deprived of their liberty, a claim for damages can be brought under the Human Rights Act 1998.

This court application had been precipitated by events on 2^nd November 2020.  Michael was then living in his usual placement.  He became upset and caused quite severe property damage and injured at least three people.  Police officers were called and Michael was restrained and taken to hospital where he was detained under s. 136 of the Mental Health Act 1983 and then removed to a “place of safety” (in this case, a residential care home).

The following day (3rd November 2020) it had become clear that Michael was not detainable under the Mental Health Act 1983 and a couple of days later a second opinion (requested by the Local Authority) confirmed this.  So, Michael could not remain in the “place of safety” to which he’d been taken. 

The Local Authority was unable to source a suitable placement for Michael and so he was admitted to an unsuitable placement as a temporary measure. He was admitted to psychiatric unit for teenagers with severe mental health problems on 6^th November 2020.  Again, though, the LA did not make an application to the court to authorise this deprivation of liberty.

As the LA had not applied for authorisation to deprive Michael of his liberty, the organisation running the unit at which Michael had been placed sought to do so. They made contact with a barrister (Ian Brownhill of 39 Essex Chambers) who tried and failed to get hold of the LA by phone and then moved rapidly and efficiently to get the case before the court.  His actions demonstrate what can be done by lawyers who understand the system and are willing to work at unsocial hours to ensure that vulnerable people get the protection they are entitled to.  Mr Brownhill found a solicitor (Katie Webber) willing to act as Michael’s accredited legal representative (ALR) and made an out of hours application on behalf of the current placement organisation to regularise Michael’s care arrangement.   The out of hours judge, Mr Justice Poole, heard the case via email and in the early hours of Saturday morning he appointed the ALR and authorised Michael’s deprivation of liberty until the date of this court hearing.

Listening to the background to this hearing was a useful reminder of how rapidly it is possible to get cases before the court, and of the fact that the Court of Protection works (as Ian Brownhill has tweeted) 24 hours a day, 365 days a year. 

The hearing

“The matter is listed before Your Lordship today”, said Ian Brownhill, “to consider Mr Justice Poole’s order and to determine if Michael’s deprivation of liberty should continue”. 

This case was listed – without a case number – as an “Urgent Hearing” before Mr Justice Cohen at 10.30am on 10 November 2020. (The case number eventually provided was COP 13677686).  So, we were observing developments in a case that had been launched only late on Friday 6^th November and was here in court four days later for a directions hearing i.e., a hearing for the judge to review the case and consider what further information, evidence or action taken by the parties was needed before he could make decisions about the substantive matters before the court – here, where Michael should live).

 Michael is in a setting where he ought not to be – a setting for people who are having acute episodes under the Mental Health Act.  This is negative in terms of his best interests and also for the wider community in [this geographical area] because one of the places of safety cannot be utilised because Michael is there inappropriately.

Ian Brownhill

As the case unfolded it became clear that the LA was actively seeking an alternative placement but was having great difficulty finding somewhere that might be suitable.  I was pleased that the judge made the point that, geographically, some placements would be unsuitable because of the importance of Michael’s family being able to retain regular contact.

The LA (represented by Abid Mahmood of No5 Chambers) clearly was in a difficult situation, and no doubt was on the defensive, but at times his contributions appeared evasive and not terribly helpful (for example: “If any delay has been caused by the LA then there is an unreserved apology for this...” – when it was abundantly clear that they had caused delay).

I was pleased that Mr Justice Cohen took the time to speak directly to Michael’s parents, present in court throughout.  He ensured they had received, read and understood the draft Order (they confirmed it had arrived that morning) and he checked that Michael’s mother wanted to become a party to the proceedings, saying “You’ve obviously been a constant in Michael’s life and very much part of his ‘care package’ if I can put it that way, and I’ll happily join you as third respondent”. 

Mr Justice Cohen went through the draft order carefully, allowing for comment and adding further detail where he considered this to be appropriate.  Observers do not have a copy of the order but from what we heard in court it seems to say that Michael should stay in his current placement, which “clearly” (said the judge) has restrictions in place which amount to a ‘deprivation of liberty’ – but that these restrictions should be as limited as possible and only as necessary “for him continue to reside there”.  He paused at this point and said: “Does one not need to add in: ‘ and to prevent him causing harm to himself and to others?’”

The judge also asked Michael’s mother whether there was anything in the order that “causes you anxiety” – to which she replied “Nothing I’ve seen looks untoward. It looks absolutely fine to me, thank you.”

This exchange[2] also brought a touch of humanity to the proceedings:

This was an interesting case to observe and I feel I have learned a lot.  My professional social work experience is with adults, and although I knew, for example, that the Deprivation of Liberty Safeguards do not apply to people aged under 18, I had not fully appreciated that the court can approve a deprivation of liberty application for younger people if they lack capacity (see the guidance note here).  This admission will be stating the obvious to many people but this point had gone over my head even though I know that when the new Liberty Protection Safeguards (LPS) are introduced they will apply to people aged 16 and over.

Attending these hearings is still very new to me and I am on a steep learning curve. I had not realised that you should have your camera off (in part to preserve bandwidth) unless asked to turn it on.  And I was surprised to discover at the end of the hearing that a journalist, Brian Farmer, invited the judge to provide more detail about the restrictions imposed in the Transparency Order. I did not know that observers could (possibly) ask questions and I found it slightly odd that a journalist seemed to be making it harder to secure transparency within the Court of Protection by suggesting additional restrictions on what can be reported.  I appreciate not everyone would share this view though – and he was clearly concerned to report responsibly and not to provide the media with information that could upset the parents or risk leading to Michael being identified.

I would personally recommend that all social workers take the opportunity to observe Court of Protection hearings, whatever your specialism. They provide useful insight into how the law operates in practice and how decisions taken by professionals can impact on human rights. I feel humbled by the experience.  Remote attendance has opened things up and really helped me reflect on my practice and what I want to achieve when I (soon) return to work.

Social Work has a solid value base which demonstrates a real commitment to ethical practice and to promoting the rights of individuals.  Yet in the two COP hearings I have attended so far, I have had cause to query if this has happened and if so, where the evidence is. In this hearing it is apparently the case that Michael lacks capacity to make his own decision about where to live.  Michael’s parents were in attendance to speak on his behalf (as was his ALR and a representative from the Official Solicitor who will take over from her as his litigation friend).  But it was unclear to me if Michael had been asked if he would like to attend court or what he felt about what was happening. I cannot in all honesty say I heard Michael’s voice at any stage. He may be autistic, he may have learning difficulties, and he may lack capacity, but I would have liked to know more about him and to feel confident that his voice (the most important of all) was really being heard in the court where decisions were being made about him.

I hope to attend the next hearing and to learn how things have progressed with this case, and how Michael’s wishes and feelings are accessed and factored into the decision-making process.

Caroline Hanman is in the process of returning to Social Work following a career break, and will shortly be taking up a post in a local authority Adult Social Care team. She tweets @CarolineRTSW

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[1] I am grateful to Celia Kitzinger who also observed this hearing and was sent (as I was not) the Position Statements by both Ian Brownhill and Abid Mahmood.  This enabled her to cross-check what I had written against the facts as provided in those documents and so to improve the accuracy of this report. (Celia also contributed some of the as-close-as-possible-to-verbatim quotations, including the exchange between the judge and Michael’s mother.)

[2] Observers are not permitted to audio-record hearings so all quotations in this blog post are as accurate as possible but based on written notes scribbled down during the hearing and unlikely to be verbatim.  In addition, a request was made – following a question from the Press Association journalist Brian Farmer – not to mention Michael’s specific age, but to use the term “late teens” which (according to the judge) “is one more blanket of anonymity for him”.  In the exchange above, Michael’s age was indexed twice – once by his mother and once by the judge (i.e. “a xx-year-old lad”) and the extract has been adapted to remove these references.

Photo by Phil Desforges on Unsplash