Cheshire West and Chester Council v P & Anor

The principal issue which I have had to determine in these proceedings is whether the circumstances in which a man who lacks capacity (whom I shall refer to as “P”) amount to a deprivation of liberty. This is, of course, a matter which commonly arises in cases under the Mental Capacity Act 2005. In this case, however, the court process has been seriously impeded by misconduct on the part of employees of the local authority. As a result, there are two further issues to be decided – first, whether the other parties to the proceedings should be awarded costs against the authority and, secondly, whether the court should authorise the publication of the name of the authority.

The bundle of papers filed in these proceedings did not include a chronology prepared by counsel. There is, so far as I am aware, no requirement for counsel to prepare such a document under the rules, but it seems to me that in future all counsel should prepare such a document for a contested hearing, at least in the High Court. As I have observed elsewhere in the context of proceedings under the Children Act 1989, such a chronology is of very great assistance to the court. In the event, I have taken this summary of background from the papers that were filed in these proceedings, relying in particular on the summary of the history set out in the report prepared by Miss Dawn Whitaker, an independent social worker who was instructed to advise the court in circumstances that I shall relate below.

P is a thirty-eight year old man who has lived in Cheshire all his life. He was born with cerebral palsy and Down’s Syndrome and has a history of cerebral vascular accidents. He presents with significant physical and learning disabilities. It is accepted by all parties that he lacks the mental capacity to make decisions as to his care and residence.

P lived with his mother (“M”) from birth until 2009. A care package was provided by the local authority for a brief period in 2000, but this was quickly discontinued by M. However, P has for many years attended a local day service on five days a week and in addition received respite care for a total of about eight weeks a year. In December 2008, M’s health began to deteriorate and the package of respite care was increased. M’s health continued to deteriorate to the point where the local authority concluded that she was no longer able to care for her son. In May 2009, therefore, P was taken into emergency respite care. On 18 June 2009, a best interests meeting (to which the family were invited but did not attend) unanimously concluded that it would be in P’s best interests to reside in a care setting. On the following day, the local authority filed an application in the Court of Protection under the Mental Capacity Act 2005. On the same day, a District Judge sitting at the Archway Tower court gave directions in those proceedings. After a number of other interim direction orders, the matter came before His Honour Judge Allweis in Manchester on 4 September. On that occasion, the learned judge declared “on an interim basis” that

In November 2009, P moved to live at another establishment, which I shall call “Z House”, where he has remained to this day. The independent social worker, Ms Whitaker describes Z House as “a large and spacious single-level bungalow” in which “the facilities generally are modern and cosy with a pleasant atmosphere.” P has his own room that has been personalised to his needs and access to two nearby adapted bathrooms. Z House can accommodate up to four residents at any time. The normal staffing ratio during the day amounts to two staff for all four residents. In addition, however, P receives additional one-to-one close personal supervision during the daytime. P continues to attend the day centre five days a week, leaving Z House at 9.30 in the morning and returning at 5.00 in the evening. Until recently, P did not receive one-to-one supervision at the day centre but, following increased concerns about managing risk, that level of supervision has recently been introduced. At night, there is one “waking” member of staff available at Z House during the night, shared across two adjacent properties. The scheme operates a duty officer system whereby senior support workers are available to give advice to in-house support workers.

The evidence clearly demonstrates that the standard of care P has received at Z House has been generally good. As a result of his disability, he needs a high level of care. He can move for short distances without support, but in order to mobilise further he requires the use of a wheelchair. His difficulty in mobilising means that he is at risk of falling, particularly in situations where he may find it difficult to maintain his balance. He requires prompting and assistance with all activities of daily living, including mobility, nutrition, eating, personal hygiene and continence. He has no teeth and therefore requires a soft food diet. A speech and language therapist has recently diagnosed a problem with his swallowing reflex which, coupled with his absence of teeth, presents a risk of choking. Regular bathing is essential for P not only as a means to ensure personal hygiene but also as a method by which to obtain and improve his skin integrity as he has long term chronic dermatological problems.

Although P has no expressive speech, he makes sounds which people who know him well are able to understand. Care staff told Miss Whitaker that P is able to follow simple speech and conversation and to respond to straightforward questions either by making sounds or through gesture. Miss Whitaker stresses that it is essential that a specialist communication profile for P is developed as part of his support plan, based on continued speech and language therapy assessment.

Continence management has been a longstanding and significant problem for P. Miss Whitaker describes how this received an inconsistent approach prior to his being received into the care of the local authority. It seems that, whilst living at the family home, he did not wear any continence pads. M’s practice was to allow him to be naked in the home environment, despite his double incontinence. P has a long history of pulling at his continence pads and as a result they become shredded and torn. Of greater concern is the fact that P has developed a habit of putting the pieces of padding in his mouth and on occasions ingesting them. On occasions this has included the faecal contents of the pads. In addition to the obvious hygiene risk involved, there is, in P’s case, the added danger of choking.

This aspect of P’s behaviour has caused particular difficulty to those entrusted with his care. A variety of techniques have been identified to tackle the problem, including monitoring his behaviour in order to ascertain the risk factors; structured toileting arrangements throughout the day to reduce the need to use pads; positive reinforcement strategies to promote improved behaviour; the use of specialist underwear; continence advice; and verbal redirection techniques. In addition, inevitably, care staff have sometimes had to resort to physical intervention. On occasions, P has “stored” pieces of incontinence pad and faeces in the roof of his mouth. In order to remove this material, two members of staff have had to use what is known as a “finger sweep” method, which I understand to involve inserting a finger into his mouth to check for and remove any such material. According to Miss Whitaker, “the two-to-one staffing is necessary for one person to open P’s fist to hold and clean his hand to prevent him smearing it over himself or others, while the other person takes action to remove and refresh his pad and clothes.” Miss Whitaker goes on to describe how P will attempt to fight against staff during these interventions. She also states: “despite implementation of the preventative strategies described, and use of close proximity one-to-one staffing, it is evident that P continues to pull at his continence pads and succeeds in tearing bits off, and accessing its contents, resulting in his putting it in his mouth and ingesting it”.

Recently, as described by Miss Whitaker, the staff at Z House have adopted a new approach, involving P wearing an all in one body suit sewn up at the front, to prevent his hands touching his groin area, the only access being via a zip at the back. To date, this had proved a successful way of managing his behaviour, although it is clear that there remains a risk that he will manage to revert to his behaviour at some point.

P has a long history of challenging behaviour. On occasions, he appears uncooperative by, for instance, sitting on the floor and refusing to move. He also, on occasions, strips off his clothes and throws things. The records of Z House and the day centre contain numerous examples of these types of behaviour. In addition, P has a habit of self-harming by scratching at his neck, chest and arm, and occasional smearing faeces. On occasions, he has assaulted others by pulling, pinching, grabbing and scratching. Again, there are many examples of this behaviour on the records of Z House and the day centre. P’s challenging behaviour has been a long standing aspect of his life. As long ago as 1995, it was suggested that this behaviour was a method of communication. It is a principal reason for the close one-to one supervision which is provided for him at all waking times.

Whilst the evidence suggests that P’s care and treatment at Z House has generally been of a high quality, there have been concerns about the management of some of his more extreme behaviours. The Official Solicitor, who had been appointed to act as his litigation friend in these proceedings, became concerned that more restrictive measures would sometimes be needed to deal with such behaviours, and that those measures would necessarily involve a significant element of physical intervention and restraint which might amount to a deprivation of his liberty within the meaning of article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. The local authority, however, took a different view, contending that the level of physical intervention involved amounted merely to a restriction on, rather than a deprivation of, liberty. As a result of this dispute, the proceedings were transferred to be heard by a judge of the High Court and listed before me in Manchester in July 2010.

It was originally envisaged that the hearing would consist of legal argument based on contested written evidence filed by the local authority. Shortly before the hearing, however, the advocates were alerted to the fact that the evidence filed by the local authority did not give a full picture of the degree of physical intervention that appeared to be involved in caring for P. In particular, there was no mention in the evidence of two specific incidents that had occurred in April and July 2010, of which one had required P to be taken to hospital.

As a result, it was agreed that the court was not then in a position to make a final determination as to whether the arrangements amounted to a deprivation of liberty, so that the proceedings had to be adjourned to allow the local authority to file further evidence, including copies of the records kept by staff at Z House. The court was therefore asked to extend the interim order and declaration that it was in P’s best interests to reside at Z House. Prior to making that order, the court received brief oral evidence from one witness, A, a senior support worker at Z House. The focus of the questioning was directed at the issue of physical intervention. A described in more detail steps taken by staff to prevent P putting incontinence pads in his mouth. She described how the staff adopted measures of diverting P as a first step and only resorted to physical intervention, or restraint, as a last resort. Asked by me how often it was necessary to take physical action to restrain P for one reason or another, A responded “probably a couple of times over the course of a month”. She described in more detail an incident which had occurred in April 2010 when P, unbeknown to staff members, had ingested a piece of incontinence pad and as a result his airway had become obstructed leading to his attendance at hospital.

In the course of her evidence, A told the court that the incidents to which she had referred would be recorded on accident forms in the local authority records.

A further informed the court that the local authority had a policy of “no restraint”. Neither she nor any other member of staff at Z Road had received any training in restraint techniques.

At the conclusion of A’s evidence, and after hearing further submissions, I made an order renewing the declaration that P lacked capacity to litigate and to make decisions as to his residence etc and further ordered that it was lawful and in his best interest that he should (a) continue to reside at Z House; (b) continue to have contact with his family to be arranged informally between the parties, and (c) continue to receive care and support in accordance with the care plan and associated support programmes or any subsequent updated version thereof. I further ordered that, insofar as his care plan and associated programmes at Z House involved a deprivation of his liberty, it was lawful for the local authority to deprive him of his liberty in his best interests. I further ordered the local authority to disclose to the Official Solicitor for onward disclosure all records relating to P within its control at Z House and adjourned the case for final determination on the issue of deprivation of liberty to the first available date after 1 October 2010.

In the course of the submissions made at the conclusion of A’s evidence, it was suggested that in the light of the new information that had now emerged concerning the difficulties of managing P’s behaviour, it might be necessary for an independent social worker to be instructed to carry out an assessment. In the course of exchanges with counsel, I made this observation,

“I would think it unlikely at the moment that it is going to be a case for an independent social worker… I anticipate that when you get the disclosure you will see that there have been incidents and you will see there have been other matters which should have been disclosed to you, but unless there is a good reason for thinking that those incidents give rise to concern about the quality of care, I do not get that impression at the moment and I do not think it is going to be a case for an independent social worker.”

Following that hearing, an extraordinary incident occurred which fundamentally affected the course of these proceedings. A member of staff at Z House drew to the attention of the local authority the fact that, following the hearing, A and at her instigation other members of staff had altered a number of records concerning P’s care and treatment. In particular the incident form relating to 2nd April was re-written and other notes changed inter alia to omit references to (a) P attempting to hit members of staff; (b) P attempting to remove his incontinence pad and (c) a member of staff having to hold P while trying to stop him removing the pad. These actions led to disciplinary proceedings for gross misconduct being taken against A and others, leading to dismissal.

In addition, the discovery of the fact that the records had been re-written after the hearing in July understandably undermined the confidence which the Official Solicitor and M and her representatives had in the local authority’s care plan for P. On 19 August, M’s solicitor wrote to the local authority seeking full disclosure of the circumstances in which the records had been amended and adding:

“In the circumstances you will not be surprised that we can have little confidence in any of the documentation which accounts for the care package which P receives. We believe that it is therefore necessary for an independent social worker expert to be instructed to report to the court on the issue of P’s best interests in relation to his residence, the care he should receive and the manner of its delivery, and contact with other individuals.”

M’s solicitors also asserted that the local authority should be responsible for meeting the costs of the instruction of the independent social worker. They also asserted that it was now clear that P’s care plan involved physical intervention and restraint and thus amounted to a deprivation of liberty and that accordingly the costs incurred in arguing the issue of deprivation of liberty should also be borne by the local authority.

On 25 August, the local authority replied giving further details of the circumstances in which the records have been amended. In the letter, however, the local authority disagreed with the interpretation of the care plan now put forward on behalf of M. It stated inter alia:

“… minimal intervention by his support team has always been envisaged and planned for in order to further P’s best interests. There appears to have been a great deal of confusion in this case on all sides regarding the issue of restraint. Such confusion seems to have stemmed from the use of language regarding that issue: In particular, whether the local authority has “no restraint policy” or whether it has “a no restraint policy”. As you know the use of proportionate restraint is lawful under the Mental Capacity Act 2005 in respect of someone lacking capacity and the common law permits the emergency use of restraint in respect of those with capacity. The local authority’s policy entitled “Guidance to Staff on Violence in the Work Place” was published on 8 October 2002. This sets out preventative measures and procedures to be followed when staff are faced with potentially violent situations. These include situations where the violence is imminent as well as the situations defined in an individual’s risk assessments and intervention plans. Appendix 2 to the policy is the “Guidance on the use of restricted physical interventions” published by the Department of Health and Department for Education and Skills in September 2002 which defines the full range of restrictive physical interventions and gives guidance on their use. The policy is not specific to the setting of supported living.”

The local authority added:

“With regard to the instruction of an independent social work expert, we agree with Baker J that this case does not require such a report. Such costs would be disproportionate and unnecessary.”

I interpose at this point the observation that my comment at the hearing of 29 July as to the need for an independent social worker had, of course, been made before the discovery of the alteration of the records.

On 22 October 2010, M’s solicitor filed an application for the instruction of an independent social worker. In an affidavit of support, M’s solicitor relied on

I reserved the question of who should bear the cost of instructing the independent social worker on the basis that, in the first instance, the cost of the instruction should be met by the Official Solicitor and M in equal shares. I gave directions for the filing of the report and directed the matter be listed for a final hearing before me in February 2011.

Miss Whitaker’s report was filed on 24 January 2011. It contains an exhaustive analysis of P’s circumstances and needs, and of the care plan and other support services being provided for him. That analysis includes consideration of the many instances of violent or challenging behaviour exhibited by P and the methods used by staff at Z House to control that behaviour.

Having conducted the balancing exercise as to the advantages and disadvantages of the placement at Z House, as recommended by the Court of Appeal in Re A (Medical treatment: Male Sterilisation) [2000] 1 FLR 549, Miss Whitaker concluded that it was in P’s interests to remain living at Z Road. She added, however,

“ … this recommendation is dependent upon serious consideration being given to the assessor’s recommended adjustments to P’s care package; and a commitment to the implementation of those elements identified as essential.”

Miss Whitaker expressed the view that P’s care package did not meet P’s needs and proceeded to make a number of recommendations for its adjustment. In particular, she expressed the opinion that the level of restraint or physical intervention required in P’s case was greater than that currently being provided. She based that recommendation upon consideration of what she described as “a well-documented body of evidence – one that demonstrates how, notwithstanding the significant amount of restrictive practice outlined within this report, P continues to present a significant risk of harm to himself and others.” Her recommendations included specific proposals concerning the use of physical restraint and other restrictive measures. She endorsed the use of an all-in-one body suit which had been introduced after her instruction, but warned that the suit might not be suitable in all circumstances, particularly warm weather, and that use of physical intervention was “highly likely” when P was not using the body suit.

Miss Whitaker also expressed the opinion that contact between P and M in M’s home was in P’s best interests. She recommended that it should continue on a weekly basis and in addition that contact should take place at Z House and at the day centre.

The matter therefore came back before me at the beginning of February for what was intended to be the final hearing. Miss Whitaker attended to give evidence. Cross-examined by Mr Allen on behalf of the local authority, she said that it was still early days to say if the body suit was an effective way of managing the risk arising from P’s behaviour with his continence pads. She remained concerned about how suitable it would be in hot weather bearing in mind P’s chronic skin condition. Miss Whitaker reiterated the concerns that, whereas there was little if any evidence from the documents that P was receiving physical intervention, it was quite clear from talking to people on the ground that this was happening. Particular concern arose when P put his soiled fingers in his mouth. Miss Whitaker described in evidence how, if this happened, one person wearing protective clothing opened his mouth and carried out a two-finger sweep across the roof of his mouth to remove the contents. It was suggested to her that this amounted to first aid. Miss Whitaker retorted that, whilst this might be how the general public might regard it, in her view, and in the view of those working in the sector, it would be recognised as physical restraint.

Miss Whitaker was of the view that the care plan needed to express more clearly the procedures to be followed if P attempted or succeeded in putting part of his pad in his mouth. In addition, she expressed the view that the local authority needed to commission an accredited training programme for those working with P for physical intervention so as to give staff real confidence in managing the problem as opposed to merely responding to situations as and when they arose. She assessed that the training needed to be practical rather than theoretical. She expressed the view that it was not fair to P for this not to be set out expressly in the care plan bearing in mind that, if he choked on a pad, it could be life-threatening. Miss Whitaker also told the court that, in her opinion, recordkeeping at Z House was “generally poor”. There had been some improvement but it was still not satisfactory. In addition, she thought there needed to be more regular discussion about P’s case at staff handovers. All in all, she thought that “prevention is better than reactive strategies”.

On the issue of contact, Miss Whitaker expressed the view that it could be ascertained quite quickly whether a two-to-one staff ratio was necessary for supervised contact between P and M. There needed to be evidence upon which to make the decision on that issue. To date, she reported that the visits that had taken place had been successful with no problems identified.

After Miss Whitaker had given evidence, the parties’ representatives had further discussions. On the following day, Mr Allen on behalf of the local authority indicated that the local authority had agreed to amend its care plan, that Miss Whitaker had looked at the proposed amendments and made further suggestions which were being considered by the local authority. It was clear, however, that it would not be possible to complete this process during the hearing, and I therefore reluctantly agreed to adjourn the matter for a further period of two months for this process to be completed. I made an order extending the existing declarations as to capacity and that it was lawful for P to continue to reside at Z House. I gave further directions for the adjourned hearing, including a direction that a full copy of the disciplinary investigation report concerning A and the other employees should be served on the respondents in a form that was unredacted, save for detail of the employees’ employment history and disciplinary records and any legal advice given to the local authority.

Thereafter, there were further negotiations between the local authority and those acting for the respondents in which Miss Whitaker participated as a result of which the care plan was refined further. By the time of the hearing before me on 4 April, many of the outstanding issues had been resolved, but, as set out in the position statement filed by Mr Joseph O’Brien on behalf of M, there were three matters outstanding of some importance. Eventually, however, all of those issues were also resolved by further amendment of the care plan, with some assistance from the court. In particular, the part of the plan dealing with behaviour intervention was substantially re-amended to deal with the problems that might arise if P has accessed his continence pad and as a result has either parts of the padding and/or faeces in his hands. The final version of the plan reads as follows:

“Using protective clothing, one staff member is to hold P’s hand and ask him to open his hand. If P is uncooperative, one member of staff must open his fist, remove the contents and clean his hand, to prevent him from throwing, smearing or ingesting it. The second member of staff should ask, coax and direct in assisting P to change his pads/clothing and freshen up. In the highly unlikely circumstance that P does not cooperate, depending on the circumstances, the members of staff will have to decide whether this needs to be done (a) in a location where the incident has arisen or (b) in another location. If it is decided that another location will be preferable (such as a bathroom or lavatory) the member of staff will have to establish whether P is willing to go to that location, and if not, whether restraint should be used to achieve that end. The decision whether a change of location is required, and, if so, whether restraint is necessary to achieve it should be taken having regard to (a) the risk of harm to P (b) the risk of harm to others, including members of staff, and (c) P’s dignity and personal autonomy.”

In addition to the various amendments proposed and ultimately agreed to the care plan, there is one other development of importance prior to the hearing before me on 4 April. A statement was filed from H, the Head of Operations in the Adult Social Care Directorate of the local authority. In the statement, H acknowledges that “it is clear that staff did not have guidance about the use of restraint. At the last hearing the local authority indicated it would consider the introduction of an explicit physical intervention policy. A new policy has now been drafted and will be presented at the Departmental Management Team for ratification on 28 March.” The draft policy entitled “Supporting People with Challenging Behaviour including Physical Intervention Policy Standards” is appended to H’s statement. I understand that the policy was duly presented and ratified as anticipated. H’s statement continues:

“It is important that full training in this new policy be quickly implemented. All staff working with P will be trained in April… there is no doubt that staff are concerned with what they can or cannot do”.

H continues by making this observation:

“Sadly, this case has had a detrimental impact on those working at Z House as support staff seem to think that physical restraint is somehow “a bad thing” that should be avoided. This in part is due to a confusion of language between the Court and care staff. They perceive physical intervention as an action to prevent someone from hurting themselves or others as part of the wider care and support plan. The Court seems to me to define it more broadly as any hands on care. The staff have all been trained in personal care routines in safeguarding, and moving and handling training, and I would want to reassure the Court that despite staff having a heightened sense of anxiety they continue to meet P’s needs in a professional and respectful manner. One of the key lessons learnt is that the local authority needs to ensure that those working with incapacitated adults presented with challenging behaviour are reassured that a proportion of restraint is perfectly lawful. The legal terms “deprivation of liberty” and “restraint” unfortunately invoke negative connotations in lay minds when they are intended to promote a person’s best interests… I want the court, however, to be reassured that all staff working with such service users will receive training in the new… policy. To this end, the council has agreed to employ an appropriate external trainer to provide practical training in the new policy.”

H concludes:

“In conclusion, there is no doubt the previous guidance was not strong or comprehensive enough, often with an emphasis on managing aggressive or violent behaviour, as opposed to guidance on physical interactions in relation to promoting the care and safety of service users. Specific issues are managed, as in P’s case via the risk assessment process. Whilst full risk assessments and action plans will remain important, the clear gap re a lack of guidance to staff re physical intervention will now be closed through the new policy.”

As a result of the amendments to the care plan, the introduction of the new policy and the assurance that the training necessary for implementing that policy will be provided on an urgent basis to staff at Z House, the Court is content to endorse the care plan as representing the best solution for meeting P’s multiple needs. In view of the history and complexities of this case, however, it is acknowledged by all parties and accepted by the Court that, whatever decision I reach on the issue of deprivation versus restriction of liberty (as to which, see below) it is right that there should be a further review by way of oral hearing conducted by the court later this year. At that hearing, the court will determine, inter alia, the frequency of future Court reviews.

Against that background, I turn to consider the principal outstanding issue, namely whether the circumstances in which P is now placed at Z House amount to a deprivation of liberty within the meaning of article 5 of ECHR. There also remains a subsidiary issue as to the costs of these proceedings.

It is not necessary for the purposes of this judgment to set out the background to the amendments to the Mental Capacity Act 2005 which were introduced following the decision of the European Court of Human Rights in the case of HL v United Kingdom (2005) 40 EHRR 32 that the use of the common law doctrine of necessity to detain and restrain patients who lacked capacity when detention was in their own best interests did not meet the requirements of article 5(1)(e) of the European Convention for the Protection of Human Rights and Fundamental Freedoms and that such a detention must be carried out in accordance with a procedure prescribed by law. That background is set out at length in my earlier decision in G v E [2010] EWHC 621(Fam) [2010] 2 FLR294. For the purposes of this judgment, it is only necessary to consider the law concerning the identification of a deprivation of liberty.

The relevant provisions of Article 5 (1) provide: “Everyone has the right to liberty and security of the person. No-one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law …(e) the lawful detention of … persons of unsound mind…” Article 5(4) provides: “everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by the court and his release ordered if the detention is not lawful”.

Following the decision of the European Court, the 2005 Act was amended in 2007. The new section 4A, headed “Restriction on deprivation of liberty” provides:

“(1)

This Act does not authorise any person (“D”) to deprive any other person (“P”) of his liberty.

(2)

But that is subject to–

(a)

the following provisions of this section, and

(b)

section 4B [concerning life-sustaining treatment].

(3)

D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.

(4)

A relevant decision of the court is a decision made by an order under section 16(2)(a) in relation to a matter concerning P's personal welfare.

(5)

D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty).”

Schedule A1 to the Act provides a complex and comprehensive system for the arrangement and authorisation of the deprivation of liberty of persons lacking capacity by local authorities under the so-called Deprivation of Liberty Safeguards (“DOLS”), subject to the overriding supervision of the Court of Protection. In this case, no authorisation for the deprivation of P’s liberty was ever sought or granted and it is therefore unnecessary to set out the detailed provisions of the DOLS in this judgment.

The care plan under which P is being provided with care and support meeting his best interests is approved by the court and it is thus a matter for the court as to whether or not those arrangements amount to a deprivation of liberty. If they do, the court is under an obligation to ensure that Article 5 is complied with. As a result, it is the practice of the Court to review the arrangements regularly: see JE v DE and Surrey CC [2006] EWHC3459 (Fam) [2007] 2FLR1150, and GJ v A Foundation Trust [2009] EWHC 2972 (Fam).

In determining whether P is being deprived of his liberty, the court must follow the following legal principles.

At a more practical level, guidance is given as to the identification of a situation that amounts to a deprivation of liberty in the Deprivation of Liberty Safeguards Code of Practice 2008. Chapter 2 of the Code is entitled “What is a deprivation of liberty?” At paragraph 2.5, there is what is described as a “non-exhaustive” list of factors pointing towards there being a deprivation, namely where

Further guidance is provided by a recent decision of the Court of Appeal in the case of P (otherwise MIG) and Q (otherwise MEG) v Surrey CC and others [2011] EWCA Civ 190, on appeal from the decision of Parker J in Re MIG and MEG [2010] EWHC 785 (Fam), and in particular the judgment of Wilson LJ from which the following points of relevance emerge.

All counsel in their extensive and helpful written submissions, supplemented by articulate oral submissions, refer to several other authorities, both from the European jurisprudence and the English courts, a number of which were relied on as factual examples of cases in which the circumstances were held to be, or not to be, a deprivation of liberty, as the case may be. I have considered all the authorities cited with some care, but do not think it necessary to refer to them further. Clearly, all these cases turn on their own facts. The court must be careful not to be over influenced by what another judge has decided on a particular set of facts since subtle differences in the circumstances of each case may tip the balance one way or the other.

There is, however, one further point of law which calls for comment. In his submissions on behalf of the local authority, Mr Allen argued that there is an analogy between claims for false imprisonment and cases like this in which the question arises whether circumstances amount to a deprivation of liberty. Mr Allen draws on this comparison in support of his contention that the court must follow the principle “he who asserts must prove”. Specifically, he submits that “as it is the other parties (i.e. the Official Solicitor, on behalf of P, and M) who assert that Article 5 was engaged, it is for them to prove that the circumstances amount to a deprivation, rather than a restriction on liberty”. He goes on to argue that the requisite standard of proof is the balance of probabilities, and that “the more serious allegation or its consequences if proven, be stronger must be the evidence to satisfy the balance of probabilities”.

This argument is robustly rejected by Mr O’Brien on behalf of M, supported by Mr Burrows on behalf of the Official Solicitor. Mr O’Brien describes Mr Allen’s submission on this point as “misconceived”. He argues that the Court of Protection is exercising a protective jurisdiction in relation to incapable adults and submits that, whilst rebutting the presumption of capacity must be on the balance of probability, no such burden or standard is provided for in relation to best interests decisions. The question of best interests is primarily an enquiry by the courts, weighing into the balance various factors. No party is under a burden of proof; rather the court, after investigating best interests, decides that issue on a balance of probability.

I unhesitatingly accept Mr O’Brien’s submission on this point and reject Mr Allen’s contention. The processes of the Court of Protection are essentially inquisitorial rather than adversarial. In other words, the ambit of the litigation is determined, not by the parties, but by the court, because the function of the court is not to determine in a disinterested way a dispute brought to it by the parties, but rather, to engage in a process of assessing whether an adult is lacking in capacity, and if so, making decisions about his welfare that are in his best interests. It may be that one party or another asserts a fact which, if in dispute, must be proved, to the requisite standards of the balance of probabilities, but the question of whether or not the circumstances as a whole amount to a deprivation of liberty is not one which falls to be determined by application of a burden or standard of proof.

It is accepted that the second and third conditions for the circumstances to amount to a deprivation of liberty are satisfied. The subjective element is satisfied because P lacks the capacity to give his consent and, as both the local authority and the Court are engaged in determining where he should live, the State is responsible for his circumstances. The question in dispute is whether his circumstances objectively amount to a deprivation of liberty.

On behalf of the local authority, Mr. Allen identifies the following matters as indicating that P’s liberty is being restricted but not deprived:

Mr. Allen submits that all this amounts to the most normal life possible for P. The measures have been taken and reviewed in a structured way and that, looked at objectively, his circumstances do not amount to a deprivation of liberty.

On behalf of P himself, the Official Solicitor through Mr. Burrows argues to the contrary and submits that P’s circumstances do amount to a deprivation of liberty. He is supported by Mr. O’Brien on behalf of M. Their reasons can be summarised as follows:

All cases turn on their specific facts. When deciding where on the spectrum each case falls, an intense scrutiny is required of the particular circumstances.

Clearly, the local authority and those who work at Z House have taken very great care to ensure that P’s life is as normal as possible. There are a number of features that, by themselves, might suggest that this is not a case where he was being deprived of his liberty. The type of accommodation is characteristic of the type identified by Wilson LJ in P and Q v Surrey CC as being not designed for compulsory detention. P has regular contact with his family. He attends a day centre five days a week, and enjoys a good social life with other residents and staff and in the community. All these features help to give his life a strong degree of normality.

On the other hand, his life is completely under the control of members of staff at Z House. He cannot go anywhere or do anything without their support and assistance. More specifically, his occasionally aggressive behaviour, and his worrying habit of touching and eating his continence pads, require a range of measures, including at times physical restraint, and, when necessary, the intrusive procedure of inserting fingers into his mouth whilst he is being restrained.

In my judgment, the steps required to deal with his challenging behaviour lead to a clear conclusion that, looked at overall, P is being deprived of his liberty.

In view of H’s statement, I make it clear that, in reaching that finding, I am not being critical of the local authority or the staff at Z House. In my judgment, it is almost inevitable that, even after he has been supplied with a bodysuit, P will on occasions gain access to his pads and seek to ingest pieces of padding and faeces in a manner that will call for urgent and firm intervention. Those actions will be in his best interests and therefore justifiable, but they will, as a matter of concrete fact and legal principle, involve a deprivation of his liberty. The reason for attaching that label to those actions is not to stigmatise either P or his hard-working and dedicated carers, but so that all involved with his care recognise the implications of what is happening.

Two important things flow from a conclusion that circumstances amount to a deprivation of liberty. First, those working with P are under a clear obligation to ensure that the measures taken are the least interventionist possible. That requires a regular reassessment of his circumstances, to see if there are alternative strategies that can be adopted that meet his needs without involving actions that would limit the impact on his liberty. The bodysuit is one example of such a strategy. Another example would be an intensive programme of education trying to teach and encourage P not to behave in ways that require restraint.

Secondly, where circumstances involve a deprivation of liberty, there must be regular reviews by the Court to comply with Article 5. In this case, the local authority has conceded, in the light of past events, that there should be such reviews in any event whatever my conclusion on the question of deprivation of liberty. In my judgment, however, that concession does not obviate the need for the Court to scrutinise the circumstances and declare whether or not the circumstances do amount to such a deprivation.

I hold that the circumstances of P’s life at Z House, and the provision of care and support as set out in the amended care plan, amount to a deprivation of liberty within the meaning of Article 5 of ECHR and the Mental Capacity Act 2005.

The Official Solicitor and those representing M seek a costs order against the local authority.

The rules governing the award of costs in the Court of Protection are set out in Part 19 of the Court of Protection Rules.

Rule 157, entitled “Personal welfare – the general rule”, provides:

“Where the proceedings concern P’s personal welfare, the general rule is that there will be no order as to the costs of the proceedings or of that part of the proceedings that concerns P’s personal welfare.”

Rule 159, headed “Departing from the general rule”, provides as follows:

“(1)

The court may depart from rules 156 to 158 if the circumstances so justify, and in deciding whether departure is justified, the court will have regard to all the circumstances including

(a)

the conduct of the parties;

(b)

whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(c)

the role of any public body involved in the proceedings.

Rule 160 provides that, subject to the provisions of the Court of Protection Rules, some parts of the Civil Procedure Rules 1998 shall apply, with appropriate modifications, to costs incurred in relation to proceedings under the Court of Protection Rules. This includes Part 44 of the Civil Procedural Rules relating to costs. Under CPR 44.3(1) “the court has a discretion as to (1) whether the costs are payable to one party to another; (2) the amount of those costs; and (3) when they are to be paid.” Under CPR 44.3(6), “the orders which the court may make under this rule include an order that the party must pay (1) a proportion of another party’s costs; (2) a stated amount in respect of another party’s costs; (3) costs from or until a certain date only; (4) costs incurred before proceedings have begun; (5) costs relating to particular steps taken in the proceedings; (6) costs relating only to a distinct part of the proceedings; and (7) interest on costs from or until a certain date, including a date before judgment.”

To date there is relatively little reported authority on how the Court of Protection should exercise these powers to make costs orders. In a judgment reported as G v E, Manchester City Council and F (Costs) [2010] EWHC 3385, I observed (at para 38):

“The work carried out by the local authorities and other public bodies such as NHS Trusts in this important field cannot be underestimated. Thousands of dedicated professionals and support staff devote their lives to helping people with learning disability, for long hours and low salaries. All public bodies face very difficult times as they struggle to come to terms with the implications of the cuts in public expenditure recently announced. The Court of Protection must work with these professionals under the collaborative philosophy underpinning the MCA and its Code of Practice ….”

The same observations apply to the local authority and its employees in this case.

In that judgment, however, I added (at para 39 to 40):

“That does not mean, however, that local authorities, or any other public bodies, can be excluded from liability to pay costs in appropriate cases. The rules about costs must be applied fairly to all litigants, regardless of who they are. In this case, all the costs of litigation will be borne by the public purse. The Legal Services Commission is an equally hard-pressed public agency and the Commission – and the taxpayers who fund it – are entitled to look to the Court to apply the costs rules impartially and ensure that there is a level playing field. Gone are the days when it is appropriate for a court to dismiss applications for costs on the basis that it all comes out of the same pot. Such an approach would undermine confidence in the courts and distort public administration and accountability …. Of course, it is right that the Court should follow the general rule where appropriate. Parties should be free to bring personal welfare issues to the Court of Protection without fear of a costs sanction. Local authorities and others who carry out their work professionally have no reason to fear that a costs order will be made. The submission that local authorities will be discouraged from making applications to the Court of Protection if a costs order is made in this case is a thoroughly bad argument. The opposite is, in fact, the truth. It is only local authorities who break the law, or who are guilty of misconduct that falls within the meaning of rule 159, that have reason to fear a costs order. Local authorities who do their job properly and abide by the law have nothing to fear. In particular, the Court of Protection recognises that professional work in this very difficult field often involves very difficult judgments and decisions. The Court is not going to impose a costs burden on a local authority simply because hindsight demonstrates that it got those judgments wrong.”

In this case, Mr. Burrows submits that the local authority should be ordered to pay a large part of the costs of this action as a result of its conduct. He contends that the local authority has “systematically failed to be candid with the Official Solicitor and the Court in relation to the critical issue of restraint”. He rightly points out that one of its employees misled the Court under oath. In addition, he points to the fact that the local authority resisted the joint instruction of an independent social worker on the grounds that such an instruction was unnecessary, yet, once the Court had allowed the instruction of Miss Whittaker, who subsequently provided a comprehensive report, the authority eventually adopted her recommendations in their entirety, although only after a series of court hearings.

On behalf of M, Mr. O’Brien reiterated those points. He further submitted that the hearing on 29th July was due to be the final hearing of the issue as to whether P’s circumstances amounted to a deprivation of liberty. In the event, that hearing could not go ahead because of the local authority’s failure to disclose relevant documents. In his written submissions, he went on to contend that “the events subsequent to that hearing, where records were destroyed and new records compiled, were unquestionably an attempt to prevent proper scrutiny of the care plan … and an attempt to blunt the role of the Court, the Official Solicitor and [M] in that process”. In oral submissions, Mr. O’Brien put it even higher, submitting that it was “almost impossible to imagine a case of more serious misconduct” and that the tampering with the records was “unquestionably an act intended to pervert the course of justice”. The discovery of the tampering of the records led to extra costs being incurred in the investigation of the chain of events. Endorsing Mr. Burrows’ arguments about the local authority’s attitude to the instruction of Miss Whittaker, Mr. O’Brien portrayed the local authority as having to be “dragged kicking and screaming” to a position where it eventually accepted her recommendations, and incorporated them in the final care plan.

In reply, Mr. Allen conceded that, in the circumstances, it would be right for the local authority to bear most the costs incurred as a result of the instruction of Miss Whittaker, including the costs of her reports, her court attendance at the earlier hearing, and some of the addendum work she undertook in dealing with supplemental queries, although not, as I understand his submissions, the cost of her most recent supplemental report. He resisted the application that the local authority should bear any other part of the Respondents’ costs. He submitted that the local authority ensured due process by initiating these proceedings and that it was always sensible for the complex care package to be authorised by the \court. He acknowledged that the local authority realised that there was more work to be done with regard to the policy concerning the use of restraint, but pointed to H’s recent statement as evidence that this issue was being tackled. In all the circumstances, he submitted that the local authority’s conduct was not such as to warrant a costs order.

In my judgment, this is a case where the Court is required to depart from the general rule about costs in proceedings concerning personal welfare, having regard to the conduct and role of the local authority in this case. Whilst I do not, with respect to Mr. O’Brien, agree that it is “almost impossible to imagine a case of more serious misconduct”, I do accept that the misconduct of the local authority’s employees in tampering with the records was serious. The local authority’s failure to disclose some relevant documents, followed by the attempt to interfere with those records, unquestionably lengthened the proceedings. I accept Mr. Allen’s point that a hearing would have been required to enable the Court to scrutinise the care plan, and consider whether the circumstances amounted to a deprivation of liberty. Although the Respondents have “won” on the latter issue, I do not consider it right that costs should follow that event. The issue of deprivation of liberty is a complex issue. The local authority’s decision to contest that issue was not, in my judgment, unreasonable, in particular having regard to the decision of Parker J at first instance in Re MIG and MEG (supra). But overall the proceedings were rendered significantly more complex, time-consuming and costly as a result of the actions of the local authority and its employees. It is impossible to put a precise value on the extra costs incurred, since one can never know exactly how the case would have proceeded but for the local authority’s misconduct, but I am satisfied that a substantial proportion of the overall costs of the proceedings are attributable to that misconduct and its consequences.

In all the circumstances, I consider that a proportionate approach is to order the local authority to pay the following:

Parliament has provided that hearings in the Court of Protection should generally be held in private: Court of Protection Rules rule 90(1). The policy reasons behind this provision were explained by the Lord Chief Justice in Independent News Media v A [2010] EWCA Civ 343, [2010] 1 WLR 2262.

Under rule 91(2), however, the Court has the power to authorise (a) the publication of such information relating to the proceedings as it may specify, or (b) the publication of the text or a summary of the whole or part of a judgment or order made by the Court. Rule 91(3) further provides that, when the Court makes an order under paragraph (2), it may do so on such terms as it thinks fit, and in particular may (a) impose restrictions on the publication of the identity of any party, P, any witness or any other person, (b) prohibit the publication of any information that may lead to any such person being identified, (c) prohibit the further publication of any information relating to the proceedings from such date as the Court may specify, and (d) impose such other restrictions on the publication of information relating to the proceedings as the Court may specify. Rule 93(1) (a) qualifies these powers, however, by providing that an order under, inter alia, rule 91 may be made only where it appears to the Court that there is good reason for making the order.

In Independent News Media v A (supra) at paragraph 11, the Lord Chief Justice observed that “even when good reason appears, before the necessary authorisation can be granted better reasons may lead the court to refuse it. Accordingly the reality is that, provided good reason appears, the court will then assess all the relevant considerations and make a balanced, fact-specific judgment whether the specific authorisation should be granted. In other words, before the court makes an order under [rule 91], a two stage process is required; the first involves deciding whether there is "good reason" to make an order under rule … 91(2) … ; if there is, then the second stage is to decide whether the requisite balancing exercise justifies the making of the order.”

In G v E [2010] EWHC 2042 (Fam), I made an order identifying a local authority in respect of whose conduct towards a vulnerable adult (“E”) I had previously made substantial criticism in an earlier judgment reported as G v E and others [2010] EWHC 621 (COP) [2010] 2 FLR 294. I held that the public interest in identifying the authority, based on principles of openness and public accountability, was truly compelling and manifestly amounted to a “good reason” for making an order under rule 91(2). On the facts of that case, I held that the balance clearly came down in favour of publication. I observed (at paragraph 16) that “it would, of course, be a different matter if there was any significant risk that E and other members of the family might be identified as a result of the naming of the local authority”. On the facts of that case, however, I concluded that no such risk arose.

In this case, it is acknowledged by all parties that the issues decided in the earlier part of this judgment – namely the distinction between a deprivation and a restriction of liberty, and the question whether to make a costs order against the authority – are of sufficient importance to justify authorising the publication of the judgment under rule 91(2)(b). It is further agreed that, when making an order authorising publication, the Court should, pursuant to rule 91(2)(a), impose restrictions on the publication of the identity of P or M. The issue remaining between the parties is whether I should impose restrictions on the publication of the name of the local authority.

It is submitted on behalf of the Official Solicitor and M that the conduct of the local authority’s employees amounts to a “good reason” for identifying the authority. In addition, Mr. O’Brien on behalf of M submits that maintaining confidence in the judicial system governing cases of mental capacity is a legitimate objective of the Court, and that it must follow that, in appropriate cases, public authorities who seek to undermine that objective are identified.

In his submissions in response, Mr. Allen on behalf of the local authority does not deny that there is a “good reason” for revealing the identity of the authority. The focus of the argument in this case is, rather, on the second limb of the two-stage test identified by the Lord Chief Justice in Independent News Media v A (supra). The local authority submits that the “good reason” for publishing its name is outweighed by a greater public interest in preventing the publication of information that may lead to P being identified. The local authority argues that the publication of its name is likely to lead to the identification of P. The Official Solicitor and M demur.

In support of its contention that the naming of the authority may lead to P being identified, the authority has filed a statement from F, the manager of its community living team, that draws together the distinctive features about P and his circumstances as set out earlier in this judgment. He concludes that “it is the authority’s position that, due to the details which have been disclosed in the judgment as presently drafted either being unique to P or characteristic of a very small number of male service users in the [local] area, there is a significant risk that members of the public who see P in the community could identify him. This is a concern for the authority, because of the very sensitive and personal nature of P’s described behaviour …. The authority has a duty to P and his family, in particular his mother … to maintain his right to privacy and confidentiality …. In addition, there is also a risk that staff who have previously supported P …. and are no longer in the employment of the authority may know that the judgment related to P, given the amount of detail contained in the document, and the authority has no control over any actions they may take in relation to making that information public.”

Mr Allen made a series of further submissions on behalf of the authority in a supplemental document filed after the hearing, all of which I have taken into account. Of these, I note in particular his submission that the consequences of identifying P would seriously undermine the privacy, respect and dignity to which he is entitled, and that identifying P may have a detrimental effect on his new support workers, and the service they provide, as well as the other residents at Z House.

In reply, Mr. Burrows summarises the Official Solicitor’s position in these terms. (1) The paramount concern is that P’s identity is not revealed in the judgment. (2) The naming of the local authority in itself is not a matter that affects P’s best interests, provided his anonymity is preserved. (3) Consequently, the Official Solicitor is neutral on the issue - he neither applies for the local authority to be named, but neither does he object. He adds, however that it is unlikely that members of the general public casually observing P in the street will conclude that he is the person mentioned in this judgment. It is possible that some members of the public who have read the judgment may observe that P has some of the features of the person described in the judgment, but it will not be readily apparent whether or not he has all the features so described.

On behalf of M, Mr. O’Brien applies for an order that the authority, and indeed H, be named. He says that M has no desire to see P identified, nor does she believe there is a significant risk P being identified if the local authority and H are named in the judgment. He submits that, in considering the risk of identification, the Court should focus on those features which are unique or sufficiently unusual as to lead inexorably to identification. He submits that there is only one such feature, namely the body suit, which, he points out, will be obscured by other clothing.

In my judgment, the public interest in holding public authorities accountable for the actions of their employees manifestly amounts to a “good reason” for publishing the judgment in an anonymised format but authorising the naming of the local authority in any published report of the judgment. I also endorse the submissions made by Mr. O’Brien that such publication will help to sustain public confidence that the Court of Protection is carrying out its functions in the public interest within the restrictions imposed by Parliament.

On the facts of this case, I think there is little likelihood that naming the local authority will lead to identification of P on a scale that would amount to a significant infringement of his right to respect for privacy, or have detrimental effect on his new support workers or the other residents at Z House. Common sense suggests that it is unlikely that large numbers of the general public will read this judgment in such detail as to be able to identify P if they see him in the street. It is possible that some people may make the link, but I do not think it at all likely that his identity will become known to an extent that creates the risk of harm suggested by Mr. Allen.

I therefore make an order authorising the publication of this judgment on the following terms (1) the local authority may be identified as Cheshire West and Chester Council; (2) neither P nor M may be identified by name; (3) other than this judgment, no further information relating to the proceedings may be published without further order of the Court.

I have considered whether to permit the publication of the names of any employees of the authority, past or present. Whilst I can see prima facie grounds for saying that there is a “good reason” for publishing some of those names (for example, A), I am conscious that none of the employees has been consulted about this point, nor had the opportunity to take advice. I therefore do not at this stage relax the prohibition on the publication of the names of any of the authority’s employees. Any party or organisation who wishes to argue that those persons should be identified must make a further application to the Court.

I add this postscript. I am acutely conscious that, in this case, as in G v E, I have made significant criticisms of local authorities and their employees, and that in each case I have concluded that it is in the public interest that those authorities should be named. I am also acutely aware, as I observed in G v E, that there are thousands of social workers, care support workers, and other professionals who dedicate their lives week in, week out, to caring for people like P who have profound and challenging disabilities. Indeed, I make it clear that those who currently work with P clearly fall into this category. The excellent work of professionals in this field deserves greater public recognition. For my part, I can certainly envisage circumstances in which the high standard of care being provided by a local authority would amount to a good reason to identify that authority in a published judgment.

Subject to any further modifications agreed or proposed by the parties, I shall therefore make an order in the terms of the draft submitted by Mr. Allen, but with the added provisions of the costs order and the order under rule 91(2)(b) and (3) as set out in this judgment. I would be grateful if he could file a perfected version of the order by 4 pm on 13th June 2011.