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Detention of autistic adult was illegal, decides the Court of Protection

Local authority criticised for its treatment of son and father

The Court of Protection in L. B. Hillingdon v Steven Neary and others [2011] EWHC 1377 (COP) has determined that it was unlawful for the London Borough of Hillingdon to detain within in its support unit an 18 year old who suffered from autism and severe learning disability.

Steven Neary had been taken into into respite care for a few days at the request of his father in December 2009.  He remained there until December 2010 against his own and his father's wishes.  The local authority argued that between January 2010 and April 2010 it kept Steven in the support unit with the consent of Mr Neary, and that Steven was not deprived of his liberty during this time, and from April onwards it kept Steven in the support unit using a series of 'deprivation of liberty' authorisations that it (as a supervisory body) granted to itself (as a managing authority).

Mr Justice Jackson concluded that Hillingdon had no lawful basis for keeping Steven in the support unit from January to December 2010.  He rejected the argument that Mr Neary had consented and found the DOL authorisations relied upon flawed assessments and that even if they had been valid, they would not have amounted to lawful authority for keeping Steven in the support unit.

Specific criticisms made of Hillingdon in this case were that it had failed to consider the principle that, all other things being equal, Steven should be cared for at home by his family and had failed to acknowledge the disadvantages of living away from home.  They failed to acknowledge the significance of the relationship between Steven and his father.  No attempt was made by the local authority to carry out a genuinely balanced best interests assessment.  Hillingdon's approach was calculated to prevent proper scrutiny of the situation it had created.  It disregarded the opposition of Mark Neary, Steven's father.  Mr Neary was 'managed' and given the impression that if he actively opposed the local authority's plans, it would withdraw the care package that had been in place for Steven at home.

The local authority had also pursued inconsistent agendas between April and July 2010 – putting in place a transition plan for a return home whilst Mr Neary remained unaware that the professional view was that Steven should not return home.  It was only when successful overnight stays at home meant that the parallel agendas became unfeasible that the true view of the professionals became known.  Furthermore, in July, when the truth was known, it took almost four months for an application to be made to the Court of Protection.

For the judgment and fuller case summary by Sally Gore, please click here.