The case of Steven Neary is interesting, not just because it has attracted a great deal of press attention, but in particular because of the analysis and comments on the responsibilities of supervisory authorities (PCTs and local authorities) when dealing with the Deprivation of Liberty Safeguards.
The background and decision
Steven Neary was moved to a care home in Hillingdon, in spite of the objections of his father, in January 2010. For a variety of reasons the Court found that Steven was deprived of his liberty unlawfully and was deprived of his right to family life and privacy for the best part of a year. The responsible authority in this case, the London Borough of Hillingdon, also failed to apply to the Court of Protection early enough to obtain a proper legal framework which would have legitimised the circumstances in which Steven was being kept. The judge made it clear that Hillingdon LBC failed to ensure that proper steps were taken to safeguard Steven’s fundamental human rights.
At one level, this case underlines the importance of ensuring that vulnerable, incapable individuals who are potentially or actually deprived of their liberty should receive proactive attention from the relevant authorities. Within the framework for obtaining an Authorisation for Deprivation of Liberty provided by the Mental Capacity Act, a PCT or a local authority should not simply rely on the resources or tenacity of such an individual or his family. One of the criticisms raised by the judge in this case was:
“[Hillingdon] acted as if it had the right to make decisions about Steven, and by a combination of turning a deaf ear and force majeure, it tried to wear down Mr Neary’s resistance, stretching its relationship with him almost to breaking point. It relied on him coming to see things its way, even though, as events have proved, he was right and it was wrong. In the meantime it failed to activate the statutory safeguards that exist to prevent situations like this arising.”
To require the statutory authorities to engage with the family in a meaningful sense would probably be no surprise to anyone. This case shows that a supervisory body or a state organisation responsible for caring for an individual who may be deprived of his liberty, ignores that person’s family at its peril.
Of similar importance is the clarification of the role of the supervisory body in relation to applications for Authorisations under the Deprivation of Liberty Safeguards Procedure. Those safeguards must be obtained in accordance with the procedure set out in Schedule A1 to the Mental Capacity Act. The procedure is complex and requires six assessments to be undertaken. Paragraph 50 of the Schedule provides that a supervisory body must give a standard authorisation if all the assessments are positive.
On the face of it, this suggests that the supervisory body has a passive role, akin to rubber stamping the findings of the assessors. The judge in the Neary case clarified that this is not so. He said that:
“The suggestion that the supervisory body is bound to act on any assessment that is not grossly and obviously defective sets the standard too low. It supposes an essentially passive supervisory body. This would not meet the objectives of the Act and would not provide effective protection against breaches of Article 5”.
The obligation of a PCT which receives an assessment which it knows, or ought to know, is inadequate is firstly not to follow the recommendation made. Secondly it should take all necessary steps to remedy the inadequacy. If necessary this should include bringing the deprivation of liberty to an end by conducting a review or applying to Court.
This brings the role of the supervisory body closer to that of Mental Health Act Managers. One of the criticisms of the Deprivation of Liberty Safeguards procedure was that it was all procedure and no safeguards. This case has gone some way to addressing that criticism, but the procedure is still a long way from the detailed provisions set out in the Mental Health Act. PCTs will need to review their practices in dealing with applications for Authorisations, including separating functions within their organisations and ensuring that where papers are received they are proactively considered.
Practice issues for those working in the field
In his judgment in paragraph 33, Mr Justice Peter Jackson identified three practice points for those working in the field:
- "The purpose of DOL authorisations and of the Court of Protection: Significant welfare issues that cannot be resolved by discussion should be placed before the Court of Protection, where decisions can be taken as a matter of urgency where necessary."
- "Decision-making.: Where a local authority wears a number of hats, it should be clear about who is responsible for its direction."
- "The responsiblities of the supervisory body: The responsibilities of a supervisory body, require it to scrutinise the assessment it receives with independence and a degree of care that is appropriate to the seriousness of the decision and to the circumstances of the individual case that are or should be known to it. "
In addition Mr Justice Peter Jackson found :
- an IMCA should have been appointed in April 2010. LB Hillingdon should have persisted in obtaining one for Steven Neary;
- there was no effective review;
- the local authority had an obligation "to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court."
How we can help
Mr Justice Jackson quite rightly noted that "Anyone who believes that the work is simple and the right decision's always obvious is mistaken." At Bevan Brittan we have significant experience in advising on mental health issues. We can also provide specific training on the Mental Capaicty Act and the Deprivation of Liberty safeguards.