Salford City Council v BJ

Where an incapacitated adult is deprived of liberty, regular judicial review is required by Article 5. It concerns the legality of the detention, rather than merely good practice. Reviews need not always involve an oral hearing. A paper review is permissible where the circumstances are stable, provided the parties can seek an oral hearing and the judge can require one where evidence, investigation or argument makes it necessary. Review arrangements must be tailored to the individual. Statutory safeguards applicable to placements in hospitals and care homes may provide useful guidance even where the statutory scheme does not apply. The High Court and Court of Protection apply the same Article 5 principles, although the Court of Protection must also follow the structured decision-making process required by the Mental Capacity Act 2005.

The proceedings concerned the continuing deprivation of liberty of BJ, an incapacitated adult living in supported accommodation at MH. The court had previously authorised the placement and approved a care plan under its inherent jurisdiction. A scheduled review was postponed, although the local authority continued regular internal reviews and both parties remained satisfied that the arrangements served BJ’s best interests.

The court considered the evidence, confirmed that the deprivation remained necessary, proportionate and in BJ’s best interests, and determined the arrangements for future judicial and internal reviews. It also considered whether the proceedings should be transferred to the Court of Protection.

1. Continuing authorisation. BJ continued to lack capacity. The placement at MH remained in his best interests, and the restrictions remained necessary, proportionate and the minimum required. The declarations authorising the deprivation of liberty were continued.
2. Regular judicial review. Where there is a deprivation of liberty within Article 5, regular court reviews are required at reasonable intervals. They are necessary to the legality of the detention. The postponed review had caused no prejudice on the facts, but such delays should not recur.
3. Form of review. Article 5 does not require an oral hearing on every occasion. A review may take place on the papers where the circumstances justify it. An oral hearing must remain available if requested by a party or required by the judge because the evidence needs investigation or scrutiny, further assessment is needed, or argument would assist the court. The first annual review will normally be more likely to require an oral hearing, but the approach must remain fact-sensitive.
4. Review frequency. Internal reviews must be regular and specifically tailored to the individual. In BJ’s case, six-monthly internal reviews were appropriate, with an additional review if significant changes were needed. Judicial reviews were to occur in November 2010 and every 12 months thereafter, subject to reconsideration of the internal-review frequency.
5. Applicable legal framework. Schedule A1 did not apply because MH was neither a hospital nor a care home. Sections 4B and 16A also did not apply. The deprivation could therefore continue only under the High Court’s inherent jurisdiction or under the relevant powers of the Court of Protection. The Court of Protection applies the same Article 5 principles, while also applying the structured decision-making process required by the Mental Capacity Act 2005.
6. Transfer. The proceedings were transferred to the Court of Protection. The agreed order was approved.

This was a first-instance review. The judgment records earlier orders continuing the placement and fixing further reviews, including the order made on 25 July 2008. No appellate decision is stated.