The right to family life and liberty of persons affected by disability

London Borough of Hillingdon v Neary & Anor [2011] EWHC 1377 (COP) (09 June 2011)

Summary

In this case, a 21 year old man with autism and severe learning disabilities who was institutionalised, rather than being permitted to return to his home under the care of his father, has been held to have been deprived of the right to liberty and family life. The England and Wales High Court has ruled that that the public authority who kept the man in a care facility for nearly a year, did so unlawfully.

Facts

As a result of his autism, Steven Neary requires routine care and becomes highly anxious if unprepared for change of any kind. He needs constant adult supervision and care for his safety and that of others, as he may sometimes “lash out, not in malice but rather in the manner of a small child.” His father, Mark Neary, is Mr Neary’s primary care-giver and a dedicated single parent, who was supported by daytime carers funded by the Borough of Hillingdon.

For the most part, Mr Neary resided at his family home, with the exception of a short stay in a support unit in 2008. During the 2009 Christmas period (a particularly difficult time for Mr Neary  because a number of changes need to be made to his routine, as a result of closures of facilities which he usually frequented), his father sought the assistance of Hillingdon, as Mr Neary  was particularly unsettled. Mr Neary was taken into respite care. At the outset, this was intended to only last for a few days to allow his father to recharge himself, however, Hillingdon made the unilateral decision to extend Mr Neary’s institutionalisation indefinitely, concerned about his weight gain and behaviour. In December 2010, a year after having been kept at the facility by Hillingdon, Justice Mostyn, on the application of Mr Neary’s father, made a ruling that Mr Neary should be returned home.

The current case arose out of claims made on behalf of Mr Neary, supported by his father, that Hillingdon’s actions were unlawful.

Decision

The central issue for determination by Justice Jackson was whether Hillingdon violated Mr Neary’s right to family life and deprived him of his liberty, in contravention of arts 8 and 5 of the European Convention on Human Rights (ECHR).

Hillingdon contended that it had acted in Mr Neary's best interests. Justice Jackson rejected Hillingdon's arguments that it had his father’s consent to Mr Neary institutionalisation during the period of January to April and found the deprivation of liberty (DOL) authorisations that had been granted by Hillingdon, under the Mental Capacity Act 2005, to legitimise its own actions were invalid. Ultimately, the Court found that Hillingdon had unlawfully kept Mr Neary away from his home and had deprived him of his liberty and the right to family life.

Two principles are relevant. It is settled law that actions may be taken by public authorities and families together, after a careful consideration of the best interests of an incapacitated person, and that such actions, which are regularly undertaken, involve no breach of an incapacitated person’s rights. Where there is a DOL, statutory safeguards exist to provide protection. In cases of disagreement, where a local authority seeks to compel, coerce or restrain, with the exception of an emergency, such actions must be endorsed by a specific statutory code, or the public body must obtain the sanction of the court.

In the present case, far from being a safeguard, Justice Jackson found that “the way in which the DOL process was used masked the real deprivation of liberty, which was the refusal to allow Steven to go home.” The fact that Hillingdon formed a view that it was acting in Mr Neary’s best interests was “neither here nor there.” As Justice Jackson articulated, where a supervisory body “grants authorisations on the basis of perfunctory scrutiny of superficial best interests assessments, it cannot expect the authorisations to be legally valid.”

Moreover, the Court also found that by failing to:

• refer the matter to the Court of Protection;
• appoint Steven with an Independent Mental Capacity Advocate; and
• conduct an effective assessment of the DOL best interests evaluations (Part 8 of the Mental Capacity Act 2005),

Hillingdon had breached Article 5(4) of the ECHR, depriving Mr Neary of his right to a speedy determination of the lawfulness of his detention, the onus being on public authorities to refer DOL cases to the relevant Court, and it being insufficient to rely on an incapacitated person, or their family members to enforce such rights.

Justice Jackson also made a number of cautionary statements about:

• the need to expediently bring matters before the Court of Protection, where welfare issues cannot be resolved by discussion between the parties; and
• the need for accountability in relation to decision making.

Right to family life and the deprivation of liberty

Justice Jackson considered the right to family life formed the “nub” of the proceedings. This was not to say that the deprivation of Mr Neary’s liberty was an insignificant issue, but rather that the question of where he should be residing ought not be conflated with whether he was unlawfully detained.

The requirement to respect a person’s right to family life in the arena of adult care is well settled and enunciated in a number of UK and European statements of principle. Citing a number of authorities, Justice Jackson commenced his analysis with the established principle that mentally incapacitated adults are better off living with family, rather than being institutionalised and family life should not be lightly be interfered with. If a public body seeks to remove such a person from their family, this must only be done in circumstances where the state care will be of a better standard to that which the person has been receiving at home.

In the present case the following factors were key to the Court’s finding that Mr Neary’s right to family life had been violated:

• Hillingdon did not consider the disadvantages to Mr Neary of living away from his family;
• there was no genuine attempt made by Hillingdon to undertake a balanced best interests evaluation;
• the approach taken by Hillingdon was aimed at preventing appropriate scrutiny of the situation - the father’s opposition to Mr Neary’s institutionalisation was overborne by turning a deaf ear to his objections and suggesting that financial support of Mr Neary at home could potentially be withdrawn if he did not acquiesce;
• the DOL authorisation utilised to restrict Mr Neary’s freedom and activities were not defensible on the evidence available to Hillingdon. Steven was, as a result of these authorisations, deprived of participating in activities that were significant to him and holidays with his father

Justice Jackson also ruled that Mr Neary had been deprived of his liberty. He canvassed a number of reasons to support this ruling. Key to his decision were the following factors:

• Mr Neary’s objection to being at the support unit;
• Mr Neary’s father’s objections to Hillingdon’s actions; and
• the “total effective control of Steven’s every waking moment, in an environment that was not his home.”

Justice Jackson was troubled by the extremely disquieting proposition that Mr Neary may have “faced a life in public care, that he did not want and does not need,” as it was Hillingdon’s ultimate plan to transfer him to a long term facility outside of London, potentially causing irreversible harm to his close relationship with his father and family ties. With this background in mind, the Court commended the actions of Mr Neary’s father who did not give up, “in the face of such official determination” regarding the best interest’s of his son and his care.

Relevance to the Victorian Charter

Justice Jackson’s ruling in Hillingdon v Neary provides a comprehensive discussion of the right of individuals affected by disability to liberty and private life, and the obligations of public authorities who seek to impose restrictions on such individuals in pursuit of their best interests.

The treatment of the issues in this case is balanced and cognisant of the complex social and psychological interplay between family and public welfare authorities in this arena and the intricacies associated with care-giving. The case is welcomed as a highly valuable piece of comparative jurisprudence, which provides guidance to both public authorities working in this sector and practitioners seeking to represent individuals whose rights are at risk of being contravened.

In the Victorian context, ss 13 and 21 of the Charter are most relevant to the issues canvassed in Hillingdon v Neary. Section 13 of the Charter provides that a person has the right not to have their family arbitrarily interfered with, and section 21 enshrines an individual’s right to liberty, whereby a person must not be arbitrarily detained except on grounds and in accordance with procedures established by law.

The decision is at http://www.bailii.org/ew/cases/EWHC/COP/2011/1377.html.

Alysia Abeyratne is a Solicitor with the Human Rights Law Group at Mallesons Stephen Jaques.