A young autistic man, Magna Carta, human rights and unlawful detention

16 June 2011 by Alasdair Henderson

Neary and his father

London Borough of Hillingdon v. Steven Neary [2011] EWHC 1377 (COP) – read judgment here.

The Court of Protection (“COP”) emphatically ruled last week that a local authority unlawfully detained a young man with autism and learning difficulties for almost an entire year, breaching his right to respect for family life as a result. 

Take a 21-year-old disabled person, the Mental Capacity Act 2005, a devoted father and an adversarial social care department. Mix in centuries-old principles laid down in Magna Carta, recent case-law on Article 5 and Article 8 of the ECHR, and some tireless campaigning by legal bloggers. The result? A landmark decision on the use of deprivation of liberty (“DOL”) authorisations in respect of individuals without full legal and mental capacity.

Steven Neary, who has childhood autism and a severe learning disability, requires constant supervision and support. Since 2009 he has lived with his father, Mark Neary, who looks after him with the help of an extensive care package provided by the local authority. In December 2009 Steven became more difficult to handle than usual and Mr Neary was ill. It was therefore agreed on 31 December 2009 that Steven would go to a support unit for a few days so that his father could have some rest. It was this point that the problems started…

A ‘Kafkaesque nightmare’

The staff of the support unit had problems looking after Steven and held a meeting on 4 January 2010 where they decided that Steven should be kept at the unit for longer so that they could assess his needs. This was not fully explained to Mr Neary, who thought Steven would be coming home very soon. Steven badly wanted to go home and as a result his behaviour deteriorated, which was taken by the staff as evidence that he posed a danger to himself or others and should be kept at the unit. Mr Neary made it very clear that he did not consent to Steven remaining at the support unit and asked that he be returned home, but his requests were not heeded. This stalemate continued and time passed until April 2010 when Steven attempted to leave the unit and broke the glasses of a passer-by in the process.

As a result of this incident, the local authority signed an urgent DOL authorisation allowing Steven to be kept at the support unit for seven days without any outside activities. On 21 April, after a ‘best interests’ assessment, the local authority made a standard DOL authorisation, which allowed Steven’s detention for two months.

When Mr Neary was told about the DOL order he was understandably very upset, but he still wasn’t told that the local authority were now planning to keep Steven in the support unit or a similar location indefinitely and not allow him to return home. Mr Neary was still under the impression that there was a ‘transition plan’ to ensure Steven got back home relatively soon.

More time passed, and a second DOL authorisation was made on 21 June. Throughout all of this Steven did not have any independent representation and neither did Mr Neary. On 7 July Mr Neary was finally told that the local authority did not intend to return Steven home, to his shock and alarm. His concern was increased even further when it seemed that the local authority were considering a residential placement for Steven many miles away.

Despite long letters of complaint being sent by Mr Neary and Mrs Neary (Steven’s mother) the local authority decided in August 2010 that it would issue court proceedings to obtain permission to detain Steven for longer. These proceedings were not, in fact, issued until 28 October 2010, by which time Steven had been at the support unit for 10 months.

By December Steven’s case had been taken up by at least one blogger, who had some success in getting his predicament wider publicity. Mr Justice Mostyn heard the case on 23 December 2010. He promptly terminated the DOL authorisation and returned Steven to his home, almost 12 months after he left “for a few days”.

The ruling

Mr Justice Peter Jackson had to determine whether the long, complicated series of events described above constituted unlawful detention and breach of Steven’s rights to private and family life. He had no difficulty in holding that it did, on the basis of both long-standing common law principles and human rights grounds.

Common law/summary

Jackson J referred first to a “basic legal principle found in an era long before the invention of local authorities as we know them” – chapter 29 of Magna Carta 1297, which provides “no freeman shall be taken or imprisoned or disseised of his…liberties…but by lawful judgment of his peers or by the law of the land“. Jackson J went on to declare that this fundamental constitutional right:

…will certainly not lose its importance in the field of adult social care, with an ageing population increasing the responsibilities of families and the State. Decisions about incapacitated people must always be determined by their best interests, but the starting point is their right to respect for their family life where it exists. The burden is always on the State to show that an incapacitated person’s welfare cannot be sustained by living with and being looked after by his or her family, with or without outside support.

The local authority argued that Steven was not deprived of his liberty from January to April 2010, a submission which Jackson J gave short shrift to. The local authority then argued that from April to December 2010 the DOL authorisations clothed the detention in legality. Jackson J was entirely unconvinced by this as well, holding that:

The authorisations relied upon were flawed, and even if they had been valid, they would not in themselves have amounted to lawful authority for keeping Steven at the support unit. It follows that Hillingdon had no lawful basis for keeping Steven away from his home between 5 January 2010 and 23 December 2010. The fact that it believed that it was acting for the best during that year is neither here nor there. It 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 upon 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.

Articles 5 and 8

Jackson J devoted the vast majority of his reasoning to Article 8 and Article 5 of the ECHR. In respect of Article 5, he considered Schedule A1 of the Mental Capacity Act, which allows the managing authority of a care home to lawfully deprive a resident of their liberty if an urgent or standard DOL authorisation is in force. For a DOL authorisation to be made it must be assessed as in the best interests of the resident, which requires four conditions to be met, including that it is necessary and proportionate to detain. The assessment must take into account the wishes and feelings of the resident and consultation with family. Jackson J held that the assessments in Steven’s case had been deeply flawed and thus that there was no lawful detention, in breach of Article 5(1) (the right not to be unlawfully detained). He further held that the long delay in reviewing the DOL authorisation and bringing court proceedings meant that there was a breach of Article 5(4) (the right to a speedy review of your detention).

In respect of Article 8, Jackson J held that the local authority’s lack of communication of its real intentions to Mr Neary, failure to have any proper regard to the importance of Steven’s right to family life and failure to take seriously Mr Neary’s concerns demonstrated that there had been a breach. The local authority came in for particular criticism for its failure to apologise to Mr Neary or Steven, and for a three-page briefing note it circulated to the national media on the day before the hearing. This press release was described by Jackson J as “a sorry document, full of contentious and inaccurate information, and creating a particularly unfair and negative picture of Steven and his behaviour“.

Where do we go from here?

The COP has come in for its fair share of criticism, particularly for its ‘secrecy’ (i.e. default position of hearings in private). However, this was an emphatic decision in favour of incapacitated persons and their families. Jackson J was at pains to point out, and so it should be repeated, that this ruling is in the context of a local authority which works with some 1300 adults with disabilities – difficult, complex work which for the most part is carried out well and without any public recognition. Jackson J also made it clear that “everybody concerned has genuinely wanted to do the right thing by Steven at all times…the problems arose from misjudgment, not a lack of commitment.”

That said, Jackson J did set out three general issues that arise from this case, in summary:

(1) The DOL scheme is an important safeguard against arbitrary detention and is not to be used by a local authority to get its own way. Any significant welfare issues that cannot be resolved by discussion should be taken before the COP.

(2) Local authorities need to make sure they have clear decision-making processes in place – in this case no-one took ultimate responsibility.

(3)  There needs to be separation between the managing authority and supervisory body in making DOL authorisations, and the supervisory body must conduct a full best interests assessment, not a superficial one.

A final word on press coverage – this ruling was extensively covered last week by the mainstream media, with some newspapers taking a lot of credit for opening up the workings of the COP to scrutiny.

Credit should be given where credit is due, but in this case that is not primarily to the national newspapers, who jumped on the bandwagon rather late in the day and which have to a large extent failed to distinguish between most COP cases which are justifiably held in private and those with genuine matters of public interest at stake. Rather it should be given to those bloggers – notably Anna Raccoon – and local newspapers who sought to draw attention to the injustice of Steven’s situation, and most of all to Mr Neary himself, who was praised by Jackson J for his devotion to his son and quiet, tenacious presentation of his case.

• Balancing transparency with ‘secrecy’ in the Court of Protection – Lucy Series
• Are we truly free?
• Rights breach council must pay out