J Council v GU and others  EWHC 3531 (COP) – Read judgment
On 11 December 2012 Mr Justice Mostyn handed down judgment in J Council v GU and others  EWHC 3531 (COP) approving arrangements aimed at safeguarding the Article 8 (private and family life) rights of a 57 year old man detained under the Mental Capacity Act 2005 in a private care home. At seven pages, the judgment was admirably concise.
The detained man concerned, referred to in the judgment as George, suffered from a number of separable mental disorders: childhood autism, obsessive-compulsive disorder, dissocial personality disorder, mixed anxiety disorder and paedophilia. He lacked the capacity to litigate or to make decisions concerning his care needs (including where he lives), medication he should take, contact he should have with others and about his finances, property and affairs. It was likely that this incapacity would continue, possibly for the remainder of his life. He lived in a private care home and it was agree by all, including the Official Solicitor (who represented George in the proceedings) that it was in his best interests for him to remain living there indefinitely. Furthermore, he should be subjected to restrictions in relation to his contact with others and correspondence in order to minimise the risks that he presented.
The issue that arose was how to make sure that the restrictions placed on George freedom to maintain private correspondence amongst other things, which amounted to interference with his Article 8 rights, had a sufficiently authoritative basis and were sufficiently detailed in the scope of their safeguards (relating to reviews and oversight by a supervisory body) so that they could comply with the requirement of Article 8 that such restrictions be in accordance with the law.
Restrictions of the kind involved (searches, monitoring of phone calls and letters), if George had been detained in a high security psychiatric hospital, would have been the subject of detailed procedures and safeguards prescribed in primary or secondary legislation. In contrast, there are no equivalent detailed procedures and safeguards for persons detained pursuant to orders made under the MCA 2005.
The Official Solicitor, on George’s behalf, was concerned as to the absence of sufficient clarity, safeguards and oversight in the restrictions placed on George to date. It was therefore agreed that a detailed policy arrangement should be formulated which would be overseen by both the NHS Trust and the Care Quality Commission. The resulting 52 page document set out the arrangements in terms of personal and room searches and the monitoring of telephone calls and correspondence and their review by the relevant bodies. There would also be annual review by the court of the arrangements in so far as they constituted a deprivation of liberty.
Mostyn J gives clear encouragement to Parliament or government by means of primary or secondary legislation to plug the gap identified by this case in relation to the protection of Article 8 rights of those detained in private care homes. He also makes a plea for the avoidance of “alphabet soup” in the anonymisation of cases before the Court of Protection, suggesting that in so far as such cases are heard in private, the court file is, absent an order of the court, closed to strangers and therefore there is no reason to anonymised the parties within court documents. Anonymisation within the publicly available judgments of the court would however be unaffected.
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