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(Court of Appeal; Sir Nicholas Wall P, Thorpe LJ and Hedley J; 16 July 2010)
A young vulnerable adult was placed with foster carers as a child. The vulnerable adult behaved differently and better at home than at school. After some uncertainty the carer agreed to become an adult placement carer and provided invaluable support during a series of operations. There were concerns about some comments made by the vulnerable adult that led to a safeguarding referral, during which the vulnerable adult was removed from the carer and placed in a residential unit.
The issues were whether the vulnerable adult should remain in the local authority unit or return to the carer, whether there was any deprivation of liberty and, whether there should have been contact with the carer and the family. The safeguarding investigation proved inconclusive. The judge reviewed the Mental Capacity Act 2005 ("MCA 2005") as amended and concluded that adult was undoubtedly being deprived of liberty. The judge decided that the adult should not to be returned to the carer in interim, but held that the local authority had not acted appropriately.
Appeal dismissed. The MCA 2005 provided a procedure prescribed by law for depriving such persons of their liberty. Article 5 of the European Convention on Human Rights did not impose threshold conditions which had to be satisfied before a best interest assessment under the Deprivation of Liberty Safeguards could be carried out. A distinction should be made between mental illness and other sorts of chronic incapacity. Justification of detention under the MCA 2005 is not a medical decision but a decision for the court.
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