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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.

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