A noteworthy decision on adult deprivation of liberty

A recent Court of Protection decision considers whether a patient (P) detained under the Mental Health Act 1983 and discharged under a section 7 guardianship order to a supported living placement was deprived of their liberty under Article 5 of European Convention on Human Rights.

P was a 36 year old woman who suffered from Asperger’s and lived in supported accommodation. She lacked capacity to make decisions as to where she should live, what care and support she should receive and to enter into and terminate a tenancy agreement. She was broadly free to leave her flat but her leaving and returning would always be seen by a member of the supervisory staff because of the flat’s location. She was required to reside at the flat and if she failed to return the police would be notified. Extensive support was made available to P but she was free to take it up or not. She had a history of being unable to look after her own accommodation and staff would enter her flat for the purpose of inspecting, cleaning or repairing. Staff therefore had access to her property whenever they thought fit.

The issue for the court was whether these arrangements under which P was required to live amounted to a deprivation of liberty – in short, the CoP found that P was deprived of her liberty in these circumstances.

The three tests: identifying a deprivation of liberty

• The person is confined to a limited space for a not negligible time;
• There is a lack of a valid subjective consent; and
• The confinement is imputable to the state.

In the case of P, it was accepted that the second and third tests were satisfied by reason of the order of the district judge set out at paragraph 9 of the judgment. So, the question for the CoP was limited to the first limb of the test: whether P was subject to “continuous supervision and control” and whether P was free to leave.

The CoP observed that it was accepted by reason of the guardianship order and the condition of residence that P was not free to leave her accommodation. The issue here was whether or not P was subject to “continuous supervision and control”. The fact that P was not free to leave is a material consideration, but as Baroness Hale observed in her leading judgment in Cheshire West:

"… It is possible to imagine certain situations in which a person is not free to leave but is not under such continuous supervision and control as to lead to the conclusion that he was deprived of his liberty."

In this case, the CoP needed to assess P’s arrangements under which she was required to live to determine whether she was subject to continuous supervision and control as to amount to a deprivation of liberty. The CoP described the case as at the “borderline” and one of “degree or intensity, and not one of substance or nature”. It commented that it would not be right to say that the mere presence of a guardianship order with a condition of residence itself amounted to a deprivation of liberty – although it recognised that it is a very significant restriction on liberty. In its view “supervision and control” should be viewed as separate requirements – and the word “continuous” applied to both.

The decision

It concluded that P’s arrangements amounted to a deprivation of liberty, commenting that:

• The question of supervision and control must be viewed in the context of the prescribed condition of residence. So while P may be free to leave the property as she chooses, she is always subject to state control requiring her return should she be otherwise unwilling to do so. The fact that she generally willingly returns does not of itself negate this point.
• While the supervision of her coming and going is not intrusive, it is the fact that all her movements are known and noted. Although she is free to do as she pleases, there will inevitably be some obligation to restrain or control those movements should they become seriously detrimental to her welfare – and that control could lawfully be implemented without recourse to the court.
• It is not sufficient just to see what actually happens in practice but to consider what the true powers of control actually are. The power to enter someone’s private residence is a major intrusion on liberty however much it is to the benefit of P in this case.

You read the decision here.

Comment

The CoP’s decision is a helpful reminder of the ‘acid test’ in Cheshire West but also advocates caution when assessing whether there is a deprivation of liberty: whether P is subject to “continuous supervision and control”.