J Council v GU & Ors (Rev 1)

This is my judgment on the application made by J Council dated 26 April 2010 for declarations and orders pursuant to sections 15 and 16 Mental Capacity Act 2005 in relation to GU, who is now aged 57, and who I shall call in this judgment “George” (although that is not his real forename).

The parties are:

Happily, all parties have agreed a final order which they invite me to approve. I am satisfied that it is a proper order to make and its terms and provisions are fully in the interests of George. However the case has given rise to interesting questions about Article 8 of the European Convention on Human Rights and what the scope of the safeguards should be to ensure compliance with it for the future. I have been exhorted to give a judgment which states unambiguously that the arrangements which I approve are compliant with Article 8. It is said that this judgment is likely to be looked at in any case presenting similar facts.

At a recent directions hearing I stipulated that if the terms of a proposed final order were agreed the applicant, and the third and fourth respondents were to be excused attendance and representation at the final hearing. However the fourth respondent thought it prudent to be represented and I am grateful for the submissions I have received from Ms Giovannetti QC.

George is very seriously challenged. I have the benefit of a comprehensive report from the independent expert consultant psychiatrist Dr Dene Robertson dated 12 November 2010 and his addendum report dated 10 January 2011. These reports are fully endorsed by Dr BR in a witness statement dated 19 November 2012. They tell a sad story. It is not necessary to describe George’s history since childhood. I only need to recount that it is the unambiguous opinion of Dr Robertson, endorsed by Dr BR, that George suffers from a number of separable mental disorders viz childhood autism, obsessive-compulsive disorder, dissocial personality disorder, mixed anxiety disorder and paedophilia. Accordingly Dr Robertson, endorsed by Dr BR, is of the opinion that George lacks capacity to litigate, and lacks the capacity to make decisions concerning his care needs (including where he lives); the medication he should take; the contact he should have with others; and about his finances property and affairs. He is likely to remain incapacitated for a considerable time, to be measured in years, and possibly for the remainder of his life. It is Dr Robertson’s opinion, which is agreed by all, that it is in George’s best interests to remain living in the Y Care Home indefinitely. Moreover he should be subjected to fairly rigorous restrictions in his contact with other people and in his correspondence in order to minimise the risks that he presents.

The reason that these restrictions are necessary is that the psychological disturbance from which George suffers extends, as I have mentioned, to paedophilia. This has manifested itself in compulsive letter writing about his fantasies of sex with children (which letters have sometimes been left in places like the toilets at Tesco); by collecting photographs of children; and in other aspects of sexually deviant behaviour. Obviously, without restrictions, it would not be too difficult for George to leave sexually explicit messages in places where others (including, especially, children) may find them to their distress and harm. For these reasons it is judged necessary that he is from time to time strip-searched; that his correspondence is monitored; and his telephone conversations listened to (not on an extension but by aural physical monitoring of his side of any such conversation).

There is no question but that George has been and will be deprived of his liberty. Under Article 5(1)(e) of the Convention an exception to the right to liberty is the lawful detention of persons of unsound mind. It is agreed by all that the final order requiring George to live at the Y Care Home is not only in his best interests but is a lawful detention squarely within the terms of the exception.

The more problematic question does not concern Article 5, but rather Article 8. As is extremely well-known, Article 8 furnishes the right to respect for a person's private and family life, his home and his correspondence. But it is not an absolute right and it may be curtailed "in accordance with the law" where it is necessary inter alia for the protection of health and morals, or for the protection of the rights and freedoms of others. It is well-established that even people in detention, whether in prison or in mental health institutions, retain nonetheless these rights, at least up to a point - that point being that the exercise of the right obviously cannot have the effect of destroying the purpose and function of the detention in question: see R (P and Q) v Home Secretary [2001] EWCA Civ 1151 at para 78. Thus in the case of imprisonment the right does not extend to allowing prisoners conjugal visits, or to possession of mobile phones, or for that matter single cells. On the other hand it does extend to allowing visits from family and friends, the use of payphones, and the sending and receiving of letters. Thus is the balance struck between the exercise of the right and the purpose and function of imprisonment.

The restrictions on George, which all are agreed are necessary, plainly amount to interferences with his private life. The Strasbourg court has confirmed that this is so in relation to strip searching (Wainwright v UK (2007) 44 EHRR 40); monitoring telephone calls (Liberty v UK (2009) 45 EHRR 1); monitoring correspondence (Herczegfalvy v Austria (1992) 15 EHRR 437); and in restricting contact to others (Nowicka v Poland [2003] 1 FLR 417).

The question here is whether the measures which incorporate the restrictions have a sufficiently authoritative basis, and are sufficiently detailed in the scope of their safeguards (which include aspects such as reviews and oversight by a supervisory body), so as to comply with all of the demands of Article 8.

The first requirement of Article 8 is that the curtailment must be "in accordance with the law". In Herczegfalvy v Austria it was stated that this stipulation captured a number of features. First, the measure in question has to have a basis in national law. Second, the legal measure has to be accessible to the person in question. Third, that person has to be able to “foresee” its consequences - I take that to mean that the consequences of the legal measure have to be predictable. Finally, the measure must be compatible with the rule of law. This latter requirement means that there must be a degree of protection in the national law against arbitrary interferences with the Article 8 rights. Further, if a discretion is vested in a public authority then the scope of that discretion must be clearly signalled and specified.

The requirement of a "basis in national law" does not mean that the measure must be primary or secondary legislation or a binding precedent issued by a court under the common law. It has been given a much more liberal definition. It extends to policy guidance given by public authorities. Indeed it goes even further than that. In R (Munjaz) v Mersey Care NHS Trust [2006] 2 AC 148 the Secretary of State for Health had published a Code of Practice to the Mental Health Act 1983 containing guidance for hospitals on the use of seclusion for detained psychiatric patients. However, the Ashworth Hospital decided to devise a seclusion procedure which departed from the Code of Practice in a number of respects, particularly in the provision of far fewer reviews for long-term secluded patients than was mentioned in the Code. By a majority the House of Lords decided (and the Strasbourg Court later agreed) that this bespoke procedure, at variance with the prescriptions of the Code, was nonetheless "in accordance with the law". This was because the code of guidance had a statutory basis, but because it was only guidance, the Ashworth Hospital was free to depart from that guidance for good reason: its managers were given "a judgmental authority" (para 36). Lord Bingham stated at para 34:

“The procedure adopted by the trust does not permit arbitrary or random decision-making. The rules are accessible, foreseeable and predictable. It cannot be said, in my opinion, that they are not in accordance with or prescribed by law.”

The operative measures here would, if implemented at a high security psychiatric hospital, be the subject of detailed procedures and safeguards prescribed in primary or secondary legislation: see section 134 Mental Health Act 2007 (in relation to correspondence) and directions 6 and 31-32 of the Safety and Security Directions 2011 (Footnote: ¹) (in relation to strip searching and monitoring telephone calls). Plainly those measures have a basis in law.

In contrast (it might be thought surprisingly), there are no equivalent detailed procedures and safeguards stipulated anywhere for persons detained pursuant to orders made under the Mental Capacity Act 2005.

In this case the Official Solicitor has been concerned that the arrangements whereby George has been subjected to the restrictions in question have been insufficiently prescriptive in their content; carried insufficient safeguards; and were neither validated nor overseen by an organ of the state. He has therefore raised a doubt as to whether the arrangements are compliant with Article 8. He is particularly concerned that there should be validation and oversight by a public authority. He is correctly concerned because where a private body wields coercive powers it is exercising functions of a public nature: see YL v Birmingham [2008] 1 AC 95 at para 63. And the state has a duty to exercise supervision and control over private psychiatric institutions: see Storck v Germany (2006) 43 EHRR 6 at para 150.

The Official Solicitor is not seeking any finding of non-compliance in relation to past arrangements and were such a suggestion to be made it would be hotly contested by the Y Care Home. However to put the matter beyond doubt he has proposed, and it has been agreed, that a detailed policy arrangement should be formulated which will be overseen by both the NHS Trust and the CQC. After quite protracted negotiations acceptable terms have been agreed.

The agreed policy arrangement runs to 52 pages and is highly detailed. There are specific detailed separate policies regulating the circumstances in which:

In relation to each separate policy:

The Official Solicitor is satisfied, and submits to me, that these provisions, which will receive the imprimatur of the court, will put beyond doubt any question of (non)-compliance with Article 8. Given that the order will authorise a deprivation of liberty there will have to be, in addition to the reviews in the agreed policies, annual reviews by the court: see BJ v Salford BC [2009] EWHC 3310 (Fam) (Footnote: ²). Ms Dolan, for the NHS Trust, agrees that proposition in relation to the specific facts of this case but cautions against me being drawn into reaching any wider conclusion. Ms Giovannetti QC for the Y Care Home does not agree that these policies are in fact necessary to legitimise the restrictions. Her clients are happy to agree them out of benign concern for George but, she argues, they have no greater legal significance than that.

I agree with Mr Bowen QC. I further agree with him that not every case where there is some interference with Art 8 rights in the context of a deprivation of liberty authorised under the 2005 Act needs to have in place detailed policies with oversight by a public authority. Sometimes, particularly where the issue is one-off (such as authorising an operation), an order from the Court of Protection will suffice and will provide a sufficient basis in law. But where there is going to be a long-term restrictive regime accompanied by invasive monitoring of the kind with which I am concerned, it seems to me that policies overseen by the applicable NHS Trust and the CQC akin to those which have been agreed here are likely to be necessary if serious doubts as to Article 8 compliance are to be avoided.

Of course all this debate would become empty were Parliament or the Executive or the CQC to promulgate rules or guidance to cover the situation which I have here. It is hard to understand why there are detailed statutory provisions relating to personal searches and telephone and correspondence monitoring for high security mental hospitals but none at all for private care homes.

Finally, I would wish to make a point which has nothing to do with any of the above issues. All of the Court documents in this case, including Orders, have the names of the parties anonymised by the use of initials. In the memorable words of Lord Rodger of Earlsferry in re Guardian News and Media Ltd [2010] 2 AC 697 at para 1 the case has become an “alphabet soup”. There is absolutely no reason for this, although for some mysterious reason, which I cannot work out, it has become standard practice. Not only is it very confusing to any reader but it dehumanises the participants. I cannot locate in the Court of Protection Rules a rule equivalent to FPR 2010 rule 29.10 which prohibits the inspection or copying of any document on the court file by a stranger to the proceedings. However by Court of Protection Rules 90 - 91 the general rule is that proceedings shall be heard in private. This means that the court file is, absent an order of the court, similarly closed to strangers. Proceedings in the Family Division and other family courts are equivalently designated as private business but all court documents bear the parties’ actual names. So should court documents in proceedings in the Court of Protection. Of course, a judgment such as this, which is going to be published, will be anonymised, just as is the (usual) case with Family Division judgments. In Independent News and Media Ltd and others v A (by his litigation friend, the Official Solicitor) [2010] EWCA Civ 343, [2010] 1 WLR 2262, [2010] 2 FCR 187, [2010] 2 FLR 1290, Lord Judge CJ at para 11 extolled the merit of “a suitably anonymised publication of the court's judgment” in Court of Protection proceedings. But it would be a false inference to conclude that that judgment tacitly said that all court documents should be anonymised also. I therefore require that in the agreed final order here the parties have their identities restored to them.