Courts mustn't just 'rubber stamp' deprivation of liberty authorisations

An interesting, and mercifully short, Court of Protection case has just been published on Bailii.  In A v A Local Authority & Ors [2011] (I do wish they'd stop using the letter 'A' so much, it makes things very confusing when they're all against 'A Local Authority'), the court heard a case where an 85 year old man with dementia appealed against his detention in a care home, authorised under the deprivation of liberty safeguards.  The court heard compelling evidence from the local authority and his family that, although the man was very unhappy, 'he would dislike wherever he was' [13] and the placement was in his best interests.

In what seems to be an unusual step*, the judge acknowledged that although the assessments and the perspective of the family were in agreement that the detention was in A's best interests, he would direct a Court Visitor (funded by the Court of Protection) to visit A and produce a report on his capacity and best interests [17]. The judge commented:

I am very conscious that the Act has laid down stringent conditions for the deprivation of liberty, and that the court cannot simply act as a rubber stamp, however beneficial the arrangements may appear to be for the individual concerned. In the instant case, A wishes to challenge the authorisation, which deprives him of his liberty. Parliament has decreed that he should be entitled to do so, and has created safeguards to protect those deprived of their liberty against arbitrary action. [15]

The judgment is notable because it may mean that cases can be brought under s21A by detainees who object to their detention, even where there is little prospect of success. This may have a bearing on the availability of legal aid for such cases, and decisions by the Official Solicitor as to whether to take forward s21A appeals on behalf of detainees who also lack litigation capacity.  It also suggests that supervisory bodies cannot assume that independent assessments made under the safeguards will be free from closer scrutiny by the courts, even if they have every appearance of being appropriate and correct.


The case is reported in the March 2011 edition of the 39 Essex Street Court of Protection Newsletter, which should shortly be available from here.  The authors question how common the practice of appointing a court visitor will remain if there is an increase in applications to the court under s21A to appeal detention, as it may have significant consequences for resources.

The newsletter also provides an interesting commentary on the MIG & MEG (P & Q) appeal (discussed here), and states:

It might be said that the safeguards put in place by Article 5 ought to apply not just to those who have the capacity and/or temperament to cause a fuss. There are likely to be many examples where individuals without capacity may be oblivious to their circumstances, or unhappy but too miserable or too incapacitated to object.

This most recent judgment indicates the Court of Protection is increasingly willing to consider objections which are clearly and recognisably expressed by detainees, but there are few mechanisms for scrutiny of restrictive care for those whose communication is limited or who are dissuaded from expressing objections for other reasons.

*Because Court of Protection judgments are rarely published, it is hard to say if it actually is an unusual step - but it is the first time I have read of this in a published judgment.