Taking liberties

The case of Steven Neary is interesting not just because it has attracted a great deal of press attention but also because it provides analysis and commentary on the responsibilities of supervisory authorities (PCTs and local authorities) when dealing with deprivation of liberty (DOL) safeguards.

In Hillingdon LBC v Neary (by his litigation friend the Official Solicitor); Equality & Human Rights Commission (Interested Party) [2011] EWHC 1377 (COP), Steven Neary had childhood autism and a severe learning disability and had lived with his father Mark Neary since birth.

In December 2009 Mark Neary requested some respite care for a few days. Subsequently, against the wishes of his father, the local authority (Hillingdon LBC) decided that it was not in Steven's best interests to return home and he remained in residential care for a further year until December 2010 when a court decided that he should return home to live with his father.

The court found that the decision by Hillingdon to refuse to allow Stephen home unlawfully deprived him of his liberty and was a breach of articles 5 and 8 of the ECHR.

Media reporting

Hearings in the Court of Protection have generally been held in private unless there has been good reason not to do so. If there is good reason the court will then consider whether the requisite balancing exercise justifies the making of the order.

Each case must be decided on the individual facts. In this particular case the court found that:

• Steven Neary's circumstances were already in the public domain and even if the court proceedings were to remain unreported it was unrealistic to continue referring to the individuals in the case by their initials as this did not offer any meaningful protection in the circumstances.
• If Steven's claims were made out the facts of the case deserved to made known to the public.
• If Steven's claims were not made out it would be right for the record to be corrected.
• There was no evidence of detriment to Steven either in the past or likely to happen in the future.

There is public interest in the work of the Court of Protection being understood to avoid misunderstandings and to help other individuals who may be in a similar situation. For these reasons and the specific reasons relating to Steven, the court decided that the bulk of the matters could be reported on.

Hillingdon published a media briefing note which was strongly criticised by the court. In view of the fact that these matters may receive increased media coverage, it is essential that public bodies take advice from those who are experienced in interacting with the media.

Court of Protection application

The court made it clear that a low threshold should be applied in going to the Court of Protection if:

• there is doubt about whether there is a deprivation of liberty;
• there is doubt about whether it is proportionate to go to court;
• the best outcome is not clear;
• an important welfare issue cannot be resolved by discussion; or
• any application to court should be made promptly and the burden is on the public body to go to court. This burden increases if the family do not instigate proceedings.

The court gave guidance on several areas of supervisory authorities' practice when dealing with DOL safeguards:

• Purpose of DOL authorisations: the DOL scheme is intended to safeguard individuals against arbitrary detention. DOLs should not be used simply to prevent an individual from returning home.
• Responsibility and decision making: Hillingdon was wearing a number of different hats in relation to its responsibilities. Hillingdon had a sub-department providing social work support, another running the support unit and another representing the supervisory body that decides whether or not a DOL authorisation should be granted. Local authorities should be clear who is in charge and responsible for which decisions.
• Responsibilities of supervisory body: the local authority in its role as a supervisory body is responsible for the granting of a DOL authorisation. They should examine any assessment with rigorous independence and care.
• Best interests assessments: the best interests assessment is the cornerstone of the protection of DOL safeguards. The purpose of a best interests assessment is to ensure that a person is only deprived of his liberty where it is in his best interests, necessary and proportionate in relation to the likelihood and seriousness of the harm he might suffer. Supervisory bodies must actively supervise the process and be clear that a standard authorisation should receive the same level of scrutiny as a court order. The starting point is that mentally incapacitated adults are better off living with their family than in an institution (if all other things are equal) and the state can only justify removing vulnerable adults if that would provide a better quality of care than they had been receiving. A best interests assessment should make reference to the person's wishes and feelings or those of their family, an assessment of the advantages and disadvantages of alternative care options, an assessment of the relationship between individual and family carer and to the need for an IMCA. It should also reflect any dispute or concerns about a placement and in such circumstances it should be made a condition by the supervisory body that an immediate application is made to the court. This decision follows the case of A CC v MB et al [2010] EWHC 2508 in which the judge said that a best interests assessment concluded without consideration of the realistic alternatives to the placement was flawed.
• Managing the carers/families of individuals: supervisory bodies should ensure that they include family carers in the decision-making process and that this should be open and transparent. The court also found that emails sent about Mr Neary were disrespectful and had an 'unfortunate tone'. All professionals involved in the care of an individual should be careful to maintain respect in every method of communication.

Misjudgment

Many health and social care professionals dedicate their lives to working with people who have profound disabilities. The court rightly noted that this task is by no means simple. The problems in this case arose from misjudgment not a lack of commitment. However, it is essential that all relevant parties have appropriate and regular training in all aspects of mental health and take prompt legal advice where necessary.

The DOL safeguards are intended to provide meaningful protection and should not be used to legitimise what is inherently unlawful.

If supervisory authorities are in any doubt as to the way forward they must ensure that an application is made to the Court of Protection.

Finally, supervisory bodies need to be aware that increased reporting of these cases will encourage others who find them-selves in a similar position to challenge the supervisory authority, whether it is a PCT or local authority.