Mental health law briefing 219 – Rejection of Local Authority claim that a 93 year old woman was ‘deprived of her liberty’
In W City Council v Mrs L 1 proceedings in the Court of Protection concerned a 93 year old woman with severe dementia, Alzheimer’s disease. The Local Authority and her eldest daughter together set up care and safety arrangements for Mrs L in her own home.
Mrs L had been widowed in 1976 and lived in her home for the past 39 years, the upper floor flat in a 2 storey building. Since her diagnosis with dementia in 2004 she had been looked after by various family members and Mr Justice Bodey praised the family for having done ‘extraordinarily well in caring proactively for Mrs L’.
Sadly, Mrs L’s condition deteriorated and she fell twice in 2013. The first time she injured her hip. The second time she was not hurt but became disorientated, and wandered away from her home very unsuitably clothed into the local town. She was returned home by the police or social services and this event led to the involvement of the Local Authority.
In response to the increased risk to Mrs L’s safety, her home was adapted to suit her needs. The family installed a fence around her previously open garden with a latched gate, a new lock for her front door and sensors which would alert the family if she tried to leave the property at night. The front door was locked with a Yale lock which Mrs L could operate so she could access the garden when she wished. At night the door sensors switched themselves on in the evening and off in the morning and would be activated if Mrs L were to leave the property at night. An alarm call would be automatically routed to one of her daughters nearby and, if not available, would reroute to the Emergency Services. This would enable Mrs L to be guided safely back home.
A care package was provide by the Local Authority with specialist dementia carers visiting 3 times a day. There was common agreement that Mrs L’s immediate environment gave her significant pleasure and stimulation; that she derived great pleasure from being able to go out and enjoy the garden and that it would cause her distress to be moved to residential care. There was no dispute that the current arrangements of family and social services working together were in Mrs L’s best interests and worked well.
Deprivation of Liberty
Despite Mrs L’s apparent ‘happiness and lack of objection to being where she is’, the Local Authority claimed that the measures which were taken in response to the risk presented by Mrs L’s deteriorating health, constituted a ‘deprivation of Mrs L’s liberty’. The Local Authority’s position was that a physical barrier was not necessary to keep her safe. Mrs L’s daughter acting as her litigation friend disagreed.
Mr Justice Bodey summarised the current jurisprudence and noted that the existing cases involved individuals in state run social care institutions. He considered the fact that in this case , Mrs L was in her own home and although this was not decisive it was a relevant factor.
The family argued that there was ‘in reality no compulsion or constraint going on’ with the arrangements. It was submitted that the situation was not any kind of ‘placement’. “ It is simply a case of an old lady who wishes to remain in her home and for whom the minimum restrictions have been put in place to keep her safe”. The family urged the court to adopt ‘a common sense and practical approach’.
Mr Justice Bodey acknowledged that the circumstances of the case were different to those involving institutional accommodation and confinement when a Local Authority is accused of infringing an individual’s rights.
He accepted that Mrs L did not have capacity and pointed out that if it were otherwise ‘this case would not be happening’. He did find that Mrs L was capable of expressing her wishes and feelings, for example her choice of clothes, the choice of what she does around the property and her going in and out of the garden at will and that thus was relevant in the evaluation of whether Mrs L was being ‘deprived’ of her ‘liberty’ within Article 5 3 of the European Convention on Human Rights. He referred to the decision in Cheshire West 2 and to paragraph 38 where Lady Hale spoke about ‘the presence or absence of coercion’ being a relevant consideration. He referred to the range of criteria to be taken into account including the type, duration, effects and manner of implementation of the arrangements put in place and confirmed that it was a question of an overall review of all the particular circumstances of the case.
Mr Justice Bodey observed that Article 5 refers to everyone having a right to ‘liberty and security of person’. He referred to Mrs L’s ‘security’ as being achieved by the arrangements put in place as being in her best interests, even though involving restrictions -“such restrictions are not continuous or complete. Mrs L has ample time to spend as she wishes and the carers visits are the minimum necessary for her safety and wellbeing, being largely concerned to ensure that she is eating, taking liquids and coping generally in other respects.’
It was ruled that there was no deprivation of the woman’s liberty and that while the action taken by the family constituted ‘restrictions on Mrs L’s liberty’, ‘they do not quite cross the line to being a deprivation of it’. He held that the responsibility of the State in this case was diluted by the strong role, which the family has played and continues to play. He did not consider in such circumstances that the mischief of State interference at which Article 5 was and is directed, sufficiently exists.
Mr Justice Bodey cited the reference to Art. 5 ECHR to ‘liberty and security’ of person. The ECHR’s position currently is that ‘security of person’ does not provide any separate interpretation from the right to liberty and serves to emphasise that detention must not be arbitrary. It remains to be seen how the appellate courts will interpret the provisions.
Although not free to leave, Mrs L was not considered to be under continuous or complete supervision and control and Mr Justice Bodey considered the application of the Supreme Court Judgment in Cheshire West to domiciliary care in a situation where there is agreement between the parties that the arrangements are in best interests. The extent to which the Local Authority (the State) might be responsible for violating its positive obligations under Article 5 ECHR to protect people from arbitrary interferences by private persons was not ultimately considered in any depth by Mr Justice Bodey although it is considered in The Law Society Guidance ‘Identifying a Deprivation of Liberty: A Practical Guide’ (9 April 2015).
The extent to which Article 8 ECHR which seeks to prevent intrusion by the State into the physical and private space which the concept of home represents may be relevant will no doubt become apparent as cases continue to come before the courts.
Where consideration is given to restrictions and potential deprivation of liberty within the home these issues are bound to come under scrutiny.
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1. W City Council v Mrs L (By her Litigation Friend PC)  EWCOP 20
2. P v Cheshire West and Chester Council; P&Q v Surrey County Council  UKSC 19
3. Human Rights Act 1998; The Convention for the Protection of Human Rights and Fundamental Freedoms 1953
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP 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.