First published CoP DoL Case Post AGNI (to my knolwedge)

Law and practice Mental Capacity Act
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Here is the link to the recent Oxfordshire County Council v P - Find Case Law - The National Archives Court of Protection case… I personally found most ‘interesting’ paragraphs 16 and 17 which is the analysis as to why the Court believes P is objectively ‘confined’:

  1. The first issue I have considered is whether P’s current or future living and support arrangements amount or would amount to a deprivation of her liberty. Factually there is little dispute about the arrangements and restrictions placed on P in her current placement or, in fact, if she were to move to live with G. Her current placement is supported living rather than a secure residential unit, but still involves locked external doors, sensors on the front door and bedroom doors, window restrictors and P is not free to leave unless accompanied by one-to-one support which she requires for all outings, appointments and journeys (B271, B273, B274). She can perform some basic tasks for herself within the placement, such as getting herself breakfast at times, and does not need waking support overnight but overall, her needs are such that she requires 35 hours of one-to-one support each week. As was submitted by Ms Fox for the OS, it is arguable that the current placement allows P some sense of relative normality because she can go on regular outings and attend local clubs. Physically the property also has an appearance of relative normality a world away from a prison facility (B87-B91 photographs of the placement). However, I agree with Ms Fox’s summation that P is, in reality, subject to ongoing supervision and unable to leave the placement without support in place. To some extent, that overall position would be little different at G’s house. Locked external doors are not uncommon in private residences at night or even during the day sometimes, and G’s evidence to me was that she accepted that P would need support to leave her home beyond going into the garden and, even then, G would check on her. Sensors are not present at G’s home as far as the evidence shows, nor are there window restrictors in place at present, though the risk assessment by the ASW in the shadow care and support plan were P to return to live with G notes that these would be required (B632). There is thus a minor qualitatively lower level of environmental restrictions potentially in place at G’s house for P.
  2. Neither placement option requires any level of chemical restraint nor physical restraint of P. However, objectively P is not free to leave either her current placement or G’s house when she chooses and would be subject to a high level of supervision in either placement as evidenced by the proposed package of support in the shadow care plan. These are factors which would point towards the conclusion that she is not able to exercise her autonomy freely in either placement and thus may be deprived of her liberty notwithstanding that both placements are further removed from the paradigm of a prison cell identified in AGNI, and thus closer to relative normality.

The judgment goes on to explain that "the main issue about deprivation of liberty [in the case] is P’s consent or lack of consent", which is explored further in the judgment.

Personally, i am most interested in the determination that the arrangements indicate confinement. What are others views on the conclusions reached? Although not having all the facts, the judgment explains that there is, no chemical restraint, no physical restraint, no objection from P, that “both placements are further removed from the paradigm of a prison cell identified in AGNI, and thus closer to relative normality.” and “Physically the property also has an appearance of relative normality a world away from a prison facility” (para 16), no evidence that P sees the restrictions as ‘a major intrusion in their life’ and that '[P] can perform some basic tasks for herself within the placement, such as getting herself breakfast at times, and does not need waking support overnight but overall, her needs are such that she requires 35 hours of one-to-one support each week […] it is arguable that the current placement allows P some sense of relative normality because she can go on regular outings and attend local clubs’. To me i can’t see how this would amount to confinement post AGNI?

Interested in others views.

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Hi James

I have an almost identical case which was, just before AGNI, approved by the Court for CoP DoL, and has been for the last 3 years. Since AGNI I have started to consider if my person would even qualify now, as there is no objection, despite the high level of support, and at regular reviews a definite sense of being settled and content in the environment. My person does not always verbalise their feelings in relation to the placement and when they do it is often caught up in some form of delusional thoughts relating to religious content. However, I believe my person could be giving tacit consent, as their behaviours in general do not indicate any upset or objection regarding where they live and the circumstances under which they live. Apparently I don’t need to review the CoP DoL until it is due to be reviewed, but it has definitely got me thinking.

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Hi James - I agree with your analysis. This really is confusing. I think your analysis is spot on. Is it because in paragraph 19 objection/acceptance is disputed?

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Thanks Steve, and i suppose that may be the case but ultimately the judge decides “19… On balance, the evidence before me supports a conclusion that P has some awareness of where she is living and where she has lived, including in the past with her parents, but otherwise overall she is consistently confused about where and with whom she wants to live and her wishes and feelings are, as described by the ASW, “muddled”. I cannot therefore find that P has clearly and consistently expressed a wish to return to live with G, but I do note that this does not in any way diminish the undoubted bond between the two of them nor that G cared for P for the majority of P’s life on the evidence before me.”… This would still need to be in CoP because of the dispute about what arrangements are in P’s best interests, but not every dispute between those interested in P’s welfare and those commissioning the care automatically means this points towards P being confined… If i get a chance later (meant to be a NWD :rofl: ) i may try and write something about the difference and see what others views are in relation to this.

I really hope people do not put to much wait on this judgment as it appears, even in its language, to have more in common with Cheshire West than it does with AGNI.