A recent Court of Protection case raises the interesting question of whether protection of the general public, as well as the patient 'P’, is an issue that should be addressed by the current deprivation of liberty system and its future replacement, the liberty protection safeguards system. Mills & Reeve acted for the NHS Integrated Care Board involved in the complex case of DY v A City Council.
This matter concerned DY, a young man in his 20s, with diagnoses of Autistic Spectrum Disorder, Generalised Anxiety Disorder and Paedophilia. The proceedings related to a challenge by DY’s representatives to the standard authorisation of DY’s deprivation of liberty, in accommodation provided by the local authority.
DY had a complex history, including sexualised behaviour, self-harm, physical ill health and mental health issues. In 2016, he was detained under section 3 of the Mental Health Act 1983. In 2017, DY pleaded guilty to two offences of sexual assault of a child aged under 13, and he was placed on the sex offender’s register. As of June 2021, DY was still considered a high risk to children and known adults.
It was accepted by all parties that DY had mental capacity to conduct the proceedings and make decisions on contact, sexual relations and social media. The issues in dispute were:
- Whether the primary purpose of DY’s care plan was the prevention of harm to DY (rather than, as DY’s representatives submitted, protection of the public); and
- Whether DY had mental capacity to consent to his care and support arrangements.
DY’s representatives submitted that DY did have the requisite mental capacity, which was also the conclusion reached by an expert Consultant Psychiatrist in the case. The NHS and the local authority submitted that DY did not.
It was the judge’s view that the primary focus of DY’s care plan was to avoid harm to DY, and the judge considered it incorrect that the protection of P cannot also include protecting P from harming members of the public.
The judge concluded that DY had capacity to make decisions about his care and support. However, the judge’s view was that there should not be too much reliance on DY making contradictory statements and being inclined not to think things through; the judge said that, ‘in doing these things, DY is no different from many people who do have capacity. People with capacity can make unwise decisions and act on impulse’.
The decision that DY had capacity to make decisions about his care and support had significant implications. It meant that the standard authorisation of DY’s liberty would be terminated, and DY would no longer be compelled to accept the care package that was offered to him. DY could therefore go out alone, and in doing so, he could put himself and others at risk.
Whilst this was of grave concern to those involved in DY’s case, in light of the conclusion that DY had mental capacity to make decisions about his care and support, the judge confirmed that any further offending by DY was a matter for the criminal justice system.
This decision is a reminder to health and care professionals that preventing capacitous adults from making risky decisions is not a matter to be managed by the deprivation of liberty framework. The decision follows the Court of Appeal decision in the case of JB.
The decision will be of interest to health and care organisations providing care and support to individuals with complex needs who have a history of harmful sexualised behaviours and sexual offending.
If you require assistance in respect of the deprivation of liberty safeguards or any other matters concerning mental capacity law, please do not hesitate to get in touch with our team of experts.
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