Care home briefing 123 – Complex restrictions on liberty require a detailed policy
The court of protection has recently had to consider the appropriate regime where a resident in a care home is subject to particularly restrictive provisions in his care plan.
The case of J Council v GU and others addresses the issues that arise in such circumstances to address the right to respect for private life under Article 8 in the context of individuals deprived of their liberty in private sector care homes.
The local authority applied for declarations and orders pursuant to the Mental Capacity Act 2005 (“the Act”) in relation to a number of restrictions imposed on “George”, a 57 year old detained in a private care home under the Act. In approving the final order agreed the by the parties, the court gave consideration to the wider question of the safeguards needed to ensure such restrictions complied with Article 8 European Convention on Human Rights (ECHR) in the future.
George suffered from a number of separable mental disorders, including paedophilia. Furthermore, he lacked capacity to make decisions concerning his care needs (amongst other things) and all parties agreed that it was in his best interests to remain living in the care home indefinitely. In addition, in order to minimise the risks associated with the manifestation of his paedophilia, it was agreed that he should be subject to fairly rigorous restrictions, involving strip-searching and the monitoring of his correspondence and telephone conversations.
There was no dispute that the final order requiring George to live at the care home amounted to a deprivation of liberty under Article 5 ECHR, but it was considered a lawful detention falling within the exception relating to persons of unsound mind.
The agreed restrictions, however, also amounted to interferences with his private life and rights under Article 8 ECHR which can only be curtailed ‘in accordance with the law’. The question was thus whether the measures had a sufficiently authoritative basis, and were sufficiently detailed in the scope of their safeguards, to comply with Article 8.
In considering whether the curtailment of Article 8 rights was ‘in accordance with the law’, the judgment focused in particular on the basis in national law. The judge noted that this does not mean that the measure must be justified by primary or secondary legislation, or a binding common law precedent. Rather the legal basis can extend to policy guidance given by public authorities.
The Official Solicitor raised concerns that the restrictions placed on George were insufficiently prescriptive in their content, carried insufficient safeguards, and were neither validated nor overseen by a public authority. As such, he doubted whether the arrangements complied with Article 8.
Accordingly, the parties agreed to a detailed, 52 page policy document which included specific provisions governing searches of George and his room, and the monitoring of his telephone calls and correspondence. Moreover, these policies were to be overseen by both the local NHS Trust and the CQC, as well as being subject to annual reviews by the court.
The judge stated that not every case involving a deprivation of liberty authorised under the Act would necessitate detailed policies with oversight by a public authority. He suggested that, particularly where the issue is one-off (for example, authorising an operation), an order from the Court of Protection might suffice to provide a sufficient basis in law. However, the present case entailed a long-term restrictive regime accompanied by invasive monitoring. In such a scenario, comparable policies overseen by the NHS Trust and the CQC are likely to be necessary going forward if serious doubts as to Article 8 compliance are to be avoided.
The judge pointed out that this debate would become redundant if Parliament, the Executive or the CQC were to formulate applicable rules or guidance. He found it difficult to fathom why detailed procedures and safeguards are prescribed in legislation for similar operative measures implemented in high security psychiatric hospitals, whilst there are no equivalent provisions for persons detained in private care homes under the Act.
This judgment issues an explicit plea for an appropriate authority to address the issue of interference with Article 8 rights in the context of deprivations of liberty in private care homes. In the meantime, however, a lack of certainty prevails and care homes would be well advised to implement policy arrangements to regulate and monitor the position where significant restrictions are placed on individuals. Furthermore, these should be overseen by the relevant NHS trust or local authority and the CQC. Failure to do so evidently leaves private care providers vulnerable to applications to the Court of Protection for an order to that effect.
  EWHC 3531 (COP)
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.