J Council v GU  EWHC 3531 (COP),  MHLO 137
"Happily, all parties have agreed a final order which they invite me to approve. I am satisfied that it is a proper order to make and its terms and provisions are fully in the interests of George. However the case has given rise to interesting questions about Article 8 of the European Convention on Human Rights and what the scope of the safeguards should be to ensure compliance with it for the future. I have been exhorted to give a judgment which states unambiguously that the arrangements which I approve are compliant with Article 8. It is said that this judgment is likely to be looked at in any case presenting similar facts." [Detailed summary available.]
Family Law Week have kindly agreed for their case summary to be reproduced below.
J Council v GU & OrsB
Application in the Court of Protection which provides guidance as to how the Article 8 rights of the vulnerable adult should be protected if they are deprived of their liberty and subject to restrictions in their place of residence.
The local authority applied for declarations and orders in respect of GU. The parties to the application were GU, the NHS Foundation Trust, The Care Quality Commission and the Care Home in which GU resided. GU was a 57 year old man who suffered from a number of separable mental disorders including childhood autism, obsessive-compulsive disorder, dissocial personality disorder, mixed anxiety disorder and paedophilia. All parties agreed that on the basis of psychiatric evidence GU lacked capacity to litigate and make decisions about the issues which were the subject of the application. All parties also agreed that it was in GU's best interests that he remain living in a care home ("Y care home") indefinitely and that this would result in a deprivation of his liberty which was authorised by the court.
The parties also agreed that G should be subjected to fairly rigorous restrictions in his contact and correspondence with other people. The reason for the restrictions was behaviour demonstrated by GU as a result of his paedophilia. It was therefore judged necessary that GU was from time to time strip searched; that his correspondence was monitored; and that his telephone conversations were listened to (by aural physical monitoring of his side of the conversation).
It was accepted that these restrictions represented an interference with his private life and therefore the question which arose was whether this interference was compliant with GU's Article 8 rights. The court acknowledged that Article 8 is not an absolute right and may be curtailed "in accordance with the law" where it is necessary, inter alia, for the protection of health and morals or for the protection of the rights and freedoms of others. The court highlighted that for the curtailment to be "in accordance with the law" the measure in question has to have a basis in national law, has to be accessible to the person in question and that person has to be able to "foresee" its consequences. This last feature was defined as meaning that the consequences of the legal measure have to be predictable. Finally, the measure must be compatible with the rule of law so as to ensure that there is not an arbitrary interference with the Article 8 rights and if a discretion is vested in a public authority, then the scope of that discretion must be clearly signalled and specified.
The court explored the requirement of a "basis in national law" and noted with some surprise that whilst such operatives measures (which represented the interference in this case) were specifically addressed within primary and secondary legislation governing high security psychiatric hospitals there were no equivalent detailed procedures and safeguards stipulated anywhere for persons detained pursuant to an order made under the Mental Capacity Act 2005.
A 52 page policy document had been agreed between the parties which contained specific detailed separate policies regulating the circumstances in which the restrictions on GU could be implemented. The court accepted that not every case where there is some interference with Article 8 rights in the context of a deprivation of liberty authorised under the 2005 Act needs to have in place detailed policies with oversight by a public authority. There may, for example, be a one-off issue where an order from the Court of Protection will suffice. However, where there is going to be a long-term restrictive regime accompanied by invasive monitoring of the kind in this case, the policies overseen by the applicable NHS Trust and the Care quality Commission akin to those which were agreed here were likely to be necessary if serious doubts as to Article 8 compliance are to be avoided.
On a separate issue the court also questioned why the names of the parties are anonymised by the use of initials in court documents in the Court of Protection. The judge could not find a legal basis for this and observed that court documents should therefore bear the parties' actual names.
Summary by Alison Easton, barrister, Coram Chambers