logo-education
0370 270 6000

already registered?

Please sign in with your existing account details.

need to register?

Register to access exclusive content, sign up to receive our updates and personalise your experience on brownejacobson.com.

Privacy statement - Terms and conditions

lessons in deprivation of liberty for special schools

10 February 2011

Deprivation of liberty is back in the newspapers again following the decision of the Court of Protection in C v A Local Authority. The press coverage has focused on the findings relating to use of a ‘padded room’ by the maintained special school in question, which was used to control the behaviour of C who has autism and severe learning disabilities.

C, now aged 18, had been resident in a special school since 2007. His care included 24 hour support with a 2:1 staffing ratio. His behaviour was sometimes extreme, aggressive and harmful both to himself and others. Carers had suffered a broken nose and lost the sight in one eye from a detached retina as a result of his behaviour. Management of his behaviour at the school included use of a padded room of about 10 square feet with a secure door that would be held closed by the carers. The evidence was that this room was used very frequently, for example more than six times a day on average in one month, often as a way of dealing with C’s propensity to be naked.

The judgment, given by Ryder J, covers a number of important issues which have wider implications for special schools and those involved in residential care. From a legal perspective, the judgment is significant in that it appears to blur the boundaries between judicial review and Court of Protection proceedings and does not sit squarely with either. The judgement sets out exactly what should and should not be done for C in future, rather than saying the local authority should reconsider its unlawful decision.

In determining deprivation of liberty, the issue is “whether the person is, or is not, free to leave”, tested by “whether those treating him exercise complete and effective control”. The repeated use of seclusion was a factor in this case, but it seems likely that the circumstances of C’s life at the school would have been held to be a deprivation of liberty in any event. Furthermore, as there was no lawful authority for the deprivation of liberty, such deprivation resulted in a breach of C’s Article 5 rights.

Whilst the Deprivation of Liberty Safeguards (DOLS) did not apply - the school was neither a care home nor a hospital - and the Mental Health Act (MHA) was not used, the court held that the DOLS code of practice and the MHA code of practice were both relevant and should have been taken into account. The seclusion in a padded room was also found to be unacceptable and the judge directed that staff should be trained and put in place arrangements to minimise restrictions on C’s choice to be naked.

Perhaps the most significant lesson that can be learnt is in relation to the communication with family. This seems to be another case that has come to litigation, at least partly, as a result of a breakdown in the relationship between the family and the local authority. Though it is stating the obvious, cases like this remind us that open communication and involvement of the family are vital not only for ensuring good practice, but also for avoiding expensive and damaging litigation. The process will be much quicker and cheaper where the parties are collaborative rather than adversarial.

training and events

14Oct

ISBL regional Conference Sheffield

Browne Jacobson’s Associate Sophie Jackson discusses the rise in growth of SEN and the impact of this on schools. Please note that this event was postponed from June 2020.

View event

19Nov

CST Inaugural Annual Conference Hilton Metropole, NEC, National Exhibition Centre, Pendigo Way, Marston Green, Birmingham, B40 1PP

Come and meet the team at CST’s Inaugural Annual Conference this summer. Partner Nick MacKenzie will also be delivering a workshop on governance leadership.

View event

focus on...

Legal updates

Keeping children safe 2020

The new guidance on Keeping Children Safe in Education, has just been published. Our education team summarises the guidance and suggests your next steps to effectively implement the changes in your school or Trust.

View

Keeping children safe during Covid-19

On 27 March the Department for Education (DfE) released new guidance to schools and academy trusts to help keep children safe, including online, during the Coronavirus pandemic.

View

Blogs

Coronavirus – FAQs for schools and academies

At present schools and academies are being asked to continue operating as close to normal as possible. Despite this, like all organisations, schools and academies are now turning their minds to the fact that if the disease continues to spread there will be a disruption to ‘normal’ curriculum delivery and working arrangements for some time.

View

Legal updates

Keeping children safe during Covid-19 – template policy

In response to new safeguarding guidance published by the Department for Education (DfE) to keep children safe, including online, during the pandemic, we are delighted to be able to share with you our template so that you can add to your existing child protection policy.

View

The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

mailing list sign up



Select which mailings you would like to receive from us.

Sign up