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Mental Health, Capacity and Abuse: Case of WMA and MA (2013)

Mental Health, Capacity and Abuse: Case of WMA and MA (2013)

In A Local Authority v WMA and MA [2013] EWHC 2580 decided in July, but only recently published, a man with severe mental health difficulties was ordered to live apart from his ‘abusive’ mother despite her insistence that she is a good mother caring for her son. The number of applications to deprive people with mental health problems of their liberty has increased by 66 per cent since 2010 and have nearly reached 12,000 in 2012–13 (see Health and Social Care Information figures). This article will consider the details of this case and the concerns of the trend as a whole.

A Local Health Authority v WMA and MA

WMA is a 25 year old man diagnosed, for the purposes of this case, as having atypical autism and a pervasive development disorder, meaning that on occasion he has very unpredictable behaviour. His mother also has difficulties in the form of sight and mobility. Concerns were raised in 2009 about the state of the property in which they lived and the lack of opportunities provided by MA for WMA’s development. Since then both mother and son have shown reluctance to interact with social services and the carers provided. The court described it in the following way:

MA has hindered WMA’s adult development in that he simply is not equipped in the skills and tools for everyday living.

In addition the local authority alleges MA is psychologically abusive of her son, speaking about him in a derogatory manner and being unable to understand what he might make progress in as to social skills despite his disability.

In 2013 the local authority bought an action to seek to place WMA in a residential unit, which would be much better for his personal development. What is relevant in this article, however, is that they also sought an order as to deprivation of WMA’s liberty, in order to ensure that he gets to and remains in this residential facility.
This is a difficult case in which WMA is not incapable of expressing his own, strong views (and where equally strong views are also expressed by his mother). They clearly did not want these orders to be granted, WMA insisting on many occasions that he wants to stay with his mother.

…there has been some doubt as to exactly what amounts to a deprivation of liberty…

Once it had been determined that WMA did not have the capacity to make decisions about where he should live and that it is in his best interests that he should live in what is only referred to as ‘B’ (a unit where he would receive much more support and opportunities, things that had been refused by both WMA and MA whilst he was living with her) the court went on to consider the question of deprivation of liberty. Given the reluctance expressed by both mother and son, it was decided that it was simply a matter of course that WMA should be deprived of his liberty in order to affect the move and ensure that WMA stayed there. Although there has been some doubt as to exactly what amounts to a deprivation of liberty, it was in no doubt in this instance that affecting the move, and ensuring that WMA stayed there, would amount to a deprivation of liberty.

The law on deprivation of liberty

The law in this area has been somewhat controversial. Until 2009 deprivation of liberty was not lawful (sectioning an individual is a separate regime), there was no specific reference to it in the Mental Capacity Act 2005 and it is prohibited under Article 5 of the European Convention of Human Rights (ECHR). After the case of HL v UK [2004] ECHR 471, where the European Court of Human Rights found that the concept of ‘necessity’, as described in the Mental Capacity Act, was not sufficient legal justification for depriving an individual of their liberty, a new safeguarding procedure known as the ‘Deprivation of Liberty Safeguards’ procedure was introduced. This was inserted into the Mental Capacity Act by the Mental Health Act 2007 (and came into force on 1 April 2009).

In short the Deprivation of Liberty Safeguards provide that before a person can be deprived of their liberty it must be ensured that:

  • The individual is 18
  • The individual is of unsound mind
  • The individual lacks capacity
  • The individual is not subject to the Mental Health Act 1983 (as that would mean the Mental Capacity Act 2005 is irrelevant to them)
  • Any deprivation of liberty would not conflict with any valid advance decisions made by the individual (e.g. by a lasting power of attorney)
  • The deprivation of liberty would be in the best interests of the individual
Concerns regarding the use of the law

The use of these safeguards, however, has been the cause of some concern. The statistics in themselves are concerning, with applications rising from 7,157 in 2009/2010 to 11,887 in 2012/2013, and around 56 per cent of these applications being granted (in 2012/13). What causes a bigger concern though, is the fact that what appears to have arisen is a ‘postcode lottery’. Whilst Leicester made around 400 applications for deprivation of liberty in 2011, Reading made only one. This in itself displays a concerning variation in attitudes towards the orders.

Not only has a concern arisen in relation to this postcode lottery, but the legislation itself is the subject of much criticism. It has been described as overcomplicated and deeply misunderstood, just a brief glance at Schedule A1 of the Mental Capacity Act illustrates just how lengthy and complex it is. The variation in use across the country only emphasises these problems, the legislation does not provide a clear idea of when these safeguards should be used. The Mental Health Alliance has in fact described the legislation as ‘not fit for purpose’ due to these difficulties, being joined in their criticism by the Care Quality Commission (CQC).

…the legislation itself is the subject of much criticism; it has been described as overcomplicated and deeply misunderstood…

A further concern is that despite the concerning increase in numbers, a number of deprivations of liberty are not being properly recorded. The CQC found that only 37 per cent of cases in England were properly recorded, suggesting actual numbers could be significantly higher.

Given the squalid conditions in WMA’s home, and the effect his mother’s care was having on WMA’s wellbeing, it seems that this is perhaps not an incorrect decision in terms of deprivation of liberty. However, there have been other cases such as that of Steven Neary, an autistic 21 year old who was unlawfully removed from his father’s care as a result of this legislation. The High Court has since ordered Hillingdon Council to pay £35,000 to Mr Neary as a result of this unlawful deprivation.

It does not seem that this is an area that will be changing any time soon…

It does not seem that this is an area that will be changing any time soon, as in 2012, a Ministry of Justice spokesman said:

‘The Government is confident the law gives care providers, supervisory authorities, vulnerable people and their families the power and protection they need. A decision to apply for a deprivation of liberty safeguard ultimately rests with care providers based on individual circumstances.’

This then, is clearly an area where improvements need to be made and those making the decisions need to be better trained and educated on the provisions. If there is no sign of change in the law, the only way to combat the current difficulties is to promote a more universal practice in relation to deprivation of liberty.

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