Mental health law briefing 165 – Deprivation of Liberty: Seclusion in residential special schools
The Court of Protection has recently handed down a Judgment concerning the use of seclusion on a young person who had been living in a residential special school for pupils with learning difficulties and complex needs.
The Claimant, C, suffered from severe autism and learning difficulties and exhibited challenging behaviours which included both self-harm and harm to his carers. Since May 1997 part of the management of his behaviour including the use of a padded blue room which was approximately 10 feet square with both a secure door and window. However, it should be noted that the door was not lockable. The evidence provided to the court was that the room had a calming influence upon the Claimant and its use had significantly increased in 2010. An application for Judicial Review of his care was made by C and his mother, LM, which included submissions that C had been unlawfully deprived of his liberty through his seclusion within the blue room which amounted to a breach of his rights under Articles 3, 5 and 8 of the European Convention of Human Rights.
Decision of the Court
In reaching its Judgment, the Court confirmed that it was now settled law that when “…determining whether there was a deprivation of liberty within the meaning of art 5 of the Convention on Human Rights, three conditions had to be satisfied: (i) an objective element of a person’s confinement in a particular restricted space; (ii) a subjective element, namely that the person had not validly consented to the confinement in question; and (iii) the deprivation of liberty had to be one for which the state was responsible.” In this particular case the Local Authority was considered responsible for the deprivation of liberty because they were closely involved in the care plan and service provision for the Claimant.
The Court went on to find that there had been a deprivation of liberty through C’s seclusion in the blue room and that there had been no legal authority present for the deprivation. It was accepted ground that the Deprivation of Liberty Safeguards (DoLS) regime did not, and does not, apply to residential schools nor does it cover those under the age of 18. The Court therefore indicated that when C had turned 16 the general approach of the Mental Capacity Act 2005 should have been followed and was more applicable to his situation than the provisions of the Children Act 1989. Indeed, whilst the DoLS regime was not available to C, the Court confirmed that from his 16 birthday an application should have been made to the Court of Protection seeking authorisation for any subsequent deprivation of liberty.
The Court also confirmed that whilst C was not detained under the Mental Health Act 1983 (MHA) because of the severity his learning disability, and as a matter of good practice, the Code of Practice to that Act provided the best practice provisions to be followed in relation to his care treatment and particularly to his seclusion and restraint. In accordance with that Code, the Court found that seclusion should only be used as a last resort and for the shortest possible time, that it should not be used as a punishment or a threat or because of a shortage of staff. It should not be used to form part of a treatment programme and, finally, seclusion should not be used solely as a means of managing selfharming behaviour.
Going forward the court found that for the continued use of the blue room to be lawful and in C’s best interests its use would have to be restricted. The report of the case confirms that specific court orders were to be made concerning C’s continued placement and in particular in relation to the use of seclusion.
The case is particularly helpful and relevant to those providing care to young people in residential special schools. What the case has made clear is that where a young person reaches the age of 16 and there is a concern that they may be deprived of their liberty within a residential school or indeed a children’s home, then unless they are subsequently detained in hospital under the MHA an application to the Court of Protection will need to be made to authorise any proposed deprivation of liberty.
In addition, the case confirms that where a children’s home/residential special school has a young person with a similar diagnosis as C, if restraint or seclusion is being contemplated, as a matter of good practice the relevant provisions of the Code of Practice of the MHA should be followed.
 R (on the application of C) v. A Local Authority  All ER (D) 171 (Jun);  EWHC 1539 (Admin)
Deprivation of Liberty Statistics
The latest DOLS statistics for the period 1 January – 31 March 2011 have recently been published. There were 2,308 authorisation requests, of which 1,326 led to a DOLS authorisation being granted. At the end of the quarter, there were 1,512 individuals subject to a current standard DOLS authorisation.
This briefing is for guidance purposes only. RadcliffesLeBrasseur 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.