cheshire west and chester - ben troke - december 2011

Back before Bournewood?

• Cheshire West and Chester

• implications

• conclusions & questions

39 year old man

placed by LA in a group home –

Z house

cerebral palsy,

down’s syndrome

lacking capacity for care

and accommodation

use of restraint / body suit

“a Judge has a feel of a case the Court of Appeal

cannot hope to replicate” and would only

intervene if the Judge had done something

“seriously wrong”

Court of Appeal found Judge had not done

anything “seriously wrong” and so upheld

Court costs decision

• 14 June 2011

• costs order against LA, despite prompt

application, due to

- employee misleading the court under oath

- tampering with records “unquestionably an

act intended to pervert the course of

justice”

- LA named and shamed

“a Judge has a feel of a case the Court of Appeal

cannot hope to replicate” and would only

intervene if the Judge had done something

“seriously wrong”

Court of Appeal found Judge had not done

anything “seriously wrong” and so upheld

Court costs decision

• is it a DOL ?

• most normal life possible?

BUT

• life completely under control of staff

• intrusive procedures

• judgment published 9 November 2011

• Lord Justice Munby (+ Lloyd and Pill LJJ)

• one question – is this a DOL?

• answer – No!

• ‘purpose’ (aim / reasons / motive / good intentions)

• ‘relative normality’ (or the ‘comparator’)

“Purpose”

P is not ‘the man on the Clapham Omnibus’

‘some adults are inherently restricted by their circumstances’

appropriate contrast is with ‘the kind of lives that people

like [P] would normally expect to lead’

P’s life at Z house is

"the inevitable corollary of his

various disabilities"

and

“dictated by his

disabilities and difficulties”

the reality is that P was “living a life which is as

normal as it can be for someone in his situation”,

and therefore he was not being deprived of his liberty

Spectrum of

situations Family home

- unlikely to be a DoL

Institutional

setting Clarity ?

•

• no DOL = NO PROCESS

BUT

• wise to use CoP / DOLs process to review

“the court will be able to deal with most cases of this

type fairly but at the same time simply and

quickly… on the basis that there is no deprivation

of liberty"

placed at care home by

parents and LA

17½ year old girl, autism,

ADHD, LD

“serious aggressive and self

harming behaviour”

“supervision that is supplied is understandably

necessary to keep her safe and discharge the duty of

care”

High Court

21 December 2010

“the restrictions were no more that what was

reasonably required to protect RK from harming

herself or others”

Court of Appeal

30 November 2011

• www.mentalhealthlaw.co.uk

• http://www.bailii.org

• www.communities.idea.gov.uk/welcome.do

• www.law-less-ordinary.com

• www.brownejacobson.com

• www.bjlegaltraining.com

Ben.troke@brownejacobson.com

0115 976 6263