Balancing Autonomy Against Safety When Protecting Vulnerable Adults

How does the Court of Protection balance safety against autonomy when protecting vulnerable adults from dangerous behaviour and harmful influences?

This issue arose in the recent case of MN v A City Council [2021] EW COP 62.  The case involved a young man, Michael, who had mild learning disabilities, dissocial personality disorder and misused illicit substances.  Michael’s behaviour could be challenging and violent and this led to several care placements breaking down.  In February 2021, he was detained under the Mental Health Act after being found with wounds to his neck and threatening to take his own life.

Michael moved to a placement in March 2020 which included 24-hour supported accommodation.  He was subject to a number of restrictions there, which had been authorized by the Court of Protection, including a curfew that required him to return home at 10pm each night and prohibited the use of alcohol or drugs onsite.  Michael objected to the restrictions by absconding and threatening staff.  In April 2021, the local authority proposed that Michael should move to a more restrictive placement, in the interests of his safety.  Michael’s representative brought proceedings under s21 of the Mental Capacity Act to challenge the standard authorization.  Although Michael was willing to move to the proposed placement, the placement refused to take him because of his perceived risk to other residents.  Proceedings eventually came to an end by agreement in October 2021.

Safety vs Autonomy

An independent social worker, who was instructed to carry out a best interests assessment, concluded that a move to a locked facility was likely to increase the risks that Michael posed to himself and others.  Although a more restrictive setting may sever some of his antisocial links in the community, there would be risks to Michael’s autonomy as an individual.  It was unlikely that any of the available options could keep Michael safe and, while Michael opposed the restrictions in his current placement, he seemed to tolerate them and comply with them to some extent.

The court made a declaration that Michael lacks capacity to manage his property and finances and to make decisions to use and consume illicit substances.  It was agreed that Michael would remain at his current placement and that the curfew and 24-hour support would continue.  HHJ Burrows was of the view that any further restrictions on Michael’s freedom were likely to be counter-productive and that the standard authorization was necessary and proportionate to secure Michael’s safety, in so far as it could be secured.  The judge concluded that the order struck “the right balance” between keeping Michael safe whilst allowing him to do what he wants, including making some mistakes.  The judge acknowledged that the order gave Michael a considerable amount of freedom, which he could use in a way to harm himself.  However, removing the risks with greater restrictions would not be in Michael’s best interests since his life would then have little interest and it was likely that he would become frustrated, angry and resentful and become impossible to manage.

HHJ Burrows acknowledged that this is a “fairly common case” to come before the Court of Protection.  The case highlights “the difficult and finely balanced welfare assessments professionals have to make when planning and caring for those with challenges similar to Michael”.

Nicola Gunn is a partner in the Court of Protection and Family Departments.

If you require advice please contact Nicola on 020 7940 4000 or nicola.gunn@anthonygold.co.uk.

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