DEPRIVATION OF LIBERTY AND THE MENTAL CAPACITY ACT 2005

Abstract

E, a young man born in 1990, suffered from tuberous sclerosis, a rare and complex genetic condition, which had caused him to have a severe learning disability and physical difficulties. He has been cared for by F for over ten years, initially under a foster care arrangement under s 20 of the Children Act 1989 and then by way of an adult placement. During this time, it was accepted that E had generally been well cared for by F, was happy in her home, and that he had been treated as a member of her family. However, there had been some disagreement between E's school and F about the management of E's behaviour, which could be very challenging, and in the spring of 2009, a ‘safeguarding adults’ referral had been sent from the school to the local authority, Manchester City Council.1 The local authority moved E into respite care whilst the safeguarding referral was being investigated, with E residing initially at an emergency respite unit and subsequently at a residential unit. A number of strategy meetings were held, at which F was neither present nor invited. Moreover, these meetings did not consider whether the Deprivation of Liberty Safeguards (DOLS) under the Mental Capacity Act 2005 (MCA) were applicable in respect of E's care. F was told that E would not be returning to her home and the local authority subsequently recommended that E remain at his residential unit. An application to the Court of Protection was issued on behalf of G, E's sister, asking the court to determine issues relating to the management of E's care. These included a determination of: E's capacity; the lawfulness of E's placement in the residential unit; the extent of his contact with G and F; whether E had been unlawfully detained in breach of Article 5 of the European Convention of Human Rights (ECHR), the DOLS and/or Article 6 ECHR; and whether his Article 8 ECHR rights had been infringed.