Re ADE (Scope of Schedule A1) (2010) COP 11821802
Given that a standard authorisation extends to restraining a person from leaving the accommodation, it must also extend to compelling him to return: "Do the powers under the existing standard authorisation extend to coercing ADE back to the nursing home if ADE refuses to return? It would be little short of absurd if the local authority and AHNH had powers to restrain him from leaving but not to compel him to return: the greater power must include the lesser. I will therefore declare that this power is implicit in the current and any future standard authorisation."
Note of judgment
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The case in front of the court is an appeal by ADE under section 21A of the Mental Capacity Act 2005 against a standard authorisation made concerning him. There have been a number of standard authorisations in relation to him. The present standard authorisation which is due to expire on 8th July 2010 confines him to the care of AHNH care home.
The first question is how is this appeal to be disposed of. ADE is now represented by the Official Solicitor as litigation friend, who does not support this appeal, as on the evidence the case is hopeless it being common ground that there is a long history of mental ill health coupled with an entrenched set of delusions including the belief that he is a member of both Houses of Parliament.
Having refused that application, I now go on to consider the extent of the powers given to XCC and AHNH under the existing, and any renewed, standard authorisations. The powers of restraint and deprivation of liberty fall under Schedule A1 of the Mental Capacity Act 2005. It is common cause that these powers extend to a power to restrain ADE if he tries to leave the care home. The question is whether within those powers there is a power to coerce ADE to return if he refuses to return to the care home from a period of leave. It is understandably in his interests that ADE should have access to society in the community and ‘escape’ the confines of the care home. The PCT have agreed to fund befrienders to encourage access to the community.
Do the powers under the existing standard authorisation extend to coercing ADE back to the nursing home if ADE refuses to return? It would be little short of absurd if the local authority and AHNH had powers to restrain him from leaving but not to compel him to return: the greater power must include the lesser. I will therefore declare that this power is implicit in the current and any future standard authorisation.Summary of judgment
The following is an extract from 39 Essex Street, 'Court of Protection Newsletter', issue 4, December 2010 (link below).
Robert Eckford of the Official Solicitor's office has recently kindly brought to our attention an important decision of Mostyn J of June 2010 regarding the scope of the powers that are granted by a standard authorisation under Schedule A1 to the MCA 2005. The authors understand that there is no transcript of the judgment, but that no problems will be caused by the dissemination of the gist of the judgment in an entirely anonymised form.
Mostyn J was considering the extent of the powers granted to a local authority and a care home under existing (and any renewed) standard authorisations. He noted that it was common cause that these powers extended to a power to restrain P if he tried to leave the care home. The question for him was whether within those powers there was a power to coerce P to return if he refused to return to the care home from a period of leave. Mostyn J noted that it was understandably in P's interests that he should have access to society in the community and 'escape' the confines of the care home, and that the relevant PCT had agreed to fund 'befrienders' to encourage access to the community.
Mostyn J therefore asked himself whether the powers under the existing standard authorisation extend to coercing P back to the nursing home if P refused to return. He noted that it would be little short of absurd if the local authority and care home had powers to restrain P from leaving but not to compel him to return, and that the greater power must include the lesser. Mostyn J therefore declared that the power was implicit in the current and any future standard authorisation.
Comment
This decision is of some importance as a companion piece to and/or re-affirmation of the decision of DCC v KH (2009) COP 11729380, in which DJ O'Regan held that a DOLS standard authorisation was sufficient to return P on the long journey from contact sessions to his residential placement. Notwithstanding the conclusions expressed in these two cases, however, the authors' clear view (and one accepted in at least one case in which they have appeared in Archway) remains that standard authorisations are not apt to cover any deprivation of liberty arising whilst P is being taken to the placement covered by the standard
authorisation.Citations
ADE v XCC and AHNH
Originally on MHLO as "Re P"
Case no 11821802
External link
No Bailii link (neutral citation is unknown or not applicable)
39 Essex Street, 'Court of Protection Newsletter', issue 4, December 2010