(Court of Protection, Mostyn J, 11 December 2012)

By Samantha Bangham, Law Reporter

03 January 2013

(Court of Protection, Mostyn J, 11 December 2012)

The 57-year-old man suffered from a number of separable mental disorders including childhood autism, obsessive compulsive disorder, dissocial personality disorder, mixed anxiety disorder and paedophilia. The professional opinion was that he lacked capacity to litigate, to make decisions concerning his care needs including where he lived, the medication he should take, the contact he should have with others, and about his finances, property and affairs. It was agreed by all parties that it was in his best interests to remain living in his current care home indefinitely and that he should be subjected to rigorous restrictions on those he could have contact with and in his correspondence in order to minimise the risk he posed.

The man’s paedophilia manifested itself in compulsive letter writing about his fantasies about sex with children which he would leave in public places, collecting photos of children and other sexually deviant behaviour. From time to time it was judged necessary for him to be strip-searched, his correspondence monitored and his telephone conversations listened to.

There was no question that the man was being deprived of his liberty but Art 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 permitted the lawful detention of persons with unsound mind and all parties were in agreement that his detention fell squarely within the exception. The more uncertain question was whether the man’s rights under Art 8 were being infringed.

In order to ensure compliance with Art 8 the Official Solicitor proposed a highly detailed agreed policy arrangement document which regulated inter alia the circumstances in which the man could be strip searched and have his telephone calls and correspondence monitored. The NHS Trust would agree to review each separate policy and the Care Quality Commission would seek advice from a human rights expert and specifically case track any material allegations of abuse made by the man.

Although not every case which involved some interference with Art 8 rights necessitated detailed policy documents such as this, in certain instances where there was going to be a long-term restrictive regime accompanied by invasive monitoring, the policies agreed here were likely to be necessary if serious doubts of a breach of Art 8 were to be avoided. In addition to the policy document there would be an annual review of the man’s circumstances by the court.