Best interests, not perfect solutions: Residence under a deprivation of liberty

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What does “best interests” mean when no option seems ideal? In terms of a placement for a disabled patient, it should mean “best available”, not “best imaginable”. It can be difficult, however, for Court of Protection judges to draw the line between “not good” and “not good enough”.

The lesson to take away from North Yorkshire County Council & Anor v MAG, is that a placement would have to be seriously inappropriate for it to be unlawful. Whether it is lawful, but not in the patient’s best interests, is another matter.

The issues

MAG’s placement was certainly less than ideal: the corridors in his flat were too narrow to accommodate his wheelchair, forcing him to get from one room to another on his bottom and using his hands and knees. The local authority sought authorisation for MAG to be deprived of his liberty in this flat while they sought out more appropriate accommodation.

The decision

The judge at first instance, having visited MAG, decided this flat was so inappropriate that she would refuse to authorise a DOL to put pressure on the local authority to find something better. She was not satisfied that the council had taken the steps necessary since at least 2011.

By the time of the appeal, appropriate accommodation had been found and the outstanding issue was whether the time MAG spent in the flat was an unlawful deprivation of liberty. The appeal judge, Cobb J, ruled that the DOL was not unlawful.

He asked:

  • Whether it was in MAG’s best interests to live at the property. 
  • Whether the accommodation was so unsuitable that it breached his rights under the European Convention of Human Rights (ECHR).

The fact that the judge at first instance had already authorised a DOL in this case for more than three and half years did not escape Cobb J’s attention either!

The test for whether a setting was so seriously inappropriate that it was a breach of Article 5 ECHR is a high bar to meet. It was not met in this case, not while there were some positive factors to the placement. The judge said that a DOL in someone’s own home, under a care plan, delivered by qualified care providers was most unlikely to breach Article 5 rights.

Furthermore, it was not appropriate for the judge to refuse authorisation in order to put pressure on the local authority. The judge noted that the role of the Court of Protection is to make decisions on a person’s behalf and that it has no more power, just because it is acting on behalf of an adult who lacks capacity to obtain resources or facilities from a third party, whether an individual or a public authority, than the adult if he had capacity would be able to obtain for himself. It was clearly stated that the Court of Protection is confined to the available options as did the court in Re MN.

What to take away

It is worth noting that the controversy in this case might have been avoided had there not been some dispute as to the “timeliness and vigour” with which the local authority had been looking for alternative accommodation. This did not, ultimately, make the placement unlawful, but it serves as a reminder to care providers that accommodation which is “good enough for now” cannot be relied upon for too long, especially under the gaze of the Court of Protection. The court specifically stated that the proceedings had been going on far too long and that they could have been concluded within a fraction of the time and at a fraction of the current estimated combined costs of more than £230,000.

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