Distinguishing deprivation of liberty from empathetic care: will we 'know it when we see it'?

Bournemouth Borough Council v PS & Anor [2015] EWCOP 39

Summary

The UK Court of Protection was recently asked to rule whether the care regime of a 28-year-old man with severe autism ('Ben') amounted to a deprivation of liberty. Justice Mostyn ultimately concluded that the arrangements were in Ben's best interests, and did not amount to deprivation of liberty under Article 5 of the European Convention of Human Rights (ECHR). The Court declined to provide a test for 'deprivation of liberty' noting simply that the Court would 'know it when we see it'.

Facts

Ben has autistic spectrum disorder and a mild learning disability. He has demonstrated a number of dangerous behaviours including damage to property and injury to others, self-harm and inappropriate sexualised behaviour. He is at risk of self-neglect and unable to maintain his medication or hygiene needs independently.

In 2006, Ben was assessed as lacking capacity to determine where he lived, and an order was made that it was in his best interests for the Council to determine where he lived. In light of an expert report of Highly Specialist Clinical Psychologist Dr Hannah Kiddle, Mostyn J was satisfied that this remained the case, for the purposes of sections 2 and 3 of the Mental Capacity Act 2005. Under these provisions, a person lacks capacity in relation to a matter if at the material time they unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. A person will be unable to make the decision if they are unable to understand information relevant to the decision, retain that information, use or weigh it as part of the decision-making process, or communicate their decision.

Since 2011, Ben has lived in his own home with round-the-clock supervision and personal care. He was given privacy in his bedroom and was free to roam the house and gardens, although he was locked out of the kitchen when food was being prepared due to safety concerns. The home lacked door locks but was equipped with sensors to alert staff if Ben tried to leave, as he lacked road and traffic awareness and thus required staff support outside the home. He had never attempted to leave on his own, despite being able to do so. Additionally, he was considered a risk if accessing public toilets unsupervised due to past incidents of inappropriate sexual activity. With support, Ben was able to use local transport and do his own shopping.

The Law and allegations

The Bournemouth Borough Council (the Council) brought the application in order to determine (i) whether the care package was in Ben's best interests, (ii) whether the package amounted to a deprivation of liberty within the terms of Article 5 ECHR, and (iii) what contact Ben should have with his mother, the first respondent. There was no argument between the applicant Council and the first respondent (Ben's mother) in relation to issues (i) and (iii).

Since the decision in P v Cheshire West and Chester Council and another [2014] UKSC 19, councils have evaluated the conditions of persons in community care to determine if they were being deprived of their liberty. If it appears that they are, the councils must request leave for such conditions to be allowed by the Court of Protection. The Council's application was pursuant to this practice.

The Supreme Court’s famous ‘acid test’ in Cheshire West stated that a person was deprived of their liberty under Article 5 ECHR if they:

• could not consent to their care arrangements due to lack of capacity;
• were subject to continuous supervision and control;
• were not free to leave; and
• the state was responsible for their confinement.

Decision

Justice Mostyn held that Ben was not being deprived of his liberty as he was not under continuous supervision, was afforded privacy, and had the freedom to leave. If he were to leave, his carers would attempt to persuade him to return, but would not coerce him. However, if Ben were to ultimately refuse to return home, his carers would ask the police to exercise the powers under section 136 of the Mental Health Act 1983 to remove a 'mentally disordered' person to a place of safety for 72 hours.

In relation to the considerable difficulties the Court faces in dealing with issues of disability care in the context of deprivation of liberty, Justice Mostyn said:

The continuing legal controversy shows how difficult it is to pin down a definition of what is a deprivation of liberty (i.e. detention by the state) as opposed to a restriction on movement or nothing beyond humane and empathetic care. It has been said on a number of occasions by the Strasbourg Court that the difference is merely one of degree or intensity, and not one of nature or substance… Ultimately I think that whether a factual situation does or does not satisfy the acid test is likely to be determined by the "I know it when I see it" legal technique.

The Court considered a number of authorities which had sought to "unravel and apply the acid test for what constitutes deprivation of liberty" as well as Article 5 of the ECHR, which provides for the right to liberty and security of person. His Honour considered that the state must "secure the human dignity of the disabled by recognising that their situation is significantly different from that of the able-bodied". Apparently, such support might involve restrictions that may engage Article 5 ECHR, however his Honour contended that such engagement should not be strictly considered solely in regard to the right to liberty, but also in the manner in which it "gives effect to the right to security mentioned in that article" (original emphasis).

Ultimately, the Court was not satisfied that Ben was being detained by the state. The Court commented that in this situation, Ben would be deprived of liberty if he ever declined to return to his home and police exercised their powers under the Mental Health Act, at which point he could be removed to a 'place of safety' and detained there for 72 hours. Up until this point, Ben was a "free man" and the acid test was not met.

His Honour did not criticise the Council for bringing the case, acknowledging the need for local authorities to err on the side of caution and seek judicial determination on each case, given the potentially enormous risks of failing to do so. He reaffirmed his position that the matter needs to be "urgently reconsidered by the Supreme Court."

Comments

Whilst it has been held in this case that Ben has not been deprived of his liberty, some commentators will disagree. The approach of 'I know it when I see it' provides only limited guidance to anyone working in disability care. Clearly, an application of the acid test is not providing sufficient clarity to councils and the judiciary alike, particularly in cases of in-home care. It will remain the case that in all but the most unequivocal of circumstances, judicial determination will be necessary to determine whether custodial disability care arrangements fall foul of Article 5.

The decision can be found here.

Andrew Burleigh is a Graduate at DLA Piper