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Public protection and s.21A (again)

RCJ portrait 146x219The Court of Protection team at 39 Essex Chambers report on the outcome of a recent s. 21A Mental Capacity Act challenge.

The case of N (Deprivation of Liberty challenge) [2016] EWCOP 47 (Peter Jackson J) was a second s.21A challenge, the first being reported as Y County Council v ZZ [2012] EWCOP B34, where Moor J upheld the supervision arrangements. It concerned a man in his 40s with mild learning disability and ‘paedophilic disorder’. He had a history of fire-setting and self-harm and a tendency to try to make contact with children for sexual gratification. However, he had not engaged in any obviously risky behaviour for the past six years. Deprived of liberty in a locked residential placement for those with challenging behaviour, he was escorted at all times outside and closely monitored inside. Since 2016 he had been offered daily shadowed leave in the community.

The s.21A challenge was issued in April 2014, soon before the standard authorisation was to expire. Since then his detention had been authorised by interim court orders. During the length of these proceedings, he had separately unsuccessfully challenged his guardianship order in the tribunal. The issues before the court were (1) whether N had capacity to decide on his care arrangements, and specifically to decide whether or not he should be accompanied in the community, and (2) if he did not, whether the deprivation of his liberty was necessary and proportionate and in his best interests.

On the first issue, Peter Jackson J found that:

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11. N himself does not consider that he poses a risk to himself or others, and points to the fact that he has been largely compliant for the past six years. I note, however, that when speaking to MM he described his feelings for children as natural, saying that everyone has them to some extent. Also, for some years, he has expressed a wish to adopt a child, despite being repeatedly counselled that this is unrealistic. These are to my mind clear examples of his inability to understand the issues that have to be considered when making decisions about his care arrangements. I note Dr Noon’s view that they might also be an example of minimization, but he too considered that N’s paedophilic disorder probably also affects his capacity, though the fundamental difficulty springs from his learning disability

13. Having considered all the evidence, I accept the professional conclusion and, like Moor J, find that N lacks the capacity decide on his care arrangements. His learning disability deprives him of insight into the persistence of his paedophilic disorder. For him to go into the community alone would not be merely an unwise decision, but an action taken without any real understanding or balancing of the risks he poses and the risks he faces. (emphasis added)

In relation to the second issue, Peter Jackson J held:

15 … The boundaries that are being set allow N to develop in a way that he is not able to achieve for himself. The level of risk if he was unsupervised is real and the nature of the risk is serious. It could lead to N being returned to a prison or hospital environment indefinitely, quite apart from the risk of a violent response from others.

16. Mr O’Brien argues that the professional position has been over-influenced by an understandable concern to protect others, as opposed to giving benefit to N. I found no sign of this in the witnesses’ evidence. (emphasis added)

His Lordship found that the lack of risky behaviour over the past six years showed the success, rather than lack of necessity, of the supervision arrangements. They were necessary, proportionate and in his best interests. However, the efforts to relax supervision were to continue. After all, “The granting of a deprivation of liberty authorisation permits controls but does not compel them” (para 18). Accordingly, it was authorised for a further 12 weeks to allow the local authority to arrange a standard authorisation. Any further s.21A challenge was to be referred to his Lordship for directions or summary disposal.

The court was critical of the length of proceedings. The first case, before Moor J, had lasted for two years and ended in 2012. These proceedings lasted for 2½ years but should have been concluded within around six months. His Lordship contrasted this with the guardianship appeal where “the tribunal system was able to resolve the objectively more serious issue of guardianship in a matter of seven or eight months, appeal included”.


The first thing to note about this judgment is the interesting reference to N’s “paedophilic disorder”, for the psychiatric labelling of paedophilic thoughts is a controversial issue, albeit envisaged by the Mental Health Act 1983. Secondly, this case illustrates the interaction between harm to self and harm to others in the context of best interests, necessity and proportionality. There is clearly pressure in similar cases to liberally interpret “harm to P” by including the consequences to P if P’s risk to others materialises.

Secondly, Peter Jackson J noted that Counsel for N “rightly queried whether the Court of Protection should use its powers to extend a deprivation of liberty for longer than the statutory scheme allows. The short answer is that the question of an extension for longer than 12 months should not have arisen at all because the proceeding should have been concluded within, say, six months.” Whilst he did not expressly hold that the Court of Protection could not so use its powers, we suggest that the Court of Protection cannot lawfully extend authorisations beyond 12 months (see also in this regard the observations of Charles J in Re UF). It is important also to recall in this regard, as Charles J has recently reminded us in Briggs v Briggs (1), the importance of ensuring that authorisations remain in place during the life of any CoP proceedings so as to ensure that there are no doubts as to the availability of non-means-tested legal aid.

Finally, it is worth emphasising that there was no criticism in principle to a second s.21A challenge being brought in this case, although there was significant delay, and the court envisaged further such challenges. The Court of Protection has yet to rule on the issue of the frequency by which P or their RPR are able to exercise their rights under Article 5/MCA s.21A.

This article was written by the Court of Protection team at 39 Essex Chambers.


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