On 11 December 2012 Mr Justice Mostyn in the Court of Protection handed down judgment in a case he described as “a sad story”.
GU, known for the purposes of the judgment by the pseudonym “George”, is a 57 year old man with a number of distinct mental disorders: Childhood autism, obsessive-compulsive disorder, dissocial personality disorder, mixed anxiety disorder and – of most pressing concern to the Court – paedophilia.
The Court heard during the hearing on 6 December 2012 that George’s paedophilia manifests itself in some worrying ways. Amongst them, he compulsively writes letters describing sexual fantasies involving children and in the past has left such letters in places where children could find them (such as in supermarket toilets).
George is accepted as lacking capacity and therefore was placed in a private care home in November 2007 where he still resides in circumstances which amount to a deprivation of his liberty. In order to prevent George from indulging his paedophilic tendencies (for example by leaving sexually explicit letters in public places), significant interferences with George’s rights have been put in place: For example he is sporadically strip-searched, his correspondence is monitored and he is not allowed to use the telephone without there being somebody beside him to listen in to the call.
Findings in the Court of Protection
In the Court of Protection it was not disputed that the regime George lives under is compatible with Article 5 of the European Convention on Human Rights: After all, Article 5 (1)(e) makes a specific exception to the right to liberty in cases where someone is, like George, of unsound mind.
More problematic for the Court, however, was Article 8: The right to respect for a person’s private and family life, his home and his correspondence. The jurisprudence of the European Court of Human Rights has explicitly confirmed that the sorts of restrictions that apply in this case amount to interferences with a person’s private life (per Wainwright v UK (2007) 44 EHRR 40, Liberty v UK (2009) 45 EHRR 1, Herczegfalvy v Austria (1992) 15 EHRR 437 and Nowicka v Poland  1 FLR 417.)
Article 8(2) of the European Convention mandates that any interference with a person’s Article 8 right must be “in accordance with the law”. The Strasbourg Court decided in Herczegfaly v Austria that whether an Article 8 interference is “in accordance with the law” comprises a number of aspects:
i) Whether the interference has a basis in national law;
ii) Whether the legal measure is accessible to the person concerned;
iii) Whether that person could have foreseen the consequences of the legal measure;
iv) Whether the measure is compatible with the rule of law (specifically whether there is a degree of protection in national law to prevent arbitrary Article 8 interferences).
Therein lay the problem facing the Court of Protection in George’s case. If George were being detained in a high security psychiatric hospital, the intrusions into George’s liberty would each have had a clear basis in English law, with a range of detailed procedures and safeguards to protect George from arbitrary interferences with his human rights. Detailed procedures and safeguards regulate strip-searching and monitoring phone calls (under the Safety and Security Directions 2011) and monitoring of correspondence (under the Mental Health Act 2007).
Perhaps surprisingly, there exist no such procedures and safeguards to protect those who are detained in accordance with the Mental Capacity Act 2005.
To try to put the matter beyond doubt, the parties in George’s case (namely the local authority, the Official Solicitor, the local NHS trust, the CQC and the private care home where George lives) collaborated in drawing up 52 pages of highly detailed policies and procedural protections to regulate the interferences with George’s rights, including periodic and regular reviews by the NHS trust and the CQC in specific circumstances.
The care home and the local NHS trust told the Court of Protection that they were agreeing to such measures “out of benign concern for George” and they argued against any legal precedent being set by such an approach. Mr Justice Mostyn, however, went on to make some general observations which, he acknowledged, will have ramifications beyond the specific facts of this one case.
Mr Justice Mostyn observed that not every case involving an interference with a person’s Article 8 rights will require detailed policies and safeguards to be drafted. Indeed where a one-off incident is in issue (for example the authorising of a surgical operation for a person lacking capacity), such an approach would be excessive to say the least – a simple order from the Court of Protection will do.
However Mr Justice Mostyn went on to hold that:
“[W]here 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.”
A warning to local authorities
The decision serves as a warning to local authorities, NHS trusts and to all parties concerned with cases of deprivation of liberty. If they are going to protect themselves against accusations of violating a person’s Article 8 rights when an intrusive package of measures is introduced as part of a person’s deprivation of liberty, significant work will be demanded of them not only in drawing up detailed policies and procedures to safeguard that person’s interests but also in implementing those policies and procedures.
The approach endorsed by the Court of Protection in this case will demand a considerable degree of collaboration between the various bodies concerned with a person’s deprivation of liberty: their private care home, the local authority, the local NHS trust and the CQC. The difficulties, misunderstandings and breakdowns in communication which can arise when different bodies are required to work together to coordinate a person’s well-being will be all too familiar to those experienced in community care work. The judgment in J Council v GU is a reminder that such bodies will fall short of the mark at their peril; the prospect of a finding that they have violated a vulnerable person’s Convention rights is a real one.
Implications of the judgment
Time will tell what practical effect the Court of Protection’s judgment in J Council v GU will have. The risk of it increasing the bureaucratic workload of already hard-pressed public bodies is evident. However that may prove a necessary price to pay to protect the most vulnerable people in society from being denied their basic rights.
At the conclusion of his judgment, Mr Justice Mostyn delivers a strongly worded hint that it is time for primary or secondary legislation or formal guidance to step in and regulate deprivations of liberty in private care homes in cases such as this, stating:
“Of course 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.”
Mr Justice Mostyn went on to state what was perhaps the most pressing point arising from this case:
“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.”
Whether Parliament, the Executive or the CQC will now take up the mantle and introduce such measures for private care homes remains to be seen. Certainly this “sad case” demonstrates the need and the Court of Protection’s invitation could not have been more clear.
For more information on this case, please refer to the judgment in J Council v GU & Ors (Rev 1)  EWHC 3531 (COP) (11 December 2012) .