Salford City Council v GJ & Ors

Where the court authorises the deprivation of liberty of an incapacitated adult, the order must provide effective safeguards under Article 5(4). Reviews must examine both the continuing justification for detention and whether the person remains of unsound mind of a kind or degree warranting compulsory confinement. They must occur at reasonable intervals and be sufficiently speedy.

During the interim period, an oral court review should generally take place within four weeks, with regular internal reviews and an urgent liberty to apply. After the final hearing, court reviews should normally occur annually, supported by continuing internal reviews. The structure must be tailored to the individual case and is indicative rather than prescriptive. The litigation friend, ordinarily the Official Solicitor, continues to play a central role while those reviews remain part of the proceedings.

The local authority applied under the inherent jurisdiction concerning three incapacitated adults. This judgment concerned only BJ, whose lack of capacity and continued residence at a care placement had been declared lawful and in his best interests. The local authority accepted that the care plan involved a deprivation of liberty engaging Article 5.

The court had to determine the appropriate structure for reviewing that deprivation, both before and after the final hearing. The central issues were the nature and frequency of court and internal reviews, the continuing role of the Official Solicitor, and the safeguards required pending implementation of the statutory deprivation-of-liberty scheme introduced by the Mental Health Act 2007.

1. The court held that measures restricting BJ’s liberty had to remain reasonable and proportionate. The requirements of Article 5(4), as explained through Re PS and the Strasbourg authorities, required review of both the substance and frequency of the detention’s justification. The review had to be wide enough to determine whether unsoundness of mind of a kind or degree warranting compulsory confinement persisted, and had to occur speedily and periodically at reasonable intervals.

2. The review structure had to be tailored to the circumstances of the individual case. The guidance given was indicative, not a rigid template. During the interim period, the first court review should generally be an oral hearing no later than four weeks after the order authorising deprivation of liberty. Where the person had initially lacked a litigation friend, the review should occur sooner. Further reviews should be fixed by the judge, with liberty to every party to apply on the shortest reasonable notice. The court had a duty to list such an application urgently.

3. The local authority should ordinarily conduct internal reviews every four to six weeks during the interim period. A scheduled review did not remove the need for an earlier review where there was reason to believe that capacity, best interests or the availability of a less restrictive option had changed.

4. After the final hearing, the order should provide for regular court reviews, normally at intervals of no more than twelve months, subject to earlier review. The proceedings remained dormant rather than concluded, and the Official Solicitor remained the litigation friend unless released by the court. Up-to-date reports were required, although their detail depended on the stability or fluidity of the circumstances.

5. Article 5(4) did not require an oral hearing at every annual review. An oral hearing would normally be appropriate at the first annual review. Later reviews could generally be dealt with on paper if the position had stabilised, subject to the court’s power, and any party’s right, to require an oral hearing.

6. Internal reviews after the final hearing should ordinarily occur every eight to ten weeks, although quarterly reviews might suffice in an appropriate case. An independent representative was mandatory. Pending commencement of Schedule A1 to the Mental Capacity Act 2005, the Official Solicitor should fulfil that role unless another suitable person could be identified. Judicial continuity and proactive case management were strongly endorsed.

7. In BJ’s case, the matter was to be reviewed in June 2008, again in May or June 2009, and internally every eight to ten weeks between those court reviews. The case was reserved to Munby J or, in his unavoidable absence, Ryder J.