Deprivation of liberty at home – a backward step?

A person is deprived of their liberty if they are under constant supervision and control and are not free to leave, and they lack capacity to consent to these arrangements. If a person is deprived of their liberty, this must be authorised by the ‘Deprivation of Liberty Safeguards’ (DOLS) or by the Court of Protection to be lawful. 

The Court of Protection recently handed down a striking judgment seemingly at odds with the Supreme Court’s application of Article 5 in the context of deprivation of liberty at home. 

The case concerned Katherine, a 52 year old woman who suffered severe brain injury while undergoing surgery, aged just 34. She has cognitive and mental health problems, epilepsy and physical disability. She is resident in her own home in Middleton with 24/7 support provided through a local authority care package.

The question before the Court of Protection was whether the arrangement made for Katherine’s care in her own home by Rochdale Council amounts to a deprivation of liberty within the terms of Article 5 of the European Convention on Human Rights (ECHR). The significance of this is that if the answer is ‘yes’, then Katherine’s deprivation of liberty would be subject to periodic reviews by the court. 

The Supreme Court, in their landmark judgment in Cheshire West, ruled that such arrangements, where the individual is subject to constant supervision and control and not free to leave, amount to a deprivation of liberty, and include arrangements that take place in the person’s own home. Both legal representatives for Katherine and Rochdale agreed that the Supreme Court’s analysis should apply to Katherine’s case; notwithstanding this, the judge did not agree.

The ‘acid test’ for determining whether a person is deprived of their liberty consists of the twin features of (1) continuous supervision and control, and (2) lack of freedom to leave. The judge considered whether Katherine was objectively “free to leave”, and found, surprisingly, that she was, stating that Katherine was “not in any realistic way being constrained from exercising the freedom to leave, in the required sense, for the essential reason that she does not have the physical or mental ability to exercise that freedom”. 

In reaching this decision, the judge undertook his own analysis of “liberty”, referring to the historical and political context in which the ECHR came into being when Europe was reeling from the “bestial abuses perpetrated by Nazi Germany and its allies” and when the concept of liberty was “absolutely nothing to do with the best interests care regime in which Katherine enjoys in her own home”. 

It is clear that the judge’s concept of freedom is based on whether that person has the physical and mental capacity to exercise that right. This is a troubling interpretation as this analysis would mean that someone who is severely physically disabled, and therefore housebound, can never be deprived of their liberty. This is also difficult to square with the decision of the Supreme Court that liberty must mean the same for all, regardless of whether they are physically or mentally disabled. 

The Supreme Court, when considering the case of MG, an 18 year old who has moderate to severe learning disability, stated that the correct comparator when considering the extent of her freedom was someone of the same age and full capacity. The judge in the Court of Protection disagreed with this analysis and held that these cases were not alike because you are comparing a case where an 18 year old does need protection on the one hand, and, on the other hand, a case where the 18 year old does not. He found that it is “simply impossible to see how such protective measures can be linguistically characterised as a “deprivation of liberty”.”

This judgment appears to fly in the face of the Supreme Court who stated that the purpose of the confinement, even if the placement is designed to serve the best interests of the person so confined, is irrelevant, and that if that was the case the deprivation of liberty safeguards would scarcely, if ever, be necessary. As Lord Kerr pointed out, “Benevolence underpinning a regime which restricts liberty is irrelevant to an assessment of whether it in fact amounts to a deprivation.” 

The judge in the Court of Protection recognised that he was bound by the majority decision of the Supreme Court, even though he made very clear that he did not agree with them. However, as we have seen, he attempted to get around this by distinguishing Katherine’s case from MG’s on the basis that Katherine does not have the physical or mental capacity to make the decision to leave. The judge concluded by boldly stating that the matter of whether someone can be deprived of their liberty in their own home should be reconsidered by the Supreme Court. 

We are surprised and disappointed by the judge’s application of Cheshire West. His reasoning appears to be based upon the fact that Article 5 wasn’t originally intended to protect people like Katherine, and the increased burden on local authorities in authorising deprivations of liberty as a result of Cheshire West. We would argue that these factors are irrelevant; periodic independent checks are fundamentally important to ensure that arrangements made for individuals without capacity are in their best interests, and to ensure them equal dignity and status as human beings.

We understand that permission has been granted to Katherine’s legal representatives to appeal to the Court of Appeal.

This judgment, and the confusion it leaves, reinforces the need for specialist legal advice as possible if an individual, who does not have capacity to consent, is deprived of their liberty and this has not been authorised through the Deprivation of Liberty Safeguards or by the Court of Protection. A solicitor in Leigh Day’s Court of Protection team can advise on what legal action should be taken and how to fund it, including advising on whether public funding is available.

(Leigh Day acted for the AIRE Centre in their intervention in the Supreme Court in the Cheshire West case.)