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England and Wales High Court (Family Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> A Primary Care Trust v LDV & Ors [2013] EWHC 272 (Fam) (18 February 2013) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2013/272.html Cite as: [2013] EWHC 272 (Fam) |
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This judgment is being handed down in private on 18th February 2013. It consists of 13 pages and has been signed and dated by the judge. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the 1st respondent and adult members of her family must be strictly preserved.
FAMILY DIVISION
IN THE MATTER OF LDV
BY HER LITIGATION FRIEND THE OFFICIAL SOLICITOR
AND IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
Strand, London, WC2A 2LL |
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B e f o r e :
IN THE MATTER OF LDV
BY HER LITIGATION FRIEND THE OFFICIAL SOLICITOR
AND IN THE MATTER OF THE MENTAL CAPACITY ACT 2005
____________________
A PRIMARY CARE TRUST |
Applicant |
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- and - |
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LDV (by the Official Solicitor) (1) CC (2) B HEALTHCARE GROUP (3) |
Respondents |
____________________
Alex Ruck Keene (instructed by CVC Solicitors) for the 1st Respondent
Michael Dooley (instructed by the local authority solicitor) for the 2nd Respondent
Peter Mant (instructed by Radcliffes Le Brasseur) for the 3rd Respondent
____________________
Crown Copyright ©
The Honourable Mr. Justice Baker :
Introduction
Background
(1) Does L have capacity (a) to conduct the litigation; (b) to make decisions as to her residence; (c) to make decisions about her care and treatment and (d) to consent to the restrictions imposed upon her during the currency of her admission at WH?
(2) Does the current care regime for L amount to a deprivation of liberty?
(3) If the answer to the above questions is yes, how can her deprivation of liberty be authorised? Specifically, is she eligible to be deprived of her liberty under the MCA 2005, whether under a standard authorisation in accordance with the provisions of Schedule A1 or pursuant to an order of the court under section 16(2)(a)? Alternatively, (in a further question posed by the local authority) may she be lawfully detained under the MHA?
(4) If she lacks capacity, what order, if any, should the court make concerning her personal welfare?
(1) Do L's current circumstances amount objectively to a deprivation of liberty?
(2) When assessing whether L has capacity to consent to her accommodation at WH, in circumstances which amount to a deprivation of liberty, what information is relevant to that decision?
Deprivation of Liberty
(1) restraint is used, including sedation to admit a person to an institution where that person is resisting admission;
(2) staff exercise complete and effective control over the care and movement of a person for significant periods;
(3) staff exercise control over assessments, treatments, contacts and residence;
(4) a decision has been taken by the institution that the person would not be released into the care of others, or permitted to live elsewhere, unless the staff in the institution consider it appropriate;
(5) a request by carers for a person to be discharged to their care is refused;
(6) the person is unable to maintain social contacts because risk of restrictions placed on their access to other people;
(7) the person loses autonomy because they are under continuous supervision and control.
(1) whether the person objects to their confinement: see paragraph 25 of the judgment of Wilson LJ (as he then was) in P and Q v Surrey County Council (supra);
(2) the relative normality of the person's life: see paragraph 28 of the judgment of Wilson LJ in P and Q (supra);
(3) the relevant comparator, having regard to the particular capabilities of the person concerned: see paragraphs 38, 39 and 102 (viii) to (xii) of the judgment of Munby LJ (as he then was) in the Cheshire West case, (supra);
(4) as part of the overall assessment, the purpose for the placement: see judgment of Munby LJ at paragraphs 60 – 77 and 102 (vi) and (vii) in the Cheshire West case, as qualified for the reasons set out in CC v KK, supra, at paragraphs 94-96;
(5) the extent to which it can be said that the managers of the establishment, in this case WH, exercise complete and effective control over the person in his treatment, care, residence and movement: see the judgments of the European Court in DD v Lithuania ...supra), at paragraph 146 and Kedzior v Poland, (supra) at paragraph 57.
(1) WH is locked to visitors and its patients;
(2) L must seek the permission of nursing staff if she wishes to leave;
(3) in the community, L is supervised 1:1;
(4) staff would prevent her leaving WH and entering the community if she is assessed to be at risk;
(5) should L seek to leave WH, staff would seek to dissuade her from doing so using de-escalation techniques;
(6) if she were to abscond from WH or staff, the police would be alerted;
(7) there are restrictions of movement within the unit;
(8) the level of observations of L are variable, ranging from level 3 (every 15 minutes) to level 2 (line of sight) to level 1 (i.e. 1:1 close). And observations are increased or decreased according to the assessed level of risk;
(9) restraint is used where there is an assessed and immediate risk to herself or others;
(10) staff may seek to remove L from the area to de-escalate the situation;
(11) personal property may be searched when staff assess there to be a clear indicator or risk (e.g. ligatures, hoarding of medication, instruments for use to self-harm);
(12) personal searches may also be conducted according to indicators of risk;
(13) if required, sedative medication may be administered, if necessary intramuscular injection;
(14) L's contact with her mother is to be supervised by staff in the community according to assessed need or risk;
(15) no contact is permitted with her mother in the hospital.
Relevant information for consenting to a deprivation of liberty
(1) a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success: section 1(3);
(2) a person must be assumed to have capacity unless it is established that he lacks capacity on the balance of probabilities: Section 1(2) and Section 2(4);
(3) a person is unable to make a decision for itself if he is unable (a) to understand the information relevant to the decision, (b) to retain that information, (c) to use or weigh the information as part of the presence of making the decision or (d) to communicate his decision: section 3(1).
(1) that the person is being admitted to hospital;
(2) that the admission has been proposed because they are considered to be suffering from a mental disorder;
(3) that they are being admitted for the purposes of receiving care and treatment;
(4) that the treatment that they will receive may include treatment for mental disorder;
(5) that they will be accommodated in the facility at least until such time as they change their mind and decide to leave;
(6) that if they decide to leave that they might nonetheless be subject to an application made under the statutory holding power under section 5 of the MHA so that they might not in fact be able to leave when they wanted to if those treating them thought they were too mentally unwell to be allowed to leave.
(1) the locked nature of WH;
(2) the fact that L must seek permission of the nursing staff to leave;
(3) that L is to be supervised when she goes out into the community;
(4) the circumstances under which she will be prevented from leaving if she wished to do so;
(5) that if she left without permission the police would be alerted;
(6) that her treatment plan includes the prescription of anti-psychotic drugs and sedative medication;
(7) that contact with family members would be supervised and limited.
(1) that WH is a psychiatric hospital;
(2) that L was admitted there to receive care and treatment;
(3) that care and treatment would include varying levels of supervision (including supervision in the community) use of physical restrain and the prescription of medication to control her mood, and
(4) if she insists on leaving with the intention of not returning to WH her situation would be reviewed and she may be prevented from leaving by legal means.
Discussion and Conclusion
(1) that she is in hospital to receive care and treatment for a mental disorder;
(2) that the care and treatment will include varying levels of supervision (including supervision in the community), use of physical restraint and the prescription and administration of medication to control her mood;
(3) that staff at the hospital will be entitled to carry out property and personal searches;
(4) that she must seek permission of the nursing staff to leave the hospital, and, until the staff at the hospital decide otherwise, will only be allowed to leave under supervision;
(5) that if she left the hospital without permission and without supervision, the staff would take steps to find and return her, including contacting the police.