by Allan Norman, Principal Social Worker & Solicitor at Celtic Knot (www.celticknot.org.uk), an independent law firm and social work practice.
No freeman shall be taken or imprisoned, or disseised of his freehold, or liberties, or free customs, or outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land”
…says Magna Carta, originally signed by King John at the instigation of his Barons. And let’s face it, 800 years ago, the many and nefarious ways in which people could be made to disappear without accountability was something of a problem.
Three judgements in a week have now found unlawful deprivations of liberty of people with mental capacity issues. The first of the three expressly mentions Magna Carta:
- London Borough of Hillingdon v Neary & Anor  EWHC 1377 (COP) (09 June 2011); and
- Cheshire West and Chester Council v P & Anor  EWHC 1330 (Fam) (14 June 2011); and
- C, R (on the application of) v A Local Authority & Ors  EWHC 1539 (Admin) (16 June 2011)
But I am afraid there is a common thread apart from recognition of the difficulty of work in this area. It is that the manifold devious ways in which attempts are made to deprive of liberty without proper scrutiny are still a problem, 800 years after Magna Carta.
Method 1: ‘He will be released after the Yuletide feast’
It is well known and covered in many commentaries that in Steven Neary’s case, Hillingdon told his father one thing, while secretly pursuing an undisclosed plan that was completely different, e.g. paragraph 54ff.
Method 2: ‘See, he is in our custody but he is not in chains’
In the Cheshire West case:
“an extraordinary incident occurred which fundamentally affected the course of these proceedings. A member of staff at Z House drew to the attention of the local authority the fact that, following the hearing, A and at her instigation other members of staff had altered a number of records concerning P’s care and treatment.”
This incident ultimately led to additional hearings, the naming and shaming of the local authority concerned, and an adverse costs order.
Method 3: ‘I have handed him over to my brother Baron’
The case of C has the most interesting twist in the tail. In terms of submission to “the law of the land”, it is perhaps a little disappointing that “the involvement of the court had never been contemplated” (para 23) until, it seems, the local authority were on notice of a proposed judicial review.
But thereafter, the case appears to have proceeded with full judicial oversight until the final, astonishing postscript:
“Afternote: at a subsequent hearing the court approved the new healthcare placement for C. Thereafter, and without reference to the court or to any expert who knew anything of C’s circumstances, he was removed from the school by an authorisation made under section 2, Mental Health Act 1983 in circumstances which are not yet clear. As a consequence, proceedings continue.”
Of course, we don’t yet know what happened. Of course, the possibility of Mental Health Act proceedings is always in the background in cases where mental health and mental capacity issues interact. Of course there may have been a sudden deterioration in his mental health to justify him being sectioned.
And yet – this young man was not someone living at home; he was already in the care and effectively total control of the state; And yet – he was sectioned for assessment (this is what section 2 signifies) after the High Court had already approved his health care placement. And yet – despite section 2 expecting the involvement of a medical practitioner with “previous acquaintance with the patient” (section 12(2) of the Act), somehow this did not happen. And yet – were none of those involved in the decision to section made aware that he was already under the protective supervision of the High Court? It looks like there are questions requiring answers, and it looks like the court thinks so too.
Given my two opening gambits – that the court’s scrutiny of deprivation of liberty is at least 800 years old, and that the court is not unsympathetic to our task in these circumstances – it is all the more astonishing to find that there is a common thread in these three cases of apparent subversion or avoidance of the court’s proper scrutiny.
But – for these three at least – it is reassuring to see the court not only ruling on the lawfulness of the deprivations, but also drilling down into the dark places to let judicial light shine on wrongdoing.
Long live Magna Carta!