There is almost nothing more important than every individual’s right to liberty but, in some instances, the law allows people to be deprived of that fundamental freedom for their own benefit and to protect others. One such case involved a man with learning difficulties who was prone to sexualised behaviour towards children.
The man, in his 40s, had a history of fire-setting and self harm and suffered from paedophilic syndrome. Despite his tendency to make contact with children for sexual gratification, he had never been convicted of such an offence. He was, however, subject to a guardianship order, imposed under the Mental Health Act 1983, that enabled his local authority to decide where he should live.
Deprivation of his liberty within the residential community in which he lived had been authorised under the Mental Capacity Act 2005. Although kept under continuous supervision, he was permitted free access to the garden and accompanied leave in the community.
In challenging the authorisation before the Court of Protection, the man pointed to his lack of relevant convictions and to his abstinence from risky behaviour involving children over a six-year period. Insisting that he posed no risk to himself or others, he argued that more freedom was likely to improve his mental health.
The Court acknowledged that the restrictions on his liberty were serious. In rejecting his application, however, it found that his learning disabilities deprived him of insight into the persistence of his paedophilic tendencies and the capacity to decide on his own care arrangements. The removal of supervision would put children at risk and expose the man to punishment or retribution if he acted upon his urges.
The Court found that the restrictions on his liberty were proportionate and necessary but urged those caring for him to relax the level of supervision whenever possible. The Court allowed a further 12 weeks' deprivation of liberty so that the local authority could review the case and, if appropriate, seek renewal of the authorisation for a further 12 months.