An article in Community Care this week commented that a cap on charges for non-residential care, introduced last month in Wales, may create ‘a perverse incentive for authorities to place more people in residential care, as they could then recoup more money in charges.’ For reasons of cost, councils may choose to meet people’s eligible needs through residential care placements, rather than supporting them through community-based services. This is a thorny area. There is a general preference at policy level - and often (but not always) for service users - for people to be supported in the community rather than having to leave their homes to go into residential care. But the reality is that community based solutions can cost more, particularly as people’s needs increase. Working in care, I have known people whose needs increased to a point where local authorities were no longer prepared to support them in their own homes because it became markedly cheaper to meet their eligible care needs in a care home. Sometimes this was despite their expressed preference to remain where they were. Are there any legal reasons arising out of human rights law, that might lend weight to preferences for community based care plans?
We have seen in recent cases that the Administrative courts are prepared to give local authorities quite a wide degree of latitude in how they meet eligible needs, even taking into account their obligations under s6 Human Rights Act 1998. Most notable, of course, is the judgment in McDonald v Kensington & Chelsea (note: a Supreme Court judgment on this is pending), although that case did not concern residential care. I’ve struggled to find recent domestic case law about rights to community living1; the case that springs to mind is Khana v London Borough of Southwark (2001 High Court2; 2002 Court of Appeal). The claimants sought a judicial review of the council’s decision to meet their eligible needs through an offer of places in a residential home, rather than provision of a two bedroom flat that would allow them to be cared for by their family. The case concerned Mrs Khana and her husband Mr Karim, both were Iraqi Kurds who had leave to remain in the country but ‘no recourse to public funds’. It was advanced that it was an essential part of their Kurdish culture to be cared for by family, and furthermore that since they spoke no English they would experience considerable isolation in residential care. In the High Court Article 8 arguments were advanced and rejected, but the reasons for this seem – to me – to be rather vague. The judge found that ‘the guidance and the legislation, as far as this area of the law is concerned, is very broad, very humane, and takes account of the needs and the respect for the family home and private life referred to in article 8.’ Mrs Justice Hallett concludes:
55. If, therefore, the family persist in their refusal to accept the accommodation offered, I, for my part would consider that the local authority has discharged its obligations, subject obviously to the question of continuing review of the situation.
The Court of Appeal affirmed this decision.
At the end of the High Court judgment, Fenella Morris - counsel for the claimants – asks for leave to appeal on the grounds that the refusal of a ‘reasonable offer’ of care by someone who lacks mental capacity should not be relied upon by councils to show they have discharged their duty. The judge suggests she asks the Court of Appeal for leave to appeal on this ground, but although an appeal is brought I can find no reference to the issue of capacity anywhere in it. To my mind, this is a very important issue and it’s a shame it was not taken up. Is it acceptable for someone’s care needs to go unmet, with potentially serious consequences for their health and wellbeing, if it is based upon a decision they did not have the mental capacity to make? It may be all too easy at times of high resource pressures for public authorities of all characters to accept a refusal of services without consideration for whether a person has the capacity to make that decision. In this article, Kirsty Keywood discusses the issues around social care refusal in an unpublished Court of Protection case, Re F3, in particular relation to the evidential threshold required to rebut the presumption of capacity (s1(2) MCA). Her paper is dedicated to the memory of Steven Hoskin, lest we forget that his harrowing murder occurred shortly after he refused care visits – the Serious Case Review later called into question his capacity to make the decision to refuse services.
Does the Mental Capacity Act change things since Khana?
I strongly suspect that if the same case came before the courts today, they would be more attuned to issues around mental capacity. It’s worth recalling that Khana was decided before the Mental Capacity Act 2005 was even passed, and only shortly after the Human Rights Act 1998 came into force. There is currently no statutory duty to safeguard vulnerable adults from harm; but the Department of Health has issued guidance, and local authorities may have positive obligations to protect the rights of vulnerable adults, arising out of s6 Human Rights Act 1998. I suspect that many local authorities today, erring on the side of caution, would seek to discharge their duties by placing Mrs Khana in residential care against her wishes rather than leave her with unmet care needs and at risk of harm. Placement in residential care against a person’s consistently expressed wishes is likely to be a deprivation of liberty (see JE v DE  paragraph 125, also P & Q  paragraph 25). Thus, in order to lawfully coercively place someone who lacks mental capacity in residential care a local authority would have to either make use of the deprivation of liberty safeguards or seek authorisation directly from the Court of Protection itself.
Once Article 5 is engaged, however, other legal considerations enter the fray that may present problems if community based alternatives that do not engage Article 5 are – in theory at least - available. These arise out of the structure of the MCA and the safeguards themselves, but may also arise out of the limited circumstances prescribed by Article 5(1) when a person can lawfully be deprived of their liberty. Put bluntly, the question of interest to me is: if community-based alternatives are possible but cost more – can it be lawful to deprive someone of their liberty? Or, put another way, can it be lawful to deprive someone of their liberty purely because it is a cheaper way to meet eligible needs? The issues are complex, and it’s easiest to start with the decision making process under the safeguards, and then work outwards through jurisdictional issues for the courts, before considering possible positive obligations under Article 5.
The deprivation of liberty safeguards and the Best Interests Assessor’s role
To recap, under the safeguards deprivation of liberty in a care home may be authorised subject to six qualifying requirements (s12 Schedule A1 MCA). One of these qualifying requirements is that an adult lacks mental capacity ‘in relation to the question whether or not he should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment’ as Mrs Khana was said to4. The ‘best interests’ requirement must also be satisfied:
16(1)The relevant person meets the best interests requirement if all of the following conditions are met.(2)The first condition is that the relevant person is, or is to be, a detained resident.(3)The second condition is that it is in the best interests of the relevant person for him to be a detained resident.(4)The third condition is that, in order to prevent harm to the relevant person, it is necessary for him to be a detained resident.(5)The fourth condition is that it is a proportionate response to—(a)the likelihood of the relevant person suffering harm, and(b)the seriousness of that harm,for him to be a detained resident.
It is the Best Interests Assessor (BIA), then, who is left to grapple with this thorny issue of whether placing someone in residential care is in their best interests, necessary to prevent harm, and a proportionate response to the likelihood and seriousness of the harm that would befall them were they not a detained resident. It seems clear to me that the answer they arrive at must be heavily contingent on what alternatives they have considered. During consultation, Age Concern expressed the view that the Code of practice should require BIA’s to set out what alternatives to detention were considered, and why they were rejected. This would certainly make plain whether BIA’s were considering community based options or not, and whether they were ruling them out on grounds that the local authority refused to meet the cost. Unhappily, this eminently sensible suggestion did not make it into the final Code. As yet, I’m unaware of any research into this issue – but I would be very interested to see some.
I contacted a senior official at the Department of Health about what alternatives the BIA should be considering, and whether they should authorise deprivation of liberty if community based alternatives that would not amount to deprivation of liberty were available. Their response was that deprivation of liberty cannot be authorised under the safeguards if a person could be safely cared for at home, but that this alternative must be ‘real, evidenced and tangible and as it were in their "gift"’, not merely desirable. Now, BIA’s don’t make service provision decisions – they simply decide whether to authorise detention or not. They can place conditions upon the managing authority of the care home, and if those conditions are not met then the deprivation of liberty is not to be regarded as authorised. However, there is nothing in the safeguards which enables BIA’s to make requirements of those commissioning the care, be they the local authority, a PCT, or even the relevant person’s deputy or attorney if they are self-funding. They could, of course, refuse to authorise on the basis that there were preferable, perhaps less restrictive, alternatives. We know that the number of times authorisation has been refused is pretty low (approximately 3% of l detentions in residential care) and dwindling (see this post), but I’m not sure if it’s connected with these issues around resourcing alternatives. I suspect BIA’s might find themselves under considerable pressure from colleagues – and quite possibly from managers - if they did so.
Barrister Paul Bowen regards this intrinsic conflict of interest as potentially rendering decisions of the supervisory body unlawful where it has a vested interest in the detention. The independence of the BIA is essential for ensuring decisions around detention are removed from resource considerations:
'...conflicts of interest are bound to arise where the supervisory body is also responsible for providing P with a package of care under the relevant community care legislation or under the NHS Acts. P may wish to be cared for at home, rather than in hospital or in a care home. The supervisory body may refuse to fund such a care package in the exercise of its functions under community care legislation or the NHS Acts, on the grounds more cost effective treatment can be provided in a hospital or a care home. The hospital or care home then seek the supervisory body's authorization for P's detention. The supervisory body then has a conflict: it has already decided that P should be cared for (and therefore detained) in the hospital or care home, so how can it then decide whether that detention is authorized under Sch A1? A fair-minded and impartial observer may well conclude that there was a real possibility the supervisory body would be biased in favour of detention, rendering the decision unlawful. It may be argued that this concern will be met by the requirement that the assessment must be undertaken by independent assessors...' Blackstone’s Guide to the Mental Health Act 2007 [12.13]
I have yet to see the question of resourcing the least restrictive alternative come explicitly before the Court of Protection, but that is not to say it has not arisen in the past and the judgments remain unpublished.
The lack of information on the best interests decisions of the Court of Protection
Under s21A MCA, the Court of Protection is the ultimate arbiter of the lawfulness of any deprivation of liberty authorised under the safeguards, and it may also make findings of liability for acts associated with unlawful detention. The Court of Protection may also find that a person has been deprived of their liberty unlawfully using its declaratory powers under s15 MCA (e.g. G v E ). The judges of the Court of Protection will make this decision with respect to general human rights principles, by reference to (at least) the main body of the MCA itself and the qualifying and procedural requirements of Schedule A1 and eligibility requirements of Schedule 1A. It is unclear how the judges of the Court of Protection are responding to complex issues at the intersection of Article 5 and provision of services under public law.
Although there is a growing body of published case law on what constitutes a deprivation of liberty, there is a real scarcity of published case law on when deprivation of liberty has been found by the Court of Protection to satisfy the best interests requirement, and when it has not. We know, for instance, that Mr DE was deprived of his liberty unlawfully, but we have no idea whether the court consequently decided to authorise that detention in his best interests or send him home. There have been at least thirty appeals under s21A (see this post for more information). My growing suspicion, based on Freedom of Information Act requests I have made of English local authorities, is that very few detentions authorised under the safeguards that have been found unlawful upon appeal (Steven Neary’s was terminated, but the lawfulness of the original detention will be determined by way of judicial inquiry at the end of this month). The Court of Protection also kindly provided me with statistical information on deprivation of liberty authorised under s16 MCA; according to their figures there have been 56 applications to the Court of Protection for authorisation of deprivation of liberty that falls outside the scope of the safeguards (April 2009 – 31 December 2010). Again, we know very little more about whether these applications were successful, and the basis upon which they were granted or refused. I’m tired of beating the same old drum about Open Justice, but there seem to me to be very strong reasons in a democratic society for publishing the basis upon which we are depriving people of their liberty.
In Re P, an unpublished case described in the January edition of the 39 Essex Street Court of Protection Newsletter, Mostyn J upheld a challenge to a standard authorisation of an elderly man with dementia who was ‘desperately unhappy’ in his care home. Mostyn J held, on the basis of s1(6) MCA that there was effectively a presumption against deprivation of liberty; the man was allowed to return home. We don’t know, however, whether considerations as to the resourcing of a package of care were discussed. One hopes if they were that the judgment would have been published. In Re RK issues around resourcing alternatives were touched upon tangentially, but never explored in detail as it was determined RK was not deprived of his liberty.
Issues arising from the jurisdiction of the Court of Protection
One recently published case explores complex issues around the jurisdiction of the court itself. The court was asked to decide in Re PB ‘whether a man who lacks capacity and who has been looked after by his family for over 40 years should live at or away from home’ . Charles J was also asked to make a declaration as to whether the proposed care regime away from home would amount to a deprivation of liberty, and he himself suggests that it is worth considering whether the care regime at home might also amount to a deprivation of liberty. A key background issue was that if he was to return home ‘there is a need for a support package from public authorities to assist her in his care, including issues relating to respite care and a number of other matters’, and so a question arose as to whether it was within the jurisdiction of the Court of Protection to pass comment on the lawfulness of the council’s public law decision around provision of services. Traditionally, the jurisdiction of the Court of Protection is one of private law and not public law. In re Z (A Minor) (Identification: Restrictions on Publicity)  Fam 15 Ward LJ says:
The wardship or inherent jurisdiction of the court to cast its cloak of protection over minors whose interests are at risk of harm is unlimited in theory though in practice the judges who exercise the jurisdiction have created classes of cases in which the court will not exercise its powers.
The problem was that, jurisdictional issues aside, the court had insufficient evidence upon which to base a decision in any case:
‘The local authority's position was that P's best interests were not served by returning home and, therefore, it had not put in evidence as to any such package. The mother was asserting that there should be such a package but had not made any suggestions as to the detail of that package and how and by whom it would be provided; nor had the Official Solicitor on behalf of P.’ 
‘On enquiry, it became apparent (and unsurprisingly apparent) that the view of the local authority was that, in what it maintains is the proper exercise of its statutory duties, it would not be providing such support.’ 
This case illustrates that it is not always so easy to separate principles of private and public law, and that human rights considerations may transcend both. Charles J confines his remaining remarks to the importance of identifying these issues of public law before bringing cases before the Court of Protection, and the jurisdictional issues. On whether the public law issues should be approached through the lens of the Court of Protection, Charles J comments:
"Under both regimes, it is clear that Article 8, no doubt Article 6, and in certain cases Article 5 will have a part to play. Cases in the Family Division demonstrate that Human Rights points (and so points under those Articles) can often be appropriately and properly dealt with within the four walls of the welfare or best interests jurisdiction." 
"It is more difficult, however, as Family cases also show, if the point at issue relates to whether or not a certain option or package of care is available, or will be made available by a public authority in the exercise of statutory duties. In that context, it seems to me that the point arises whether or not a litigant, whether it be a member of P's family or P, can obtain relief from the Court of Protection that effectively adds to the available options from which the best interests choice falls to be made (and thus by the application of public law and Human Rights tests and principles in those private law proceedings), or whether they can only effectively obtain such relief by seeking judicial review. Also in the exercise of the jurisdiction of the Court of Protection questions arise as to what orders it can make, or is precluded from making, as a public authority by reference to Human Rights points, and as to whether the court should embark on a process of negotiation with another public authority, or a fact finding exercise, that is relevant to decisions of that authority concerning the best interests of P."  (emphasis mine)
The question is, can the Court of Protection make a requirement of a public authority to provide services which it does not feel compelled to do under ordinary public law? Several issues arise out of this. The first is whether it is appropriate that the Court of Protection makes decisions that will have an impact upon the distribution of resources by public authorities, when it is not an administrative court. In A v A Health Authority  EWHC 18 (Fam)4 Munby J comments:
Stark illustrations of the Family Division's limited powers are to be found in cases where a particular child's need for medical treatment comes into conflict with other and competing demands on a health authority's limited resources. Taking the view that it is for health authorities and not for the court to prioritise or allocate scarce medical resources, the Family Division declines to exercise its jurisdiction so as to give the child—even if the child is a ward of court—a prior call on limited resources. 
The distinction here may be that in these cases the Court of Protection is being asked not merely to refrain from requiring a local authority to provide a particular service, but to endorse an active alternative that engages Article 5. It is one thing to say that it is for public authorities to decide how to spend their resources, and quite another to endorse a course of action that may infringe the rights of court users. To my mind the fundamental question that needs to be settled is whether Article 5 places positive obligations upon public authorities to make available the resources to obviate the need for detention. If it does not, then BIA’s and the Court of Protection alike must surely proceed upon the basis that the only ‘alternatives’ they may consider for best interests determination are those the public authority in question is willing to make available under public law. If it does, then perhaps the Court of Protection will find that it somehow needs to sit with an Administrative and Court of Protection hat on simultaneously?
If Article 5 does place positive obligations upon public authorities to make available the resources to avert the need for detention, then a secondary issue may arise as to whether this leads to discriminatory treatment of those individuals who have capacity, and who are not offered community based care options. Whilst those without capacity may be supported in the family home, those with capacity may be left to make do without support or accept residential care placements they find unpalatable. I don’t intend to discuss this today, but it is surely a consideration that will be at the back of the mind of any court.
Does Article 5 place positive obligations upon public authorities to make community-based alternatives to detention available?
One strand of case law that may inform this question relates to deferred discharge from detention under the Mental Health Act, where delay was caused by a failure to arrange alternative accommodation or services. I am going to quote shamelessly from this excellent summary by the Mental Health Act Commission in Placed Amongst Strangers (2003):
So far, UK judgments have concluded that neither Strasbourg jurisprudence nor the implications of ECHR Article 5 indicate that a Member State owes a duty under the Convention to put in place facilities for the treatment in the community of patients who would otherwise be detained in hospital. However, where a Member State’s own law requires such resources for the express purpose of obviating the need for detention, or where such resources are available but are not utilised, Article 5 might be engaged. In February 2003 the High Court determined that it was sufficient for authorities charged under section 117 of the MHA 1983 with providing aftercare services to make their ‘best endeavours’ to secure arrangements required for a patient’s conditional discharge into the community. The failure of such arrangements would not result in the patient being falsely imprisoned. The courts have also repeatedly found, following Ashingdane v UK , that Article 5(1) is not engaged where a patient is detained in inappropriate conditions due to a lack of facilities. However, at the time of writing, at least one of the above judgments is subject to appeal (and is further discussed at 3.21 below).
In Johnson v UK (1997) the ECtHR ruled that the ongoing detention of a man following discharge by a tribunal due to lack of after-care provision was unlawful because he was no longer of ‘unsound mind’ and did not meet the Winterwerp criteria. In a more recent case, Ms Kolanis’ detention was also ongoing following discharge by the MHRT because no aftercare was found. However in Kolanis v UK (2005) her situation was distinguished from Johnson:
The present case is quite different. There was never a medical consensus, nor did the tribunal find, that the Winterwerp criteria were not satisfied. The tribunal considered that the appellant could be satisfactorily treated and supervised in the community if its conditions were met, as it expected, but the alternative, if these conditions proved impossible to meet, was not discharge, either absolutely or subject only to a condition of recall, but continued detention.
Based on these cases alone, there does seem to be an aversion by the ECtHR to placing positive obligations upon member states to provide care or treatment that would obviate the need for detention. In the context of detention under the MCA, it’s possible the reasoning in Johnson and Kolanis would apply: even if a person could be cared for in the community given adequate support, if the only alternative is detention then the conditions for lawful detention under Article 5 are made out. Speaking personally, I would like to make out that there are legal reasons why this line of argument should be distinguished from the context of detention in social care facilities, but I can think of no obvious means to do this.
However, it may be that the European Court itself will move towards a doctrine of positive obligations to obviate the need for detention. It is possible that the relatively recent ratification of the UN Convention on the Rights of Persons with Disabilities (CRPD) by many member states and the EU will influence the development of a doctrine of positive obligations by virtue of reading Article 19 into existing rights:
Living independently and being included in the communityStates Parties to this Convention recognize the equal right of all persons with disabilities to live in the community, with choices equal to others, and shall take effective and appropriate measures to facilitate full enjoyment by persons with disabilities of this right and their full inclusion and participation in the community, including by ensuring that:
(a) Persons with disabilities have the opportunity to choose their place of residence and where and with whom they live on an equal basis with others and are not obliged to live in a particular living arrangement;
(b) Persons with disabilities have access to a range of in-, residential and other community support services, including personal assistance necessary to support living and inclusion in the community, and to prevent isolation or segregation from the community;
(c) Community services and facilities for the general population are available on an equal basis to persons with disabilities and are responsive to their needs.
The recently heard case of Stanev v Bulgaria will give the ECtHR an opportunity to revisit their jurisprudence on this matter. The case was heard before the Grand Chamber, but judgment is yet awaited. Counsel for Rusi Stanev argued that he was deprived of his liberty when he was placed in Pastra Social Care Facility against his will. In the webcast of the oral hearing it was submitted that:
"...the state failed in its positive obligations to provide less restrictive alternatives to Mr Stanev's institutionalisation, which directly and immediately interfered with his right to private life."
The case was brought by the Mental Disability Advocacy Centre (MDAC) as part of their Council of Europe wide strategic litigation. Interights also made a written submission in which they commented:
‘INTERIGHTS believes that this case presents the Court with an opportunity to examine critical questions regarding the lawfulness of the practice of placing people with disabilities in social care homes in the absence of adequate community based services, from the standpoint of Articles 5 and 8 of the European Convention on Human Rights. Given the widespread nature of this practice, the Court’s decision in this case has the potential to influence the lives of many tens of thousands of individuals throughout Central and Eastern Europe who are placed in long-term residential care, with little or no concern for some of their most basic rights.’
They go on to state:
‘Placement in social care homes lacks even the most basic safeguards against arbitrariness, and it is usually grounded on the social deprivation of the person concerned, which is not a permissible justification under Article 5(1(e). Instead, it is suggested that involuntary psychiatric commitment should always be based on a therapeutic necessity, in line with comparative and international standards. Finally, safeguards against unlawful deprivation of liberty under Article 5 should be accompanied by positive duties under Article 8 to develop community-based services.’ (emphasis mine)
Both Interights and MDAC highlight the importance of reading Article 19 CRPD into existing human rights instruments. Certainly placing people in residential care against their wishes purely through lack of community based alternatives seems entirely out of step with Article 19. The UK ratified the CRPD in June 2009, and although it has no direct mode of application in domestic law the fact of its ratification should give it the status of persuasive authority in any deliberations by the domestic courts on this matter. Combined with the various policy materials advocating greater choice and control for users of social care services, encouraging public authorities to put in place support for independent living, it certainly seems as if the will of parliament and the executive faces in this direction. Whether parliament has provided the means to make its wishes a reality at local level is another question. The outcome of Stanev v Bulgaria is awaited with interest.
1Although, like most people, I like to sleep with a copy of Clements’ Community Care and the Law under my pillow (and Mandelstam’s Community Care Practice and the Law on the nightstand), there are vast tracts I have yet to fully digest, let alone understand. It’s entirely possible that I have simply overlooked important cases on this matter. In addition, although there is a steady drip (not quite a trickle) of deprivation of liberty case law coming out of the Court of Protection, I am very aware that much of it is not published. Some readers, in fact, may be personally familiar with unpublished Court of Protection case law which relates directly to this matter, and it may contradict entirely what I have written. In this case, again please do feel free to correct me if you can do so without falling into contempt (in the comments, or by email). Again this serves to reinforce the point I’m even bored of hearing myself make: we need more published case law. And finally, I’ve tentatively raised this issue with some legal, policy and social care folks, and received a very mixed reception – so any ideas here are far from widely accepted and offered purely as food for thought, not something to base practice on.
2I can’t provide a link to the High Court judgment I’m afraid as I can’t find a copy of it freely available online. The version I am referring to is from the law reports (2000 WL 1791525), available through subscription only. Yet another example of the shortcomings of ‘open justice’ in the UK...
3F, Re Unreported May 28, 2009 (CP)
4According to the evidence of the doctor in paragraph 16 of the High Court judgment Mrs Khana ‘“… she was able to tell me that she wanted to remain living with her husband and daughter — and I thought this expressed a valid preference. However, she does not have the mental capacity to weigh up the pros and cons of alternative residential placement …’ (I can’t link to this; see footnote 2).
5Again I can’t link to the judgment because there are no freely available copies in the public domain. It is on Westlaw though.
6Again, I can’t find a free copy of this judgment in the public domain...