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	English and Welsh Courts - Miscellaneous
You are here: BAILII >> Databases >> English and Welsh Courts - Miscellaneous >> A Primary Care Trust v P & Ors [2009] EW Misc 10 (EWCOP) (21 December 2009) URL: http://www.bailii.org/ew/cases/Misc/2009/10.html Cite as: [2011] 1 FLR 287, [2010] MHLR 281, [2009] EW Misc 10 (EWCOP), (2010) 13 CCL Rep 636

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IN THE COURT OF PROTECTION

		Archway Tower 2 Junction Road London N19 5SZ
		21st December 2009

MR JUSTICE HEDLEY:

1. This case raises two essential issues. The first one relates to capacity and is fairly routine as far as it goes, relating as it does to P's capacity in relation to his medical treatment, his best interest, residence, what kind of contact he has and the ability to conduct litigation.
2. If, however, he lacks capacity a second issue arises in respect of which there is a fundamental conflict and in respect of which, a number of important issues arise. For it relates to a determination in respect of his best interests and in particular, in relation to where he should live, and it poses an essential conflict between representatives of the State who owe statutory duties to P on the one hand, and the view of his carer of 18-plus years standing on the other. Furthermore, it raises issues of significance in relation both to Articles 8 and 5 of the European Convention of Human Rights.
3. This case is all about a young man who, for the purposes of the judgment, I refer to as 'P'. He was born on the 18^th April 1985 and is thus, 24-years-of age. Since the 10^th April 1991, he has lived with a lady whom, for the purposes again of this Judgment, I shall refer to as 'AH' and that is a period of course of some 18-and-a-half-years.
4. P suffers from a severe form of uncontrolled epilepsy. There is evidence in relation to him of a mild learning disability, although AH does not necessarily accept that. Furthermore, there is some suggestion in the evidence that he is within the autistic spectrum disorder, but in my view there is insufficient evidence in the case which justifies the Court in further exploration of that issue.
5. P was born into a severely dysfunctional family; his mother showed an entirely erratic approach to his care and his father was frequently in prison. Trawling through the history, it becomes apparent that he had at least 11 separate foster placements, most of them being terminated by the actions of his mother and also a placement with his father during one period when he was at liberty, and in the end a placement that broke down because of the father's inability to cope with him.
6. In 1990 he was made the subject of a statement of special education needs and was described, albeit then that he was only five, as a disturbed little boy. On the 27^th March 1991, a full Care Order was made in respect of him and as I have indicated on the 10^th April 1991 he was placed on a permanent basis with AH, that placement being secured by adoption in October 1993.
7. P has lived with AH from the 10^th April 1991 effectively until the 13^th June 2008 and from the 10^th April 2009 until the 17^th September 2009, and as will be observed, that is by far the greatest part of his life.
8. Because of his background and disabilities, there has been a heavy involvement with professionals in his life, and one of the marked features of the case has been the ongoing dispute between his carer and the professionals, and it is apparent from the history as recited in the reports of Dr Land, the independent consultant psychiatrist instructed on behalf of the Official Solicitor, that one can find very early reference to those disputes.
9. Although it was January 1992 before P had his first clearly recorded seizure, it is most unlikely that his epilepsy dates from as late as that, although it is not clear as to when or why it first manifested itself. What is apparent, is that by March 1996 there are the first clearly recorded disputes over the medical treatment that he ought to be receiving in relation to his epilepsy and it is clear that other disputes were developing as well.
10. Dr Land draws attention on page 25 of his report to an assessment by the consultant clinical psychologist on the 18^th November of 1997, who observed that there were concerns in the following areas.

'1) P's increased need for rest was disrupting his schooling; 2) P showed a marked lack of independence possibly because his mother was over protective, it was noted that he tended to go to his mother's bed for reassurance, 3) behavioural problems, particularly verbal abuse directed at his mother, 4) level of cognitive functioning; 5) "An exceptionally caring and supporting mother" who has been an enormous benefit to P but whose constant search for alternative solutions for P's problem, led her to neglect her own needs.

There was furthermore an observation that P would need some support in separating from his mother.

11. The same consultant clinical psychologist produced a further assessment on the 13^th January 1999 in which she detailed these concerns;

'1) P's increasing isolation as his mother withdrew him from all other activities, 2) AH's threats of self-harm and her level of distress, 3) AH's refusal to engage with professional support, 4) P's increased role as an invalid with a wheelchair, 5) P's inability to have appropriate privacy in developing independence, 6) P being inappropriately drawn into conflict between AH and the professionals.'

12. Matters had reached a stage where for a period of six months in 1988 P had, in fact, been included on the Child Protection Register under the category of neglect, and it is apparent that from 1988 he did not thereafter return to school.
13. Fundamental to this dispute were not only arguments over the appropriate medication and his reaction to it, but over the question about whether he suffered from ME or chronic fatigue syndrome. Into that dispute there entered a consultant paediatrician called Dr Speight  who appeared to take a view which set him apart from others of his professional background in relation to this. I interpolate to say that I have, since hearing this matter, received a long letter from Dr Spate dated the 11^th December 2009. I have, because he forms no part of the evidence, given no weight to his letter, but I have retained it as it seemed right to me that anyone who wished to see it, should have the opportunity to do so.
14. It appears to be with Dr Spate's support that on the 11^th December 2000, all epileptic medication in relation to P was withdrawn. There were other issues that were the subject of dispute at this stage so that in 2000, Dr Land records on page 30 of his report;

'Social Services' records for 2000 contain a solicitor's letter dated 29^th February with respect to the Crossroads care service. The letter states that AH and P hold their individual carer in high esteem but are concerned about the gaps of provision when that carer is absent. This appears to be the last of a series of complaints as the response from Crossroads states, "It is obvious from recent conversations and correspondence with the Selby District, Crossroads office, that the support service we are offering you is still not meeting your requirements. As it has been an ongoing concern of yours from last summer and the situation is not expected to change and you continue to make allegations about our staff, it is therefore with regret that we have no other option than to withdraw our services. "'

Dr Land continues:

'There is also, a letter from AH which talks about social services atrocities and the need to protect her son from "ignorant misguided and dishonest professionals". She is clearly angry at the lack of support she feels she is receiving, "I am suffering from chronic ongoing extreme exhaustion".

15. If one goes on a little further, one finds on the 27^th November 2003, Professor Crawford who is the doctor responsible for the epileptic treatment, writing:

'AH is changing P's anticonvulsants very frequently and would like him to come off medication. I am unhappy over this and obviously the risk of chronic seizures and sudden epileptic death. He will be seen in January but I feel his mother is very difficult to help.'

And then if one passes on to 2007, one finds Professor Crawford writing this:

'AH complains that P is allergic to everything, is intolerant of all foods and medication. She feels he has got multiple drug resistance.

Dr Land continues;

'Although P was clearly underweight, AH declined the offer of dieticianary advice as P was allergic to all food supplements. AH had also told Dr Crawford that they had telephoned Holland and Barrett and had been told that one should not take food supplements with the relevant drug. Professor Crawford dismisses this, she also records that AH declines specialist nurse input, admission to Oak Rise, and any of the offered anticonvulsants. She expresses her concern that AH is planning to stop all anti-epileptic medication and feels that there is little more that she can contribute.'

16. In fact, matters came to a head on the 7^th July 2007 when P was admitted as an emergency to hospital with what was accepted to be life-threatening and prolonged epileptic seizures in circumstances where AH had without medical advice withdrawn all his anti-epileptic medication some few days before.
17. If one goes on in Dr Land's history to Dr Land's own discussions with AH, it is apparent that she was under acute stress; she says on a number of occasions, 'I am tired, exhausted and we need support', and this was a point that was made repeatedly in her conversations with Dr Land. It is also apparent and Dr Land observes on page 54;

'Throughout the interview, AH has been keen to stress how ill P was and the way in which fatigue prevented him carrying out many activities. She also noted that P had difficulty in relating to new individuals.'

18. Whatever the rights and wrongs of each of those individual matters are, and they are clearly matters of dispute and matters the truth of which I have not fully investigated, it is clear that relationships between AH and P on the one hand and the professional community with statutory duties towards him on the other, has been for many years under severe stress.
19. The outcome of all of that and the emergency admission to hospital, was the issue of proceedings in the Court of Protection on the 15^th November 2007. The matter came on before the President on the 4^th and 5^th of June 2008 when amongst other things, the President made an Order that P should be admitted to Dr Chaudhuri's clinic in Romford for the purposes of a full assessment as to whether or not he suffered from ME and what was required by way of his treatment.
20. It is important to note that AH had been arguing for this admission to Romford as opposed to any local admissions in the north-east, and that the same had been organised but had run into all sorts of practical difficulty which required the President's intervention.
21. On the 13^th June P was admitted to Dr Chaudhuri's unit and Dr Chaudhuri was of the view that P was not at that stage a sufferer from ME and in due course, he was discharged from Dr Chaudhuri's care and took up residence at Oak Rise, a local facility in the north east.
22. Subject to a trial period at home to which I must come, that provides the context against which the present circumstances fall to be considered. I have read extensive documentation and reports in this case, I have heard oral evidence from the treating psychiatrist, from the general practitioner, from the treating neurologist, from various persons employed by the Local Authority or the Primary Care Trust, from Dr Land to whom reference has already been made and Mr Fowler, who is an independent social worker instructed by the Official Solicitor to advise the Court on best interest matters and of course, from AH herself and indeed, I heard evidence from her which extended over really whole of a Court day. That is as it should be, because clearly she holds a central position so far as the resolution of this case is concerned.
23. I heard the evidence over four days and the parties have helpfully subsequently supplied me with written submissions in respect of their cases. The present position can be boiled down to two conflicting proposals. On the one hand, the Primary Care Trust supported by the Local Authority and the Official Solicitor, wish to provide P with independent living accommodation with limited contact to his mother. On the other hand, AH wants to resume the care of P on a full time basis although accepting in theory at least, a need for a gradual move to independence at a pace which he can accommodate.
24. AH is undoubtedly a complex character, but of a type one has met before as a carer of those with special needs. She is and has been for over 18 years, single-mindedly devoted and committed to the care of P, and although it is an exhausting prospect, is determined to maintain that stance into the indefinite future. She has given to him an emotional warmth and stability which he so severely lacked when he came to her, and he is a far less emotionally damaged and vulnerable person now than anyone in 1992 had the right then to expect. The credit for that, and it is a huge achievement, belongs unarguably to AH.
25. However, it has come at a considerable cost to them both. It is utterly clear that they have been deeply and, as I find, unhealthily enmeshed in one another, so much so that when speaking to either about themselves or about the other, it is quite impossible to discern whose voice is actually being heard.
26. On the one hand, AH became deeply convinced that P was effectively an invalid with ME whilst on the other, she has fought to protect him from the intrusions of, as she sees it, incompetent, indeed mendacious professionals. This has had the effect of catapulting them down a vicious spiral of mutual interdependence which has resulted in each of them fulfilling the fantasies of the other. P appeared to the world as an epileptic and chronic sufferer of ME who was unable to socialise, dependent on a wheel chair, often and sometimes most of the day cared for by his inseparable and committed mother who utterly exhausted herself in his care and her unremitting conflict with the professional establishment.
27. At the same time, P was resistant to anything that offered any variant on his complete dependence on AH. In the end, Dr Chowdary said that P does not suffer from ME, AH says that she accepts this as the present position, but clearly remains convinced that he has in the past suffered from severe ME. The concern that P will relapse into that condition if left in the sole care of AH in the future is not only understandable, but is in my view if not a probability, then a sufficiently serious possibility to warrant the most careful consideration.
28. In my view, AH's perspective of the professionals involved as dishonest, incompetent and meddling for their own purposes, which is what her views come to, is bizarre. In using that word, I have selected the kindest and most moderate word which actually describes the position.
29. I make it plain that I do not regard AH as dishonest; if she were, the case would be much simpler than it is. She is, frankly obsessed by the position in which she finds herself. She asserted to me that the professionals had brainwashed and swayed P, but when challenged to provide any example of that, was quite unable to do so. Indeed, it is the case that P has always and staunchly verbally and in writing maintained his allegiance to AH.
30. It is the truth that she actually believes the stance that she has taken over the years and the fact that she believes it, bodes ill for her capacity to work with professionals in the future. That then is the context in which the Court has to consider first, the issues of capacity and then the issues, if they arise, of best interests.
31. As far as capacity is concerned, it is governed by the Mental Capacity Act, 2005 and I have tried wherever possible, to confine myself to a consideration of that Act without importing into it glosses from earlier decided cases under the inherent jurisdiction.
32. Section 1 of that Act requires by sub-section 2;

'That a person must assumed to have capacity unless it is established that he lacks capacity'. That is the clear law and the law that has to be applied in this case'.

Sub-section 4 says;

'A person is not to be treated as unable to make a decision merely because he makes an unwise decision.'

That is an important provision in the consideration of this case to which I shall come back in more detail in due course.

33. Section 2(1) provides that;

'For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time, he is unable to make a decision for himself in relation to the matter because of an impairment of or a disturbance in the functioning of the mind or brain.'

It is to be noted that capacity is an issue specific concept and from the fact that a person lacks capacity in relation to one area of their life, it does not follow that they lack capacity in all areas; just as it is possible for a person to have capacity in respect of most parts of his or her life, but to lack capacity in the part under immediate consideration.

34. Section 3(1) provides;

'For the purposes of Section 2, a person is unable to make a decision for himself if he is unable, a) to understand the information relevant to the decision, b) to retain that information, c) to use or weigh that information as part of the process of making the decision or, d) to communicate his decision whether by talking using sign language or any other means.

35. Generally, it can be observed that cases where a), b) and d) are clearly made out, are usually cases that are beyond argument. The really difficult cases, and this is an example of one, is where the attention is principally on sub-section c), that is to say the capacity actually to engage in the decision-making process itself and to be able to see the various parts of the argument and to relate the one to another.
36. Some of these matters I shall have to go into in more detail in due course. It is sufficient at this stage for me to say that I find on the basis of the evidence of Dr Land and Dr Milnes, and in this they are supported by the rest of the professionals, that P does indeed lack capacity in relation to the litigation, in relation to making decisions about his assessment of his health and current social care needs, about the ability to make decisions about the care and treatment, to make decisions as to where and in what sort of accommodation he should reside, to make decisions as to the social, education or other activities he should undertake, and to make decisions about the nature, extent and frequency and location of his contact with AH.
37. The reasons that I am persuaded that he lacks that capacity are the cumulative force of the following: a) his epilepsy and its impact on his functioning, b) his learning disability which is at the lower end of mild, c) the enmeshed relationship that he has with AH which severely restricts his perspective in terms of being able to think about his future, d) his inability, frequently articulated by him to those who have interviewed him, to visualise any prospect of having a different view to his mother on any subject that matters and his inability to understand what the other aspects of the argument may be in relation to his expressed wishes simply to return and live undisturbed with his mother. Finally, I have regard to that which has emerged more recently since September of this year, namely some disparity between his words on the one hand and his actions and attitudes in his dealings with staff on the other, as to which again, I need to say more in due course.
38. No one of those matters by themselves would justify a finding of disability, but the cumulative effect of all of them is to satisfy me beyond a preadventure that at the present time he wants capacity to deal with the matters to which I have related. That means that the Court is now charged with a best interests decision on his behalf. In doing so, the Court must have regard to the matters set out in Section 4, sub-sections (1) to (7) of the Act which can be read into this Judgment.
39. In approaching the question of best interests, it is important to start with P's own perspective in terms of the present position. It is clear that all his verbal and written indications consistently point to a desire to live with his mother and fairly consistently point to a desire to be free of significant professional involvement. It is right to observe, as has been pointed out, that some of the written indications at least, contain a sufficient sophistication of language of which P would not necessarily appear to be capable, and simply indicate the problems about trying to ascertain whose voice is truly speaking at any one time.
40. Moreover, as I have observed, how P behaves does not always tie in with what he says. It is true that originally he was fairly consistently hostile to the concept of Oak Rise and the staff who cared for him. Since his return there in September of this year, things have been rather different. The evidence of the care staff who know him best, is that he has presented quite differently to them in terms of a friendliness and an openness and a willingness to make relationships with them and indeed, with other residents that had not been apparent before.
41. Mr Fowler, a most experienced independent social worker was struck by what he described as the massive change in presentation since September as compared to when he had first seen P. There are accounts of what are described as very cordial relations with staff and other residents, and there is evidence of the beginnings of a willingness to think about alternatives in the sense of expressing the view of preferring to be in Selby rather than York if he cannot actually be at home with his mother.
42. The case needs to be approached even with those qualifications, on the basis that the thrust of P's own wishes is to return to live with his mother. How does the Court approach that in a case where a person lacks capacity?
43. This has been considered under the new Act by Mr Justice Munby as he then was in the case of ITW v Z & M, [2009] EWHC 2525 (Fam). That Judgement is characteristically full and elegantly expressed and I may be perhaps permitted to extract from it four simple propositions as to the Court's approach to the expressed wishes of an incapacitated person. First, the nearer that the person is to capacity, the greater the weight to be given to their views. Secondly, regard must be had both to the strength and to the consistency of those views. Thirdly, weight must be given to the impact on P of knowing that his wishes are not being given effect by the Order of the Court and fourthly, the extent to which those wishes are, indeed, rational, sensible, responsible and practical.
44. I would wish to express my respectful and fullsome agreement with that approach and I shall use it as I consider the respective merits of the cases in due course.
45. There is another crucial matter that needs to be considered before a final judgment about best interests can made, and that is the whole question of the placement home on trial earlier this year.
46. After P left Dr Chowdary's care, he was accommodated at Oak Rise and steps were taken to bring this matter to trial. However, in the meantime it was proposed that in March of this year, P should as it were, go home on trial and that was a course that was approved by the Court.
47. AH's case about that is this. That home on trial went well, it should never have been brought to an end as it was brought to an end in September of 2009 and thus, it should now be resumed as the proper way forward with P.
48. The PCT case supported by the Local Authority and the Official Solicitor, is that the trial was, indeed, properly brought to an end and that that proper bringing to an end is relevant to how the future should be determined. In fact, Dr Land expressed the view that the placement at home made no difference one way or the other to his overall assessment of the case. Be that as it may, the placement at home was undertaken with the agreement of all parties. It was clearly recognised by some as a risky undertaking and by others as a very risky undertaking, but it was agreed by all that it was an undertaking that should be carried through.
49. Ms Weereratne, who has been of the greatest possible assistance to the Court in understanding clearly the case that AH was seeking to put before the Court, complains that the original reservations about this placement at home, makes it look like AH being set up to fail and indeed, the attempt by the PCT to bring the placement to an end in August 2009, which was in fact opposed by the Official Solicitor and was not brought to an end, did nothing to mollify that concern.
50. Mr Fowler expressed the view that there was a realistic possibility of success but no more, and expressed the view that it was something that in the interest of P, should have been undertaken. That it should have been undertaken I am quite sure is right. That the possibilities of success viewed from the professional's standpoint were somewhat tenuous, I think is also the case and it is clear that everybody was, if I may use a colloquialism, pretty jumpy about the placement.
51. Why did it all come to an end? There were really two reasons. The first was that after P had been on a respite weekend which had included some fairly vigorous activity, his mother indicated that he was completely shattered by it and that was regarded as a warning sign by others of a reversion to his previous illness behaviours. Secondly, there was a dispute as to whether the mother had actually withheld some medication from him and had rearranged the box in which his medication came, so as to disguise that fact. This allegation was firmly denied by AH who simply said that there had been a mistake in prescription.
52. Given the background to this case and particularly the events that led up to the 7^th July 2007, it is not surprising that concerns were profoundly heightened over this particular issue, which assumed an importance that otherwise it could never have merited.
53. I have listened to the evidence about this and content myself simply with saying this: I am unable to find proved that AH deliberately withheld medication from P. There is no evidence that medication was actually withheld, other than this dispute about the appearance of the doset box between AH and an assistant at the general practitioner's practice and I am doing no more than simply stating that as a specific allegation, it has not been proved to the requisite standard.
54. I do, however, understand entirely the concerns of the Primary Care Trust, both over the talk of tiredness on the one hand, and over this whole peculiar incident about the doset on the other. And in the context of this particular case, it is not remotely surprising that people reacted as they did, and the fact that P was recalled to a Oak Rise as an emergency, comes as no surprise.
55. In the event, I am bound to say that I share Dr Lands' view that I am satisfied that either way this incident or its consequences cannot and could never have been determinative of the future best interests of P which have to be seen in a very much wider context than that. Therefore, one comes to the future best interests.
56. Mr Fowler's proposal advanced as an independent social worker, supported by the PCT, the Local Authority and the Official Solicitor, is that P should be accommodated in some form of independent living in a property in Selby. That the property should be staffed by those from the ward that he is on at Oak Rise. It should be on an open-ended basis, it should include if possible, one other person in a similar position to P, and it will inevitably involve a restriction on the contact that P is to have with his mother.
57. The basis of this proposal is a belief that until P has experienced something other than the care of his mother, then he has no opportunity to make true choices about what he wants for himself. In the circumstances of this case, it is said this can only be achieved by prising him out of his current relationship, significantly curtailing contact and thereby allowing space for the development of a new experience. Some believe, and leading amongst those is Dr Milnes, his treating psychiatrist, that this will lead to his regaining capacity and it is recognised that should he do so, that may result in a choice to return to AH.
58. It is very important in this case that the Court should be alert to the danger of using P's wishes to return to AH as itself continuing evidence of incapacity. That is of course, wholly impermissible. It is of the essence of a free society that people who have capacity, can choose lifestyles of which those with health or care responsibilities for them do not approve without on that basis alone being at risk of forfeiting capacity, that is the essence of the Article 8 protection.
59. It is right to observe that the Article 8 rights of AH and P are fully engaged in this case, and it is right also to observe that the Order sought by the PCT is a manifest breach of Article 8(1) of the Convention. However, Article 8(1) is a qualified right and its breach can always be justified under Article 8(2) and in particular, it can be justified where the interference with that right is in accordance with the law, that is to say the Mental Capacity Act, 2005 and is a proportionate response to the problem presented.
60. In my view, that can only arise where as here, P lacks capacity and will only be proportionate where the best interests of P compellingly require a placement away from AH. Thus, I consider the best interests.
61. I have two concrete proposals. I need to consider the advantages and disadvantages of each to P and then a balance has to be struck to see whether there is, indeed, the compelling requirement to place P away from AH.
62. The advantages of a placement with AH are as follows. First, it complies with the consistently expressed wishes of both of them. Secondly, it represents consistency of experience of P. Thirdly, it represents the least line of interference with the life of P and fourthly, it offers the continued devotion and commitment of AH to P which she is determined to maintain.
63. The disadvantages of such a placement are first, that it will perpetuate the problems of old to which reference has been made in this Judgment. Secondly, that AH will always treat P as she thinks is best for him, both in respect of his medication and in respect of his socialisation and prospective independence. Thirdly, there is the real danger of a reversion to something which looks like the pre-July 2007 position and fourthly, it will mean that P will never have experienced the making of a true choice about independence, notwithstanding that he is now 24-years-of age.
64. The advantages of independent living mean that at 24, it will open up experiences which other young people of his age are able to enjoy. It will protect his control of epilepsy through compliance with medication. It will enable him to develop a social and emotional independence of his own for after all, AH is most unlikely to outlive him. It will free him from the dominating effects of an obsessive and smothering relationship.
65. However, there are of course, disadvantages in independent living which have to be brought into the scales. It is contrary to both his and AH's expressed wishes. It is capable of being undermined or at least, made more difficult by AH not supporting the placement which, indeed, she may not. It involves disrupting all that he has known up to today. It involves a compulsory fragmentation of human family relationships which have hitherto been the bedrock of his emotional wellbeing and it will make significant demands on P in attempting to adapt to such a radically new experience.
66. I have reflected on all this with great care and am aware of the enormity of the implications of this, primarily for P's future welfare but for the hopes and aspirations of AH as well. In the end, I am fully satisfied that the disadvantages of a return to AH very significantly outweigh the advantages and by the same token, the advantages of independent living outweigh its undoubted disadvantages.
67. In that the decisive factors for me have been twofold. First, given that P may have to live many years in this world without AH, that the need to experience so much more than has ever been on offer in the past is crucial and secondly, I feel that a return to AH will on the balance lead to the return of the pre-July 2007 position, with P being required to become a sick, weak and wholly dependent human being, to be protected at all costs from an intrusive and misguided state, in the shape of medical and care professionals, and to his being treated as AH and she alone thinks best.
68. It is a combination of those two matters that point powerfully to P's best interests requiring the solution proffered by the PCT and supported by the Official Solicitor and all professionals from whom I have heard. In my view, this combination provides the compelling requirement that is required in order to justify under Article 8(2) what is undoubtedly a major incursion under the Article 8(1) rights of the parties.
69. Furthermore, it justifies an action which appears contrary to the expressed wishes of P whilst recognising that all that has been seen of him since his return to Oak Rise in September 2009, may well suggest that his expressed wishes are by no means the whole story.
70. At present, I find that P is still well short of capacity on this issue of where and with whom he should reside. His mind hampered by his disability and constricted by his experience, cannot conceive of any alternative to what he has hitherto known, nor is it able to perceive the key issues that surround that. As I have said, although he has expressed himself consistently, that has not of late been clearly supported by action and attitude. I think there is every prospect of P exploring these new possibilities, however, as he has shown that he can do both at Oak Rise and in some of his recent respite experiences. While there is a superficial rationality to his views, it is conditioned by the actual acute poverty of his experience.
71. My conclusions on the one hand that his best interests lie in an alternative independent living arrangement and on the other hand, that his expressed view is of a desire to return to his mother, give rise for the need to consider whether a deprivation of liberty is involved as contemplated by Section 4(A) of the Mental Capacity Act, 2005.
72. The Court is empowered to make a decision under Section 16(2)(a) of that Act which may extend to all the matters set out in Section 17 in relation to personal welfare, and the Court may do that notwithstanding that it involves a deprivation of liberty.
73. There are in my judgment, sufficient features potentially present in this case for it to be treated as a deprivation of liberty. First, there is the degree of control to be exercised by staff. Secondly, there is the constraint on P leaving if it is his intention to go back to AH. Thirdly, it is the power of the staff to refuse a request of AH for the discharge of P to her care. Fourthly, it involves necessary restraints on contact between P and AH and fifthly, it involves a fairly high degree of supervision and control within the placement.
74. I approach this cautiously as independent living in a flat is not a usual expression of deprivation of liberty, yet the presence of the facts as set out above does in my view have just that effect. That is the more so since that proposal which the Court has it in mind to approve, is indefinite in its duration and thus the consequences are indefinite too. I think that approach is confirmed by a consideration of some of the questions raised in paragraph 2(6) of the relevant code of practice.
75. For the reasons I have sought to set out in this Judgment, I am satisfied that the best interest of P require the Court to approve the proposal of the PCT in this case. In my view, although this conclusion may initially appear odd, I am satisfied in this case that the approval of such a proposal would constitute a deprivation of liberty. However, I am further satisfied that that is lawful in this case as having been in accordance with the Mental Capacity Act, 2005 and it is a proportionate response to the needs of P and should accordingly be authorised.
76. I am satisfied that the restrictions on P's general freedom will be modest, but in relation to his dealings with AH it will be substantial. As initially that will be the real focus of the placement, I think it right to regard this as the lawful deprivation of liberty duly authorised under the Act.
77. That raises questions of review. This is likely to be a long-term placement and that is certainly its intention. It raises rather different problems to the medical or social crises type of case which is rather more common. It must take into account the significance of a deprivation of liberty, the rather specific nature of it in this case and the practicalities of Court capacity and litigation generally. In particular, it must ensure that in effect, the same ground is not argued over and over again.
78. I think in this case, the Court should review the case nine months after actual placement in independent living, or 12 months from today, whichever is the earlier. I do not think it should be listed for a day, as that suggests oral evidence. It should be listed for two hours, if oral evidence is needed, it must be justified and if it is, an appropriate hearing can be listed but this is essentially a review. Thereafter, there should be an annual review that should initially be on paper with evidence of continuing incapacity and prognosis as to capacity with proposals for future care and contact, and with a statement from AH and on behalf of P from the Official Solicitor.
79. There must, of course, always be a liberty to reply. However, when any such application is made otherwise than in an emergency or by agreement, it should initially be made without notice to other parties so that the Court can satisfy itself that there exists a matter with which it ought to be concerned. All hearings should initially go to a local nominated District Judge who may of course, transfer the case if he or she thinks it appropriate, save that the first review and any interim application pending the first review should be reserved to me.
80. I am content to deal with contact as an Order separately once AH has had an opportunity to indicate whether, and if so which, of the requested undertakings she is willing to give, since she cannot be ordered to give them. However, I do propose to indicate my provisional views.
81. In my view, there are two fundamental issues about contact. The first is provision in the short term whilst P transfers and settles and second, contact in the mid-term up to and including the first review.
82. In my judgment, face to face contact is the key as P appears somewhat indifferent to telephone contact. Nevertheless, telephone contact has been a feature of his life and my own view about telephone contact is that there should be restrictions on the phone calls that AH can make to P, with a restriction of a 10-minute call, but there should be no restrictions on the phone calls that P intends to make himself. If he is indifferent to them, that should not present any problem at all; if he is not we need to know and in my judgment, there is no justification for imposing that kind of restriction on P himself which is deeply intrusive to monitor.
83. As to face to face contact, the aim is for it to move to unsupervised contact in the normal way as soon as possible. It needs to be of a frequency which is comprehensible to P, but of course, it must not be of such a frequency or a nature or extent as permits or tends to disruption of the placement. I think it inevitable, there will have to be some suspension of face to face contact immediately on placement, but I do not see any justification on the evidence I presently have for that being longer than 14 days. Thereafter, contact should be for at least two hours a week away from placement.
84. It should in my view, be lightly supervised. Heavy supervision is intrusive and oppressive to P and is not justified in the context of this case. The proper response to disruption is not heavy supervision but suspension of contact and that is the approach that should be adopted and in my judgment, for as long as the placement subsists manageably, then heavy supervision of contact is unhelpful.
85. If contact which should take place away from both the placement and the home, can be located in an activity, of course it can be for longer periods and the supervision can be correspondingly lighter or indeed, withdrawn altogether and certainly there should be a willingness to be flexible about contact in holidays and at special times and contact should be reviewed with the general review unless earlier agreements are made between the parties, in which case it can always be altered by agreement.
86. There must be some degree of control over contact, and the supervisor must be allowed to terminate an individual contact session, but if they do so, they must expect to be able to justify that both to the Official Solicitor and to the Court.
87. I do not think it would be right to accede to the PCT's request that they have the right to suspend contact overall, unless they have the active agreement of the Official Solicitor or an Order of the Court. I am sympathetic to AH's anxieties after her experiences of last August that an unduly cautious approach may be adopted. I think given that this is a major infringement of on the face of it Article 8 rights, fairness requires that such a power should not be permitted to them unless they have either the agreement of the Official Solicitor or the authority of the Court.
88. Those comments about contact are not the dictating of an Order, they are an expression of my general approach. I want to rise briefly now to give AH an opportunity with her advisers to consider what if any undertakings of those asked for in the draft Order she is prepared to give, and when I know the answer to that, then it seems to me that the Contact Order can actually be made in that specific form.

End of Judgment.