High Court to decide if autistic man was illegally detained

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The Independent Online

A father has described in court how he felt "powerless" when a local authority prevented the return home of his autistic son for nearly a year during a bitter care dispute with a local council.

Mark Neary, a counsellor from Uxbridge, spoke out during a hearing in the Court of Protection to decide whether Hillingdon Council acted unlawfully in refusing to allow his 21-year-old son Steven to come home.

Lawyers said the dispute began after Steven Neary – who has autism and a severe learning disability – entered a "positive behaviour unit" in December 2009. His 52-year-old father viewed the move as temporary and thought his son would be home by late January.

But the council had concerns about Mr Neary's "challenging behaviour and weight" and argued that the move was intended to be for a longer period. The council used a "deprivation of liberty" order to keep Steven in care until December 2010, when a judge ordered him to be returned to his father.

Deprivation of liberty orders are a little-known tool which primary care trusts and local authorities can use to detain a person without permission from the courts. The Court of Protection is currently deciding if that decision was lawful in a case with far-reaching ramifications for care workers.

Mr Justice Peter Jackson yesterday reserved judgment. Most cases that come to the court – which acts on behalf of people who cannot make their own decisions – take place behind closed doors. But following a series of challenges begun by The Independent and other media organisations, judges have allowed reporters into a handful of hearings in the past 15 months.

Mr Neary's case is thought to be the first time any reporting, albeit limited, has been allowed in a private hearing prior to the judge handing down his decision. Automatic reporting restrictions apply to all Court of Protection hearings which are held in private. Following a legal challenge by The Independent and four other media organisations earlier this year, Mr Justice Jackson allowed the press to identify the Neary family and Hillingdon Council because so much of the background to the dispute was already in the public domain.

The judge said: "There is a genuine public interest in the work of this court being understood. Not only is this healthy in itself ... it may also help dispel misunderstandings. There is no evidence whatsoever that Steven has suffered from the publicity that has already been generated."

Mr Justice Jackson must now decide whether Hillingdon Council's use of a deprivation of liberty order unlawfully deprived Mr Neary of his freedom.

Under the Mental Capacity Act, deprivation of liberty orders can be obtained to protect a vulnerable person. But it can only happen if the order is in a person's best interests, is proportionate and is sought when all of the least restrictive options are exhausted.

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