North Yorkshire County Council & Anor v MAG & Anor

There are before the court two linked appeals from an order of District Judge Glentworth sitting in the Court of Protection in Leeds on 13 July 2015. The appeals are brought against the refusal of an application brought by North Yorkshire County Council (“NYCC”) for authorisation for the deprivation of liberty of a man (“MAG”) at the home where he has lived since 2006. The judgment supporting the order under appeal is reported as North Yorkshire County Council v MAG, GC and A Clinical Commissioning Group [2015] EWCOP 64.

On 31 July 2015 NYCC issued an application for permission to appeal accompanied by a Notice of Appeal; a similar application and Notice of Appeal was soon thereafter issued by A Clinical Commissioning Group (“ACCG”) (3 August 2015). The two public bodies make common cause, and have run complementary cases. The applications for permission to appeal, and the proposed appeals, are opposed by the Official Solicitor acting on MAG’s behalf. GC, mother of the subject of these proceedings, has made no formal statement in relation to the appeals, and was not present at the hearing. The hearing before me (listed pursuant to rule 172(6) COP Rules 2007) on 1 December was set up by HHJ Moir, as a combined hearing of the applications for permission to appeal, with appeals to follow. I indicated at the outset of the hearing that I would hear full argument from the parties on the applications and appeals. I am indebted to counsel for the clear and effective presentation of their arguments. I granted permission to the Official Solicitor to rely on matters set out in the full written argument of Ms Weereratne QC notwithstanding that there had not been full compliance with the rules (rules 176(3)/(4) and 179(5) COP Rules 2007).

At the end of the hearing, I reserved judgment.

This appeal concerns MAG, who was born on 2 November 1980; he is therefore now 35 years old. As a result of perinatal trauma, he suffers from autism, ataxic cerebral palsy, hearing and visual impairments and a learning disability. He has a complex presentation, which includes behaviour which poses a risk to himself and others. Proceedings in the Court of Protection were issued by NYCC on 7 September 2011, by which (as DJ Glentworth’s judgment records), NYCC sought declarations that MAG lacks capacity to:

There has been, and is currently, no dispute in this case that MAG lacks capacity to conduct these proceedings and make the decisions in question, and final declarations to that effect have already been made (22 January 2013). The key issue before the court which led to the order under appeal concerned MAG’s deprivation of liberty which was and is inextricably linked with his place of residence and care package (see [7] below).

MAG has lived in his current home since 2006. NYCC is responsible for meeting MAG’s accommodation needs, which are in part (25%) funded by them, but largely (75%) funded by ACCG. The property is a one-bedroom ground floor flat, which is too small to accommodate the use of a wheelchair; there is no scope for sleeping night staff. MAG has a support team of 11 workers and up to 4 workers are involved in his care each day. He is able to access the community on a daily basis but there is no outside space which he can use at the property; the property is in a town centre, and MAG derives pleasure from sitting at his window watching the world go by. DJ Glentworth summarised (at §7) MAG’s use of his home as follows:

“MAG cannot stand independently and when he is at home in his ground-floor flat he mobilises by crawling and pulling himself along the floor and up on to chairs and his bed. He uses a wheelchair outdoors and is secured when in it by the use of a Crelling (Houdini) harness which serves as a protection for him and others. He is unable to use his wheelchair indoors because there is insufficient room to enable him to manoeuvre it. He has 1:1 support at all times and 2:1 support in the community save for those times when an experienced and willing member of his care team takes him out in his wheelchair. Since December 2011 he has received 35 hours of 2:1 support each week (increased from 28 hours). At all other times he remains in his flat.”

Adding at §20:

“The corridor leading from the bedroom to the lounge and kitchen is too narrow to move a wheelchair into those rooms. He moves around the flat on his bottom and using his hands and knees. This has resulted in him sustaining painful bursitis in both knees and he has calluses to his knees and ankles. Ms Hutchinson [Registered Nurse Learning Disability] advised that MAG's current property does not meet his needs and that he should be able to live in a property which ensures he can live a life with dignity and comfort and which does not cause him physical or emotional harm”.

And at §30:

“I note that when MAG was at the residential care home whilst his property was refurbished he mobilised within the care home using his wheelchair. I am not satisfied that, if he had the option of using his wheelchair within his home, he would choose not to use it. In his present accommodation he is deprived even of that option”.

Within the care regime in place, MAG is deprived of his liberty in his home in the following material respects:

It is common ground that since early 2013 NYCC has been searching for alternative accommodation for MAG; a dispute arises in this case between the public authorities and the Official Solicitor as to the vigour and timeliness with which the authority has been engaging in that pursuit. Within the hearing before DJ Glentworth, it was accepted that it would be in MAG's best interests to move to a less restrictive property which meets the following criteria: the property should:

The hearing before DJ Glentworth took place on 6 March 2015; the Judge had visited MAG in his home on 20 February 2015. At the hearing, oral evidence was given by NYCC’s social worker (Ms FC), NYCC’s specialist in autism (Ms AT), the service manager from the social care providers (Ms MB), and Christine Hutchinson, Registered Nurse Learning Disability. The court had a report from Dr. Lisa Rippon, Consultant Developmental Psychiatrist, prepared on the joint instructions of the parties; Dr. Rippon was not called to give evidence. Submissions followed after the hearing on 6 March and judgment was reserved, at least in part to await the outcome of the appeal in Re MN (Adult) [2015] EWCA Civ 411. The Court of Appeal handed down judgment in Re MN (above) on 7 May 2015. Judgment in this case was delivered on 13 July 2015.

DJ Glentworth’s judgment opens with a recital of the essential background facts before she identifies the engagement of the Human Rights Act 1998 in the case (at §13) indicating, accurately, that:

“There is no dispute between the parties that by section 6(1) of the Human Rights Act 1998 (HRA) it is unlawful for a public authority to act in a way which is incompatible with a Convention right. It is agreed that MAG is deprived of his liberty for the purposes of Article 5(1) ECHR. That deprivation of liberty is only lawful if authorised by the court under sections 4A and 16(2) MCA and without that authority, there will be a breach of Article 5. The decision in Re X [2014] EWCOP 25 para 14 confirmed that compliance with the three requirements set out in Winterwerp v. Netherlands (1979) 2 EHRR 387 (the Winterwerp requirements) is essential to ensure compliance with Article 5 and mean:

i)

that there must be medical evidence establishing unsoundness of mind;

ii)

of a kind which warrants the proposed measures; and

iii)

which is persisting at the time when the decision is taken.

Where a person is deprived of his liberty, Article 5(4) means that periodic reviews at reasonable intervals of not more than a year are appropriate, unless the circumstances require a shorter period before a review. There is also a right to request a speedy review at an oral hearing”.

I pause there to observe that the judge’s reference to Re X in the passage above is to the first instance decision of Sir James Munby P, which in the period between the hearing before DJ Glentworth and her judgment was overturned on appeal (see [2015] EWCA Civ 599 [16 June 2015]); however, the central importance of Winterwerp was not questioned by the Court of Appeal (see [2015] EWCA Civ 599 at [87]).

The judge went on to identify the issues for determination (at §14) namely:

The judge reviewed in brief the arguments of the parties. She rightly summarised the case run by NYCC (at §22):

“NYCC accepts that the current placement involves a deprivation of liberty and that there is no immediate alternative residential option. It seeks the authorisation of the court for MAG's continued deprivation of liberty on the basis that it is justified as a result of his condition which renders the restrictions proportionate and necessary”.

She turned to the arguments advanced by ACCG (at §26) recording their case that:

“To refuse to authorise the deprivation of liberty, given that there is no alternative, would require clear evidence that the placement is breaching MAG's Article 5 rights and requires something more than evidence simply of an imperfect placement. It is submitted that when looking at the bigger picture, including MAG's current staff and the wider community there is not the evidence to support the allegation advanced by the Official Solicitor that the current placement breaches MAG's Article 5 rights”.

In summarising the case for the Official Solicitor, the judge made a number of specific adverse findings against NYCC (see §36), including a finding that NYCC had been guilty of culpable delay in finding a less restrictive property for MAG. The judge later found (at §39) that NYCC’s failure “in its attitude towards the search for less restrictive accommodation” had caused significant delay and lengthened these proceedings. The judge referred to the Official Solicitor’s stance on the type/quality of MAG’s property as imposing a “disproportionate deprivation of liberty in this case” (§33). The judge then went on to set out her conclusions (at §41 and §42) as follows:

Ҥ41: I consider that I cannot endorse a care regime which risks breaching MAG's right to liberty. This may be all that is available at present but I am not satisfied that NYCC has taken the steps necessary to ensure that there is no breach of its obligations. I am aware of the steps which have been taken recently. However, MAG's needs were identified by the assessment in 2006. It is clear that the Tenancy does not meet those needs and that should have been clear when the property was identified by GC in 2006. In 2013 the Commissioners accepted a move would be in MAG's best interests and would be less restrictive. This is a question of MAG's liberty and I do not accept that I can authorise the deprivation of that liberty on the basis that nothing else is available. He has been in this unsatisfactory situation for a prolonged period. NYCC has been extremely slow to accept its responsibilities in relation to re-housing him. These proceedings started in 2011 and it was not until 2 August 2013 that it accepted it owed a duty in this respect.

§42: Refusing the authorisation sought means that NYCC must take the steps necessary to ensure that there is no breach. In all the circumstances, I am not satisfied that I should make the declaration sought by the local authority and I will not authorise the deprivation of liberty in its current form”.

NYCC applied for a stay of the order, and for interim authorisation for the deprivation of MAG’s liberty, which were refused.

At the hearing at which the judgment was formally handed down, counsel for NYCC and ACCG appropriately (and correspondent with the duties on them advocated in Re B (Appeal: Lack of Reasons) [2003] EWCA Civ 881, [2003] 2 FLR 1035, and [19] in English v Emery Reimbold & Strick Ltd & others [2002] EWCA Civ 605), sought clarification from the judge of a number of passages which (they argued) required elaboration. The judge dealt with these requests at the hearing and gave oral rulings; the transcript of those rulings is before me, and relevant passages are quoted below.

NYCC raises three principal Grounds of Appeal, which are as follows:

NYCC further complains that the judge erred in refusing to extend the interim authorisation pending determination of the application for permission to appeal.

In a detailed skeleton argument, augmented by measured and careful submissions, Mr Stonor QC and Ms Thomas sought to dismantle the judge’s reasoning in rejecting this application, identifying that early indicators of her flawed approach (which was to lead to the erroneous decision under appeal) could be identified as long ago as April 2012.

Ms Morris QC and Mr Maxwell-Stewart, on behalf of ACCG, adopt the Grounds of Appeal advanced by NYCC (above). The ACCG further contends (I summarise the arguments) that:

ACCG further submitted that the judge had been wrong to make findings against NYCC when these had not been particularised at the outset of the case so that NYCC had no proper chance to respond (see Re MN at [93] and Charles J at A Local Authority v PB and P [2011] EWHC 502 (COP), [2011] COPLR Con Vol 166, paras 31-33).

The Official Solicitor invites me to dismiss the appeal, and uphold the order of DJ Glentworth. Detailed written and oral submissions were presented to the court by Ms Weereratne QC and Mr Allen; in summary, they contended that:

I pause here to observe that the case had not been pitched in the same way by the Official Solicitor at the hearing before DJ Glentworth as it was before me; in his witness statement to the Court, the Official Solicitor had explicitly supported:

“… an interim declaration that it is in [MAG]’s best interests to reside at [the property] pending the identification of a suitable placement for him”.

This position was confirmed by Mr Allen, counsel, in his position statement (5 March 2015) in which he said:

“there is only one immediate option that [MAG] could consider if he had capacity: to remain [at his property]. If the current bid for the alternative property is accepted, there will be two options … In the absence of any alternative, the court has no option other than to decide that it is in [MAG]’s best interests to reside in his current property … the court is invited to make an interim decision in this regard as another option is reasonably foreseeable.” (emphasis by underlining added).

At the opening of the hearing, he orally submitted to the court:

“… as of today, it must be in his interests to be there [i.e. at his current property]; there is no alternative. You will have seen from the evidence that a number of bids have been placed for alternatives in recent weeks and we understand that as of yet there is no alternative, but it may well be that we will be coming back to court in due course as and when an alternative becomes available because then the court will have to decide whether it is best for him to move. But we would submit that the evidence you need to hear today is directly relevant to the deprivation of liberty issue; whether this flat is in essence and the restrictions that it imposes upon him are necessary and proportionate, because only if they are should this court give the public authorities the authority that they need to comply with Article 5.” (emphasis by underlining added).

It is notable that in neither the Official Solicitor’s witness statement, nor in the position statement on his behalf, was it indicated that the Official Solicitor would be inviting the court to decline the authorisation of the deprivation of liberty.

I have had little difficulty in reaching the conclusion that the applications for permission should be granted and the appeals allowed. In deference to the undoubted experience of the judge below, and the skill and quality of the arguments before me, I consider that I should explain my reasoning fully. This appears to be a case in which DJ Glentworth uncharacteristically appears to have allowed her understandable concern about MAG’s living circumstances, and her palpable frustration at what she saw as NYCC’s tardiness in resolving his accommodation issues, to distract her from following a clear path to outcome. The result is one which I consider is unsupportable, and wrong. Picking six key themes from the arguments, I divide my discussion of the judgment into the following sub-headings:

The judge identified the questions to be asked in this case (at §14 of her judgment see [11] above); these questions had been formulated by counsel for the Official Solicitor and set out in his position statement for the hearing. The questions as crafted by counsel had the potential to send the judge off course, and regrettably I believe did so. All substantive decisions in the Court of Protection are governed by the best interests test, and yet the judge did not pose such a question for herself. She went straight to consider “whether the elements of the care package which involve a deprivation of liberty are lawful”. In my judgment, there was a need to break her decision-making down into two separate questions which required consideration in this case, namely:

It appears that in answering her single question the judge may have avoided consideration of MAG’s best interests altogether, and conflated the issues arising in relation to deprivation of liberty raised by the separate questions, causing confusion and leading her to reach the wrong conclusion. Had she asked herself the questions posed in [23] above, she would, I apprehend, have answered the first question in the affirmative, and the second in the negative. She would accordingly have gone on to grant the authorisation.

In reaching this view, it is important to recall that no party disagreed at the hearing before the judge that it was in MAG’s best interests to reside in his property at that time (see, for example, the Official Solicitor’s, and his counsel’s, comments at [21] above). There was evidence that he was happy there; the judge conceded that the placement had its positives, as she made clear in her supplemental judgment on 13 July 2015, §10 (“the fact that there are positives in relation to the existing accommodation is a factor to be taken into account”). The deprivation of liberty arising on the implementation of the care package for MAG is a necessary consequence of the least restrictive available option which best promotes his needs (see also [72] of Re NRA & Others [2015] EWCOP 59).

On the second question, the judge would be required to consider the particular type of accommodation in which MAG is/was deprived of his liberty, and the purpose of the detention. Neither MAG’s property, nor the manner in which his care package was delivered (imposing the deprivations of liberty identified in [7] above) was so unsuitable as to be unlawful; there was no breach of MAG’s rights under the ECHR, and, significantly, the judge did not find one. In reviewing the judge’s decision, I have had the advantage (not available to DJ Glentworth) of the recent decision of the Court of Appeal in R(Idira) v Secretary of State for the Home Department [2015] EWCA Civ 1187, which was handed down only shortly before this appeal hearing. The judgment of the Master of the Rolls contains a valuable summary of relevant Strasbourg jurisprudence from [17] to [29], from which I highlight three of the cases discussed:

It follows from what I have discussed above, that the second question would have to have been answered in the negative, and the application for authorisation would therefore have been granted.

The parties and the Court sensibly agreed to defer the decision in this case until the outcome of the appeal in Re MN. Re MN was an appeal from the decision of Eleanor King J (as she then was) in ACCG and another v MN and others [2013] EWHC 3859 (COP), [2014] COPLR 11; the issue in the case was one of contact between P and his parents. Eleanor King J concluded that the court should not embark upon a best interests’ analysis of contact at the parents' house when the prospect of this was only a hypothetical possibility; the court should only concern itself with available options. The issue for the Court of Appeal raised:

“…fundamental questions as to the nature of the Court of Protection's jurisdiction and, in particular, the approach it should adopt when a care provider is unwilling to provide, or to fund, the care sought, whether by the patient or, as here, by the patient's family” ([9]).

Given that, at the hearing before DJ Glentworth, NYCC was not presenting any real alternative to the continuation of care at MAG’s property, the answers to the “fundamental questions” were plainly relevant to the extent and/or exercise of the judge’s jurisdiction.

In delivering the lead judgment of the Court of Appeal in Re MN, Sir James Munby P conducts a thorough examination of the case law relevant to the exercise of powers by the courts in relation to matters which are either imposed and/or conferred upon public bodies by statutory code; he starts, unsurprisingly, with the classic statements of the House of Lords in A v Liverpool City Council [1982] AC 363. His important conclusions read as follows (Re MN [80]):

“The function of the Court of Protection is to take, on behalf of adults who lack capacity, the decisions which, if they had capacity, they would take themselves. The Court of Protection 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 a private individual or a public authority, than the adult if he had capacity would be able to obtain himself. The A v Liverpool principle applies as much to the Court of Protection as it applies to the family court or the Family Division. The analyses in A v A Health Authority and in Holmes-Moorhouse likewise apply as much in the Court of Protection as in the family court or the Family Division. The Court of Protection is thus confined to choosing between available options, including those which there is good reason to believe will be forthcoming in the foreseeable future”. (emphasis by underlining added).

The “A v Liverpool principle” referred to by Sir James Munby P in the passage above is set out in the Re MN judgment thus:

“The High Court cannot exercise its powers, however wide they may be, so as to intervene on the merits in an area of concern entrusted by Parliament to another public authority. It matters not that the chosen public authority is one which acts administratively whereas the court, if seized by the same matter, would act judicially. If Parliament in an area of concern defined by statute (the area in this case being the care of children in need or trouble) prefers power to be exercised administratively instead of judicially, so be it. The courts must be careful in that area to avoid assuming a supervisory role or reviewing power over the merits of decisions taken administratively by the selected public authority” (passage set out in Re MN at [11]).

The “analysis” of A v A Health Authority and Another; In Re J (A Child); R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, para 53 (also referred to in the passage cited at [29] above) is also set out in Re MN at [15] as follows:

“It is clear that the court exercising its powers under the inherent jurisdiction cannot compel an unwilling private organisation or other outside party to provide a ward of court with education: In re C (A Minor) (Wardship: Jurisdiction) [1991] 2 FLR 168 (independent school refusing to admit ward of court). The position must be the same in relation to the provision of other services or facilities, for example accommodation. In my judgment the court exercising its private law powers under the inherent jurisdiction can no more compel an unwilling public authority than it can a private organisation or other outside party to provide care and attention to a child (even if the child is a ward of court) or to an incompetent adult. If it is to be said that a public authority is in some different position because it is a public authority then the answer in principle must surely be that this raises matters of public law to be determined, if not in public law proceedings, then at the very least by reference to the principles of substantive public law” (emphasis in original).

The “analysis” of Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] UKHL 7, [2009] 1 WLR refers to the speeches of Lord Hoffman at [8]:

“The court's decisions as to what would be in the interests of the welfare of the children must be taken in the light of circumstances as they are or may reasonably be expected to be”.

And of Baroness Hale in the same case (Holmes-Moorhouse) at [38]:

“Family courts have no power to conjure up resources where none exist. Nor can they order local authorities or other public agencies to provide particular services unless there is a specific power to do so … The courts cannot even do this in care proceedings … A fortiori they cannot do this in private law proceedings between the parents. No doubt all family courts have from time to time tried to persuade local authorities to act in what we consider to be the best interests of the children whose welfare is for us the paramount consideration. But we have no power to order them to do so. Nor, in my view, should we make orders which will be unworkable unless they do. It is different, of course, if we have good reason to believe that the necessary resources will be forthcoming in the foreseeable future. The court can always ask the local authority for information about this”.

Following on from the passage at [29] above, Sir James Munby P continued in Re MN at [81]:

“The Court of Protection, like the family court and the Family Division, can explore the care plan being put forward by a public authority and, where appropriate, require the authority to go away and think again. Rigorous probing, searching questions and persuasion are permissible; pressure is not. And in the final analysis the Court of Protection cannot compel a public authority to agree to a care plan which the authority is unwilling to implement. I agree with the point Eleanor King J made in her judgment (para 57):

"In my judgment, such discussions and judicial encouragement for flexibility and negotiation in respect of a care package are actively to be encouraged. Such negotiations are however a far cry from the court embarking on a 'best interests' trial with a view to determining whether or not an option which has been said by care provider (in the exercise of their statutory duties) not to be available, is nevertheless in the patient's best interest."

At [82], Sir James Munby P elaborated on the reasoning for this approach:

The Court of Appeal firmly endorsed the approach taken (and conclusion reached) by Eleanor King J and dismissed the appeal.

In the instant case, DJ Glentworth judge rehearsed at §24 (and to a limited extent §25) a reasonable summary of the key principles to emerge from Re MN, as they had been distilled and presented to her on behalf of ACCG. She purported to rely on the decision, however, in only one short passage in her judgment, at §28, when reviewing the Official Solicitor’s arguments:

“The Official Solicitor makes the point that the reference in Re MN to the ability of the Court of Protection to explore the care plan put forward by a public authority and the inability of the Court to compel a public authority to agree to a care plan which it is not willing to implement does not apply when the issue is the right to liberty under Article 5. I accept that analysis”.

The judge’s acceptance of the Official Solicitor’s submission (not, in my view, containing any ‘analysis’ as such) is as surprising as it is unexplained. In the circumstances (as indicated above [14]), following the hand-down of the judgment, Ms Thomas (junior counsel for NYCC) invited DJ Glentworth to explain further why she accepted the Official Solicitor’s “analysis” in the above section. In expanding on her response on 13 July , DJ Glentworth said this:

“Re MN was concerned with a welfare application and decisions which neither engaged Article 5 of the ECHR, nor any application under section 21A of the MCA 2005. Re MN was a decision which engaged Article 8 rights within the context of contact. …. The engagement of those Article 8 rights is different from the question of deprivation of liberty. The question of a person’s deprivation of liberty and the circumstances in which a person is deprived of their liberty must impose on the court a duty to consider very carefully whether the deprivation of liberty is proportionate and therefore in the protected party’s best interests. It must therefore, before making the decision, consider whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedoms of action in accordance with section 1(6) of the MCA 2005.”

The passage quoted in full above from the supplementary judgment does not, in my view, explain paragraph §28 of the principal judgment. DJ Glentworth sought to make a distinction between welfare decisions (as in Re MN) and decisions involving deprivation of liberty (as here), but I find her reasoning unconvincing. She identifies no passage in the judgment in Re MN which purports to limit its scope, nor does she identify any proper basis for asserting that the guidance in Re MN as to the limits of the Court of Protection’s role is irrelevant where Article 5 is engaged. Her reasoning and conclusion is the more surprising given that deprivation of liberty issues which arise in these circumstances (under section 4A(4) and section 16(2)(a) of the MCA 2005)arise specifically in the context of the court’s consideration of welfare and proportionality which in turn specifically engage the fundamental principles confirmed and discussed at length in Re MN (see also Charles J in Re NRA & Others (above: [25]) at [41(i)]: “the determinative test on an application for a welfare order to authorise a deprivation of liberty is a best interests test”). If there is any doubt (which in my view there is not) it is useful, as Ms Morris argued, to check this against the directly analogous situation if MAG had been resident in residential care. In such circumstances, NYCC would have had to apply for standard authorisation under Schedule A1 of the MCA 2005; standard authorisation would have to be in P’s best interests (para.12 and 16(3)), and a “proportionate response” to the likelihood of “the relevant person suffering harm and the seriousness of that harm” (para.16(5) of Schedule A1 of the MCA 2005). Ms Morris makes good her submission that the requirement of proportionality must similarly apply to a determination under section 4A and section 16 and that Re MN applies across all welfare determinations, including those which involve deprivation of liberty.

If there were any legitimate challenge on public law grounds to the actions of NYCC, Miss Morris further contended that proportionality would be directly relevant, and a proportionate response would be one (a) whose objective justifies the limitation imposed, (b) is the least restrictive alternative and (c) strikes a fair balance between (for instance) the individual and the state. When assessing whether a fair balance has been struck, the court should afford the decision-maker a margin of appreciation, and its role is therefore confined to that of carrying out a review of that decision (see R(Daly) v Secretary of State for the Home Department [2001] UKHL 26, [2001] 2 AC 532 at [27], and R(P) v Mersey Care NHS Trust [2003] EWHC 994 (Admin)). She further argued that a court should afford a margin of appreciation to a public authority charged with making decisions about the allocation of its limited resources, as to which those who lack capacity have no greater claim simply by virtue of that lack of capacity (see Re MN at [46]: “the public authority, as with the authorities involved in the present case, will have to have regard to the interests of a very wide group of service users who are, in the nature of things, competing with each other for the allocation of often scarce resources”). Insofar as DJ Glentworth sought to apply public law principles in her determination, her judgment contains no reference to the margin of appreciation to which NYCC was entitled. In fairness, I am not sure that she was addressed on the point.

Ms Weereratne QC and Mr Allen contended, with unarguable authority, that the court could not endorse a care plan which would involve or create breaches of ECHR rights. They submitted that the Court of Appeal’s decision of Re MN has no place in this case, given that there was such a fundamental problem with the only ‘option’ before the court (i.e. the accommodation and care package breached MAG’s human rights, and was therefore unlawful). They relied on the decision of Munby J (as he then was) in Re MM; Local Authority X v MM (By the Official Solicitor) and KM [2007] EWHC 2003 (Fam), [2009] 1 FLR 443, specifically drawing my attention to the concluding sentence of [166] in that case:

“the court is required to act in the best interests of the vulnerable adult and must not – is forbidden by s 6 of the Human Rights Act 1998 to – endorse a plan which in its view involves a breach of Art 8.” (emphasis by underlining added).

They rightly drew to my attention that this decision was cited with approval in Re MN, in which, it is interesting to note, Munby P added these remarks (Re MN [43]):

“I directed [in Re MM] (para 167) that the local authority was to file a care plan and evidence in support setting out its final proposals and directed that the matter was to be restored for further consideration of the care plan.

It will be noted that I did not assert, and I do not assert, any right in the court to compel a local authority to accept the plan which commends itself to the court. If there is an impasse, then the court must select the lesser of the two evils: in a case like MM, endorsing the local authority's plan or dismissing the proceedings.”

Ms Weereratne’s argument would really only achieve traction in this appeal if I were to conclude that MAG’s accommodation, and the plan for his care, breached his human rights and was inherently unlawful. I turn to this next.

Section 64(5) of the MCA 2005 specifically provides that under the Act, “references to a deprivation of a person’s liberty have the same meaning as in Article 5(1) of the Human Rights Convention.” Article 5 protects the “right to liberty and security of person”, and prescribes that “[n]o one shall be deprived of his liberty” save in a number of defined cases including (per Article 5(1)(e))“the lawful detention … of persons of unsound mind”, and only then in accordance with a procedure prescribed by law. Article 5(4) establishes the right of a detained person to speedy access to a court which can order his release if his detention is not lawful. In cases of this kind, compliance with the three Winterwerp (Winterwerp v Netherlands (1979) 2 EHRR 387) requirements is essential to ensure compliance with Article 5, namely: (i) medical evidence establishing unsoundness of mind, (ii) of a kind warranting the proposed measures and (iii) persisting at the time when the decision is taken. There is no challenge to the application of the Winterwerp criteria here.

Ms Weereratne argued that the judge was essentially bound to refuse the authorisation of deprivation of liberty as the circumstances in which MAG lived and the conditions in MAG’s home, rendered the current and proposed deprivation of liberty in breach of Article 5. She relied on the ECHR decision of Saadi (above). She did not assert that there had been bad faith on the part of NYCC or ACCG (Saadi at [69]), nor did she contend that the detention was not in furtherance of one of the purposes of Article 5; she did nonetheless contend that “the place and conditions of detention should be appropriate” having regard to the purpose for which MAG was being detained and, she argued, they were not. In this regard (per R ( Idira) v Secretary of State for the Home Department [2015] EWCA Civ 1187) she contended that there should be a “broad evaluation” of the appropriateness of the detention in all the circumstances of the case.

Notwithstanding the force with which the point was argued, I reject it for the following reasons:

I take this point shortly, returning under this heading, to the first two sentences of Re MN at [80] (set out at [29] above, and repeated here for ease of reference):

“The function of the Court of Protection is to take, on behalf of adults who lack capacity, the decisions which, if they had capacity, they would take themselves. The Court of Protection 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 a private individual or a public authority, than the adult if he had capacity would be able to obtain himself.”

By DJ Glentworth’s conclusions, and specifically by her direction that NYCC “must take the steps necessary to ensure that there is no breach” of statute, she sought to do that on MAG’s behalf which MAG, if he had capacity, would not himself have been able to achieve in the absence of some public law remedy. Like MAG, the Court of Protection is confined to choosing between available options: see [61] of Charles J’s judgment in Re NRA & others (above: [25]) and [18] of Lady Hale’s judgment in Aintree University Hospitals NHS Trust v James [2013] UKSC 67, [2014] AC 591.

This is not to say that MAG may not have had public law remedies, which could be pursued in a different forum, but in my judgment MAG would not be able to demand within this context an alternative home, resources or facilities from NYCC in the way attempted by the judge, if he had capacity. The judge was, I consider, wrong to seek to do otherwise.

The judge explicitly recognised that the current property was all that was on offer (“[t]his may be all that is available at present”); in refusing to authorise the deprivation of liberty at this property, she was clearly looking beyond the available option(s). The judge contemplated (indeed intended) that by refusing the authorisation NYCC would have to take urgent action to locate and provide alternative accommodation for MAG (“NYCC must take the steps necessary to ensure that there is no breach”); this, in my judgment, was the essential purpose which drove the judge’s conclusion in this case but it placed wholly unjustified pressure on NYCC as a public authority. As Mr Stonor observed, the import of the judge’s decision was that NYCC must move MAG from his home (where he has been for 9 years) forthwith. A hurried move would have in fact been wholly contrary to the expert advice before the court, which was to the effect that any house-move for MAG would have to be done slowly and carefully; this would be a project with a long-term goal (as Ms Weereratne reminded me in her submissions) requiring a “lengthy and detailed piece of work” – per Christine Hutchinson. In adopting the line she did, the judge wrongly overlooked this evidence and placed NYCC under the sort of “impermissible pressure” which the President deprecated in Re MN at [82] (see [33](iv) above), the effect of which could have been detrimental to MAG.

I am unpersuaded by Ms Weereratne’s argument that Article 5 imposed a positive obligation on this local authority in these circumstances, urgently to locate an alternative home (and possibly care provider/package) for MAG. Ms Weereratne drew my attention to Re A & C [2010] 2 FLR 1363, [2010] EWHC 978 at [95], in which Munby J (as he then was) spoke of an authority’s multiple duties (i) to investigate, (ii) to continue to monitor, (iii) to take reasonable and proportionate measures to avoid deprivation of liberty, (iv) to bring any deprivation of liberty to an end, (v) to seek the assistance of the court in determining whether there is, in fact, a deprivation of liberty and, if there is, (vi) obtaining authorisation for its continuance. These duties do not extend as far as Ms Weereratne would like them to go; indeed Munby J added at [96]:

“… this is a key message, whatever the positive obligations of a local authority under Article 5 may be, they do not clothe it with any power to regulate, control, compel, restrain, confine or coerce. A local authority which seeks to do so must either point to specific statutory authority for what it is doing – and, as I have pointed out, such statutory powers are, by and large, lacking in cases such as this – or obtain the appropriate sanction of the court.”

In this instance, for reasons outlined above, I do not consider that there has been a breach of Article 5, nor does the evidence come close to proving it.

As I indicated above, DJ Glentworth made a number of critical findings against NYCC (at §36 of her judgment: see [12] above). While these may have been, or be, relevant to a public law claim, these findings do not in my judgment materially or directly affect the issue of deprivation of MAG’s liberty. On my review of the material, it is reasonable to conclude that she was encouraged to take this path by the Official Solicitor. Mr Allen in his position statement (5 March 2015) referred to the potential for using the hearing “to determine factual issues”, adding:

“Any human rights claim must of course be brought in accordance with COPR r.83 and Practice Direction 11A. The merits of such a claim will depend upon the factual findings made at this hearing.”

Ms Thomas (for NYCC) raised her concern at the outset of the hearing on 6 March about the Official Solicitor’s intended use of the hearing; in reply Mr Allen said:

“To suggest that this hearing is a springboard to a future Human Rights claim is putting the matter a little bit high … the Official Solicitor cannot form a view as to the merits or otherwise of any potential Human Rights claim unless and until the factual matters have been adjudicated on, and that really, we would submit, is what the whole purpose of today is.” (emphasis by underlining added).

The transcript of the hearing goes on to reveal that the judge correctly directed herself to the inappropriateness of conducting a factual inquiry of the type proposed by the Official Solicitor, because:

Regrettably, the findings set out in the judgment reveal that the judge then did what she had counselled herself against doing. I find that the conclusions, and the route by which they were reached, were essentially unfair and unsupportable for three principal reasons:

In the circumstances of this case, the factual inquiry (if that is what it was) into NYCC’s conduct in relation to searching for alternative accommodation for MAG exceeded her function at this hearing on these issues (see [82] Re MN), and was (for the reasons set out in [52] above) essentially unfair.

The Official Solicitor floated before the court in December 2014 and again in the position statement dated 5 March 2015 that the circumstances in which MAG lived risked violation of his rights under Article 3 of the ECHR; this right protects a person from “torture or to inhuman or degrading treatment or punishment”. Given that the Official Solicitor was otherwise supporting the interim placement of MAG at the home, I find this submission surprising.

There was in reality no evidence of torture in this case, nor of inhuman treatment of MAG; no party suggested that there had ever been any degrading treatment either generally, or as Sullivan J (as he then was) suggested in R(Bernard) v LB Enfield [2002] EWHC 2282 (Admin), [2003] HRLR 111, (having considered Peers v Greece [2001] 33 EHRR 51 and Price v United Kingdom [2002] 34 EHRR 53 at [24] and [28]) with an intent to humiliate. Sullivan J considered indeed that the intention to humiliate is an important ingredient in the proof of degrading treatment:

“… in deciding whether treatment is "degrading" within the meaning of Article 3, the court will have regard to whether its object is to humiliate and debase the person concerned. But the absence of any such purpose "cannot conclusively rule out a finding of violation of Article 3:" see paragraph 74 of Peers”.

The threatened argument under Article 3 does not seem to have been pursued at the hearing, either vigorously or at all. And rightly so. To have raised it at all was I consider inflammatory and unhelpful; no doubt it escalated tensions in the litigation, and could have prolonged it. Of greater concern to me is that such a suggestion would doubtless have been deeply offensive to the conscientious care staff offering, in the view of the jointly instructed experts, good quality of care to MAG; Ms Hutchinson had, for example, told the judge:

“the work that [the care group] have done has increased his day-to-day activities and … the consistency of staffing and the staffing approach has had an impact – a very positive effect on him”.

There is an understandably high threshold for proof of breach of Article 3. This was not an Article 3 case; it is highly regrettable that it was raised (and repeated) in this litigation.

In Re MN Sir James Munby P at [100] spoke of the ‘depressingly long’ duration of those proceedings; they had commenced in August 2011, coincidentally only 13 days before the proceedings concerning MAG were launched (7 September 2011). In Re MN, the hearing of the key issue took place in 2013; in the instant proceedings the key hearing only took place in March 2015. These proceedings (concerning MAG) are now in their fifth year following 12 directions and similar hearings. What lies behind this delay is difficult to determine; all parties who have volunteered a view have unsurprisingly diverted responsibility away from themselves. Whatever the reason, these proceedings have been ongoing for far too long and I suspect that they could have been concluded within a fraction of the time and the current estimated combined costs of more than £230,000.

As the judgment of Sir James Munby P in Re MN makes clear, steps are currently being taken to improve case management efficiency of the Court of Protection; at paragraph [100], he draws comparison with the six-month time limit applicable in care proceedings by virtue of section 32(1)(a)(ii) of the Children Act 1989. This case (buttressed by the clear ruling of the Court of Appeal in Re MN) illustrates the need urgently to bring on similar case management protocol in the Court of Protection jurisdiction.

The judge declined to make an interim deprivation of liberty authorisation pending appeal, ruling that an interim order could not be said to be in MAG’s best interests (section 48 MCA 2005). This was a case in which she had made interim deprivation of liberty authorisations from November 2011 through to July 2015; she was conscious of the ramifications of the refusal of the authorisation. The grant of an interim order pending appeal is well within the discretion of the court, and I therefore propose to say no more. However, the upshot was that MAG was unlawfully deprived of his liberty in his home. To their immense credit, the care workers continued to work on the case, with MAG, albeit that there must have been a question about the frustration of the contract, and the validity of any insurance for their activities. Ironically, by refusing the protection of the MCA 2005, MAG lost the right of review of his situation.

For the reasons set out above, I have reached the clear conclusion that DJ Glentworth’s approach was wrong, and that the appeals must therefore be allowed.

The order I make is therefore:

That is my judgment.