Anna Dannreuther analyses a recent judgment that discussed anticipatory deprivation of liberty orders in the context of prospective loss of capacity and the tension between respecting a young person’s autonomy and protecting them from harm when making best interest decisions.
In County Council v JK  EWCOP 68 the deprivation of liberty order in respect of JK, an 18-year-old woman with diabetes, was lifted.
JK had been diabetic since she was 8 years old. She had a history of mismanaging her diabetes as well as mental health issues. As a result, she was frequently hospitalised and the courts and JK’s local authority had been extensively involved. In October 2018, after a lengthy period in hospital, JK was discharged to her family’s care. However, she could not maintain her diabetes treatment regime, and was readmitted to hospital with, inter alia, diabetic ketoacidosis.
These proceedings were brought in January 2020 by JK’s local authority for an order authorising her deprivation of liberty in hospital, which resulted in this best interests decision about JK’s treatment and care.
In April 2020, Dr Adesida, consultant psychiatrist, concluded JK lacked capacity to make decisions concerning her treatment and care and she should be admitted to a residential unit which would meet her medical, mental health and social needs.
JK was discharged from hospital on 5 October 2020 to a supported living placement but was hospitalised on 28 October because of high ketone levels.
Mrs Justice Lieven saw JK at a hearing on 29 October, and JK expressed her clear wish that the proceedings, and the deprivation of liberty order, end. She wanted to return home to live with her parents and continue the university course she had started in September 2020.
Between the October hearing and the final hearing, Dr Adesida filed an addendum capacity report. This concluded JK has capacity to make decisions about the care and treatment of her diabetes except when she is under considerable distress and has overwhelming emotions (when she is unable to weigh up information about managing her condition).
Lieven J concluded that the deprivation of liberty (DOL) order (which, as amended, now allowed the local authority to transport JK to a safe place and restrain her for medication when she becomes ill and loses capacity) should not remain in place. In her words, it would “undermine [JK’s] determination to take control of her life” and would “say to her that neither the court nor a wider community trusts her.”
How does the decision impact local authorities making similar applications?
Lieven J was “far from convinced” the restrictions the local authority sought amounted to a deprivation of liberty. Nonetheless, she recognised that DOLs can arise during short periods of time, even for a blood test, X v Austria 18 DR 154.
The local authority was seeking an anticipatory order, which would authorise measures to be taken in the future which may amount to a deprivation of liberty (but which in practice may not do so).
- The Court of Protection may make anticipatory orders in cases involving fluctuating capacity or potential future loss of capacity, if the evidence supports such a finding. Wakefield MDC v DN  EWHC 2306 (fam), per Cobb J.
- In these circumstances, the approach is to “assume that there would be a deprivation, even if in reality the restraints upon JK (if they happen) would be either too fleeting or too consensual to meet the Storck tests”.
Even though Lieven J concluded that (i) there are limited periods when JK may in the future lose her capacity to manage her diabetes (that is, when emotionally distressed) and (ii) the measures sought by the local authority were a deprivation of liberty (or at least were assumed to be), she concluded it was not in JK’s best interests for the DOL order to remain in place in any respect because:
- JK’s wishes and feelings are “entirely clear, carefully and strongly articulated and rationally thought out.”
- JK explained those wishes and feelings to the court at a point when she had capacity which “must lead to the Court giving more weight to those wishes and feelings.”
- Those feelings are:
- JK wants her autonomy and not to feel under the court’s control.
- The DOL order makes her feel under constant scrutiny and supervision, which is highly unsettling.
- The order makes it impossible for JK to become a Special Constable (her ambition).
- The DOL order is having a highly detrimental impact on her life (para 33).
- JK is 18 and now an adult. Therefore she “has a right, within the bounds of the [Mental Capacity Act], to personal autonomy.” The DOL order intrudes on her Art 5 right to liberty and her Art 8 right to a private life and personal autonomy.
- There does not need to be an order in place for JK to receive emergency treatment if that becomes necessary nor for her to be transported to hospital.