Re MIG and MEG [2010] EWHC 785 (Fam)
Neither MIG (aged 18, in a foster placement) nor MEG (aged 17, in a small group home) was deprived of her liberty. (Detailed summary on case page.)
Key points
- MIG (aged 18) is placed with a foster family.
- MEG (aged 17) is in a small residential home.
- They have moderate / severe learning disabilities.
- Both are under continuous supervision and control, for their own care, and both lack capacity to make decisions about their care arrangements and residence.
The case dealt with issues of contact and care, but also raised the question whether MIG and MEG were deprived of their liberty.
Mrs Justice Parker’s judgment is dated 15 April 2010, but was not published initially pending an agreed summary being prepared of the first 124 paragraphs, dealing with the background, family relationships and issues of contact, which is now available.
Paragraphs 125 onwards deal with issues of deprivation of liberty, and are permitted to be published in full.
In summary:
- The Court has power under MCA to make orders depriving a 16-18 year old of liberty (para 182).
- It is possible for deprivation of liberty to occur in a domestic setting in a family home (para 199).
- The foster carer, though self-employed, was an agent of the local authority, and therefore any deprivation of liberty would be imputable to the state (para 196). But there is no deprivation of liberty simply by virtue of placing someone in foster care or a care home who lacks capacity to consent (para 203).
- In considering whether there is a deprivation, it is relevant to consider the alternative – ie the life that P would be leading if not in that placement (para 203).
She says that neither MIG nor MEG is deprived of liberty in their current placements for a number of reasons, which include (at paras 233-234):
- “each lacks freedom and autonomy dictated by their own disability, rather than because it is imposed on them by their carers. Each is under the continuous supervision and control of her carers … so as to meet her care needs rather than to restrain her in any way…”
- “No other arrangements less restrictive or invasive could be devised that would meet their care needs”
- “In neither of these homes are they principally there for the purpose of being ‘treated or managed’. They are there to receive care” (para 230)
- They “have no subjective sense of confinement”.
Comment
There is a thorough and helpful review of the domestic and ECHR authorities as to when a deprivation occurs or not, including in hospital and care homes, as well as other contexts including control orders for terrorism, and the police crowd control case of Austin v Commissioner of Police of the Metropolis [2009] UKHL 5.
Austin can be read to say that the intention or purpose of the police’s actions is relevant to whether those actions constitute a deprivation. Reviewing this case, Parker J emphasises that the context of the case is key – the police were maintaining public order, rather than deliberately detaining the crowd involved. She accepts that the fact it is not the detainer’s intention to deprive someone of his liberty does not mean that no deprivation occurs. Whether there is a deprivation is a different and separate question to whether that deprivation is in the person’s best interests.
Despite this recognition, the judgment is still rather ambivalent about this, and risks perpetuating some confusion among practitioners required objectively to assess whether or not a deprivation is occurring. Parker J refers at different times to “intention”, “purpose”, “motivation” and “reasons”. She concludes that benign intentions are not relevant to the issue of whether or not someone is objectively being deprived of liberty, but goes on in the same paragraph (para 230) to say that it is permissible in this case to look at the “reasons” for MIG and MEG are each living where they are.
Taken together with the judgment in Re A (Adult) and Re C (Child); A Local Authority v A [2010] EWHC 978 (Fam) (where A and C were held not to be deprived of liberty, despite being locked in their bedrooms for 10-12 hours overnight, largely due to the context being a loving and supportive family home) this seems to continue the dangerous conflation between the question of the existence of objective deprivation and the separate issue of justification of any deprivation by reference to the person’s best interests.
It is thought that part of the reason for the relative under-use of the DOLS system, by reference to the prior estimates, is the negative connotations of the phrase “deprivation of liberty” itself, making staff reluctant to see their care in those terms.
The strong impression given in this judgment is that it would need a regime to impose restraint and restrictions on P that go above and beyond what is needed for P’s own care and best interests, before it could be considered a deprivation. That cannot be the case, at least as regards a care home or hospital, as the purpose of the MCA and DOLS in particular is to protect people who lack capacity from well intentioned intervention without due scrutiny or process, as was exactly the situation in the seminal case of Bournewood.
Without a very clear understanding that judgments like this are wholly dependant on the particular context of the family home, they are likely to add to the reluctance of care homes and hospitals to recognise deprivations in their care, the ongoing underuse of DOLS, and the perpetuation of the well meaning but unscrutinised care that the new legal framework was intended to address.
It is easy to see why the Courts would be reluctant to hold that a “deprivation of liberty” is occurring in a family home, as the term itself is so pejorative. But holding that there is no deprivation occurring, by reference to good intentions, purpose, context, proportionality or even the person’s best interests, however described, can only perpetuate the prevalent confusion that care homes and hospitals need not invoke the DOLS safeguards, and due process at all, where care is reasonable and well intentioned.
Citations etc
Re MIG (Incapacitated Adult) and MEG (Incapacitated Minor), Surrey County Council v CA [2010] EWHC 785 (Fam)B