It is National Schizophrenia Awareness Day on 25th July 2022. National Schizophrenia Awareness Day is hosted by the charity Rethink Mental Illness and aims to illustrate the challenges faced by people living with a diagnosis of schizophrenia in the UK. Schizophrenia is a mental illness that affects 1 in 100 people, yet the condition is often largely misunderstood.
In this case study, we highlight how we were able to assist a vulnerable adult (CM) who had been assessed to lack capacity to make decisions regarding her residence and care due to a diagnosis of schizophrenia, and subsequently deprived of her liberty at a specialist mental health nursing care unit pursuant to Schedule A1 Mental Capacity Act 2005 (‘the Act’).
CM was consistently objecting to the deprivation of her liberty at her placement and was expressing an ongoing desire to move to other specific locations in the UK. RPR’s are appointed to be a voice and advocate for a person lacking mental capacity when they are deprived of their liberty by virtue of their care arrangements, and they have a legal duty to instruct a solicitor to challenge the deprivation of liberty if the person is consistently objecting to the arrangements. We were instructed by CM’s Independent Mental Capacity Advocate (IMCA) and Relevant Persons Representative (RPR) to make an application to the Court of Protection to challenge the deprivation of her liberty, pursuant to s21A of the Act.
For a person to be lawfully deprived of their liberty in a care setting, the arrangements must be assessed to be in their best interests. This decision is usually made by a best interests assessor at the local authority. Upon issuing the application to the Court of Protection, we asked the court to consider whether the best interests requirement was met, in light of CM’s consistent objections to the deprivation of her liberty at her current placement.
During the course of the proceedings, we maintained regular contact with CM via telephone in order to provide her with updates in respect of the case and to seek her wishes and feelings in respect of how she could be/ what could make her happier, so that we could relay the same to the court. Notwithstanding the fact that CM was assessed to lack mental capacity to make decisions about her residence and care, her wishes and feelings are an important factor for the Court of Protection to consider in reaching a decision in accordance with s4 of the Act. This entailed frequent discussions in respect of what activities she enjoyed, what cuisine she preferred, whether she was accessing the local community, whether she was happy with her bedroom including the layout and her personal belongings, as well as contact with her family. Face-to-face visits were not possible during the life of CM’s case, due to restrictions in place because of the public health pandemic.
The respondent Local Authority was invited to explore whether CM’s needs could be met in an alternative placement, such as a supported living model or care setting able to facilitate a ‘step-down’ level of care. This is because care arrangements and any deprivation of liberty needs to be the arrangements that are the least restrictive of a person’s freedom. It was submitted by the Local Authority that CM’s social worker considered she was appropriately placed at her current placement given that she had a high level of needs, and the placement was conveniently located to access the support of her family, which was important to her.
It was also acknowledged during the proceedings that CM’s wish to live elsewhere in fact stemmed from a desire for greater independence and choice. She was complementary of the placement generally (despite objecting to the deprivation) but was clear in expressing a desire for a greater degree of autonomy and was dissatisfied with certain aspects, such as a lack of traditional food in line with her heritage.
It was concluded that the best interest requirement in paragraph 16 of Schedule A1 of the Act was met, the court being satisfied that CM should continue to reside at her current placement, as it was in her best interests to reside and receive care and treatment there in order to meet her care needs and prevent the harm that could be caused to her if she was to live in a less restrictive setting.
Following our discussions with CM and upon us having provided evidence of her wishes and feelings to the court, the court directed the variation of the standard authorisation (one of the remedies available in s21A challenges to the Court of Protection) by adding the following conditions:
- CM was to be supported by the placement to access the kitchen so that she could cook her own meals (as CM enjoyed cooking traditional meals with staff at the placement); and
- The placement was to continue to offer CM traditional food in line with her heritage (as was also her wish).
Both conditions were added to the standard authorisation as a direct result of the s21a challenge, when we requested that the local authority consider measures that would improve CM’s quality of life, whilst she continues to reside at her current placement against her wishes.
This case highlights the significance that varying the terms of a standard authorisation can have on a person’s autonomy and quality of life, even if the court considers that it is in their best interests to continue to be deprived of their liberty at their current placement. Our Court of Protection team have expertise in advising upon and challenging deprivations of liberty, including applications to vary the conditions of a standard authorisation.
If you are a RPR, IMCA or an family member of a vulnerable adult and there is a dispute about issues relating to the capacity, health and welfare or the individual (such as the individual’s residence, care or contact with others), please do not hesitate to contact our specialist mental capacity and Court of Protection solicitors on 01616 966 229. Our team of specialist solicitors regularly advise on all aspects of mental capacity decisions and disputes, best interest meetings and disagreements, and provide representation to both vulnerable adults and family members in court proceedings. Legal aid funding is available, subject to eligibility.