Court of Protection rejects deprivation of liberty claims

Family Law | 22 Jan 2016 0

The Court of Protection has rejected claims that a local authority and NHS Trust wrongly deprived a disabled man of his freedom of movement.

North Yorkshire County Council & Another v MAG & Another concerned the eponymous ‘MAG’, a 35 year-old man who suffered from a range of disabilities, including autism, cerebral palsy, sensory impairments and learning difficulties. His behaviour was challenging and “pose[d] a risk to himself and others”.

MAG had lived in a flat with the help of carers provided by the local authority and NHS Trust since 2006. In 2011, North Yorkshire County Council applied for a formal declaration that MAG lacked the capacity (ability) to make decisions about his own welfare and best interests as result of his disabilities, particularly in relation to his housing and care needs. Consequently, limiting MAG’s freedom of movement – legally termed a ‘deprivation of liberty’ – and confining him to the flat was justified they argued.

The deprivation was authorised on an interim basis over a period of four years but eventually the Official Solicitor (OS) raised objections. The OS, , which represents vulnerable people in legal proceedings, argued that MAG’s continuing confinement was disproportionate and breached his rights under Article 5 of the European Convention on Human Rights (ECHR). Article 5 defines a right to liberty.

A District Judge agreed and refused to renew legal authorisation of the deprivation, citing the precedent-establishing case of Re MN, in which the President of the Family Division declared that the actual options available in a particular situation could not prevent a breach of Article 5.

The local authority and NHS Trust issued joint applications for permission to appeal. Subsequently, in the Court of Protection Mr Justice Cobb concluded that the earlier court had not fully considered the nature of MAG’s flat and the extent to which it met his needs.

The Judge declared:

“Neither MAG’s property, nor the manner in which his care package was delivered … was so unsuitable as to be unlawful; there was no breach of MAG’s rights under the ECHR.”

Mr Justice Cobb therefore granted the applications for permission, also granting the resulting appeal and reauthorizing the deprivation of liberty.

Read the ruling here.

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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