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Regulating interferences with the human rights of vulnerable adults

Our People - Maria Nicholas
19 April, 2013

If someone is deprived of their liberty and this is authorised by the Court of Protection, is up to the care home or hospital in question to determine how, or if, to regulate any restrictions on that person.

It will be surprising to most that currently there is no legislation or statutory guidance which sets out how mentally incapacitated people subject to restrictions which interfere with their Article 8 right to family life, privacy, home life and correspondence, but who are not detained under the Mental Health Act 1983, should be protected.

In the case of J Council v GU & Ors [2012] EWHC 3531 (COP) GU, known as “George” in the judgment although that is not his real name, was subject to a number of restrictions on his private life, including monitoring of his correspondence, listening to his telephone calls, and occasionally strip searching him and/or searching his room. George is 57 years old and lives in a care home. It was agreed by all parties that he is deprived of his liberty, and that this is in his best interests. George is described as an individual with a number of mental health conditions, and he is assessed as presenting a risk to others, in particular to children. This is the reason for the restrictions being imposed. The need for the restrictions was not disputed but the Official Solicitor, who acted as George’s litigation friend as he did not have capacity to instruct a solicitor himself, was concerned that there were insufficient safeguards in place and that the restrictions were not validated or overseen by any state body.

The Official Solicitor therefore proposed that there be a detailed policy for monitoring and reviewing of the restrictions on George, to be overseen by George’s NHS Trust and the Care Quality Commission (CQC).

The parties were able to agree a detailed 52 page policy arrangement, which will be periodically reviewed by the NHS Trust. The Trust will receive monthly reports and is to scrutinise any incident forms it is sent. The CQC is to obtain advice from an appropriate expert regarding George’s care, and it is to case track George when reviewing the care home generally. As George’s deprivation of liberty has been authorised by the Court, the Court will also carry out annual reviews to ensure the deprivation continues to be in George’s best interests.

Mr Justice Mostyn stated at paragraph 20 of his judgment that “where there is going to be a long-term restrictive regime accompanied by invasive monitoring of the kind with which I am concerned, it seems to me that policies overseen by the applicable NHS Trust and the CQC akin to those which have been agreed here are likely to be necessary if serious doubts as to Article 8 compliance are to be avoided.”

Further at paragraph 21, that “all this debate would become empty were Parliament or the Executive or the CQC to promulgate rules or guidance to cover the situation which I have here. It is hard to understand why there are detailed statutory provisions relating to personal searches and telephone and correspondence monitoring for high security mental hospitals but none at all for private care homes.”

For the time-being, policies for significant interference with a person’s Article 8 rights or invasive monitoring such as in George’s case, will continue to be dealt with on an ad hoc basis unless and until Parliament addresses this issue.

However, George’s case shows that even though not required to, care homes or hospitals should be putting in place policy arrangements to regulate and monitor restrictions on vulnerable adults. These in turn should be overseen by the local authority or NHS Trust in question and the CQC. Failure to do so could prompt an application to the Court of Protection to order that this is done.

See http://www.bailii.org/ew/cases/EWHC/COP/2012/3531.html for the full judgment.

Head of Court of Protection
Maria Nicholas is a Solicitor and Director at GN Law, and the Head of the Court of Protection and Community Care Departments. Maria advises on issues of mental capacity, best interests, deprivation of liberty and all aspects of community care law.

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