The case of PK and MK is another important decision following the Supreme Court's decision in AGNI. Following on from the decisions in AR and BM, it provides further guidance on how the Courts are applying the new multifactorial approach to deprivation of liberty. The decision also considers what safeguards are available where Article 5 is no longer engaged.
PK and MK's case
PK and MK are 18-year-old twin sisters with significant disabilities and extensive care needs. Both lack capacity to make decisions regarding their residence and care.
They live together in a shared placement and are subject to a number of restrictions, including:
One-to-one supervision within the placement
Two-to-one support in the community and during bathing
Movement sensors for seizure monitoring
Window restrictors
Locked external doors and certain internal storage areas
Child-lock mechanisms during transport
Not being able to leave the placement independently
Continuing supervision for seizure management and safety
The sisters also maintain regular contact with their family, including weekly overnight stays with their mother. The Court placed particular emphasis on their exceptionally close relationship and the fact that they continue to live together.
Prior to AGNI, their circumstances would have amounted to deprivations of liberty under the Cheshire West "acid test". The issue for the Court was whether the arrangements amounted to a deprivation of liberty applying the Supreme Court's new multifactorial approach.
Do PK and MK's restrictions amount to a deprivation of liberty?
The Court emphasised that the placement was, as far as possible, a home environment as opposed to anything resembling the paradigm case of detention. The restrictions existed to enable PK and MK to receive care safely and to meet their needs. The Court also placed weight on the fact that they could personalise their environment, maintain family contact there and continue living together. Neither sister appeared to object to the arrangements and the Court found that their challenging behaviours could not properly be interpreted as objections to the placement itself. The Court nevertheless observed that, if the arrangements had otherwise engaged Article 5, neither sister would have been capable of providing valid consent given their limited understanding of their circumstances and the restrictions imposed upon them. Having considered their circumstances as a whole, the Court concluded that Article 5 was not engaged and that neither sister was deprived of her liberty.
What safeguards are available when Article 5 is not engaged?
The most interesting aspect of the decision is the Court's consideration of what happens once Article 5 protections fall away and Article 8, which does not automatically require continuing Court of Protection oversight, is engaged.
The Court held that the protections available under the Mental Capacity Act 2005 and Care Act 2014 were capable of providing adequate safeguards in this case. These included wellbeing, participation, care planning, review, safeguarding and independent advocacy duties.
Before bringing the proceedings to an end, the Court sought clarification regarding Care Act advocacy for both sisters. Once satisfied that both had been referred for Care Act advocacy and that the matter would be referred back to the Court if advocacy did not materialise, the Court concluded that no further review hearing was required and the proceedings could come to an end.
Key takeaways
This case is a further example of the Courts applying the multifactorial approach established in AGNI. The decision offers some useful guidance on the Court's approach to deprivation of liberty cases, including:
Restrictions which would previously have amounted to a deprivation of liberty under Cheshire West will not necessarily do so following AGNI.
The Court will consider the individual's circumstances as a whole, including the purpose of the arrangements, the nature of the placement and the individual's relationships and lived experience.
Lack of objection is not the same as providing valid consent.
The decision highlights the importance of considering what safeguards remain available where Article 5 is not engaged.
The Mental Capacity Act 2005 and Care Act 2014 may provide sufficient Article 8 safeguards, including through care planning, review processes, safeguarding duties and advocacy arrangements.
If you'd like to discuss any of the issues raised in this blog, please contact James Wood. You can also visit our mental capacity webpage for more information.
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