Care home briefing 120 – Deprivation of Liberty and residential care

The Court of Protection decision in the case of CC v KK and another appears to further restrict the definition of ‘deprivation of liberty’ in the context of the Mental Capacity Act 2005 (“the Act”) and Article 5 of the European Convention on Human Rights (“the Convention”).

Background

The court considered the circumstances of an 82 year old woman, K, who suffered from Parkinson’s Disease, dementia and mobility problems. She was assessed as lacking the capacity to make decisions about her care and residence and was therefore admitted to a care home. The local authority granted the care home a standard authorisation for deprivation of liberty under the Act.

K filed an application challenging this authorisation, and an order was subsequently made allowing her a trial period of daytime visits home. Two further requests for standard authorisations were refused as it was concluded that K was not being deprived of her liberty: the care plan allowing for home visits was now less restrictive.

Judgement

The matter was listed for a contested hearing before the Court of Protection to determine: (a) whether K had the capacity to make decisions about her care and residence; and (b) whether the circumstances of her residence at the care home amounted to a deprivation of liberty under Article 5 of the Convention.

(a) Capacity?

The court ruled that, in evaluating capacity, it was inappropriate to start with a blank canvas. The individual should be presented with detailed options in order for their capacity to weigh up those options to be fairly assessed.

In this case, the local authority had not identified the complete package of support that might be available should K return home. Furthermore, there was a real danger that the professionals and the court might consciously or subconsciously attach excessive weight to their own views on how to protect her physical safety and insufficient weight to her views regarding her emotional needs.

On the evidence, whilst K might have underestimated some of her needs, her understanding of the respective options was not ‘superficial’. She had demonstrated a degree of discernment, rather than simply stating that she wanted to go home without considering the consequences. As such, the authority had failed to prove that she lacked capacity to make decisions about where she should live.

(b) Deprivation of liberty?

Case law has established that, when determining whether there is a deprivation of liberty within the meaning of Article 5, three conditions must be satisfied: (i) an objective element of confinement in a certain limited space for a not negligible time; (ii) a subjective element, that the person has not validly consented to the confinement; and (iii) the deprivation of liberty is one for which the state is responsible.

In the instant case, the second and third conditions were clearly satisfied. K had capacity and did not consent; rather the judge described her as strongly objecting. The involvement of the local authority and the court constituted the state responsibility element.

However, in relation to the objective element, the arrangement for K’s care could not overall be described as one of ‘continuous control’. There was no use of restraint or sedation, she was consulted about her treatment and could move freely around the care home. As such, she had not lost a significant level of personal autonomy. On the question of the ‘relative normality’ of K’s life, the care home was far removed from the type of institution associated with a deprivation of liberty, and her disability itself imposed a degree of restriction on her life in any event. Moreover, K was able to return home daily and could leave the care home on other occasions when accompanied.

It was therefore held that K’s circumstances did not amount to a breach of her rights under Article 5. Even before the introduction of home visits she was not being deprived of her liberty, and since she was able go home daily the situation fell far short of a deprivation of liberty.

Comment

In determining the existence of a deprivation of liberty, little weight was given to K’s consistent expression of a strong desire to live at home, despite the fact that she was found to have capacity to make decisions about her care and residence. Her objections were merely a factor pointing towards deprivation of liberty. This decision would therefore seem to restrict the instances in which deprivation of liberty rights can be utilised.

The judgment in the earlier case of Cheshire West and Chester Council v P suggested that ‘where a person has somewhere else to go and wants to live there but is prevented from doing so by a coercive exercise of public authority’ this might exemplify a deprivation of liberty. However, the judge in the instant case stated that an ordinary care home with ordinary restrictions on liberty is not the kind of institution in which people are generally considered deprived of their liberty. Again, this appears to have narrowed the circumstances in which the Article 5 Convention rights will apply.

Prior to this case, critics expressed concern that the availability of the Deprivation of Liberty Safeguards under the Act was not as widespread as had been hoped when they were first introduced. Ostensibly, this decision further limits their availability. On the other hand, this could equally be viewed as a victory for common sense, whereby restrictions which are necessary to facilitate a disabled person to live a more normal life ought not to be seen as a deprivation of liberty. Indeed, the judge specifically noted that K’s placement in the care home did not significantly add to the restrictions already imposed on her life by the nature of her disability.


Care Home Directors banned for failing to protect residents’ money

Two Care Home Directors have been banned from running a company for seven years under the Company Directors Disqualification Act 1986. The Directors had held as trustees the money of seven residents at their care home, but had failed to ring-fence approximately £60,000 received for the residents from pension and welfare benefits. Instead the money had been used as “working capital” for the care home which went into administration and the money was lost.

This case underlines the need to take great care in the management of residents funds.

It has also prompted comment regarding Government action to regulate financial practices in the Care Home industry, and media reports would suggest that a review of this will be undertaken, partially as a result of the financial problems suffered by Southern Cross.


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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