cheshire west and chester - ben troke - december 2011
DESCRIPTION
Ben Troke delivers this session on the Cheshire West and Chester, looking at the background, judgment and implications going forward.TRANSCRIPT
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
