KK v STCC

In these proceedings, the Court of Protection is concerned with an 82-year old woman, whom I shall refer to as “KK”, who is currently living in a nursing home, hereafter called “STCC”. All the evidence suggests that she is being looked after very well. But KK says that she wants to go home to the bungalow where she lived before she was admitted to STCC.

This judgment addresses two preliminary issues – first, the question whether KK has capacity to make decisions about her residence and care, and, secondly, whether the circumstances in which she is residing at STCC amount to a deprivation of liberty under Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

KK was born in 1929 and is therefore now aged 82. For most of her life, she lived in the North East of England. When she was three years old, she was left paralysed on the left side after receiving a diphtheria inoculation. In her early seventies, following the death of her husband after 34 years of marriage, she moved to a village in C where she settled down in a rented bungalow.

In recent years KK has developed Parkinson’s Disease and vascular dementia, and, coupled with her hemiphlegia, these conditions have significantly affected her life. For most of her life, her physical disability did not prevent her walking, but she now requires a wheelchair or a hoist to be mobilised. The local social services arranged support, including visits by care staff, meals on wheels and an emergency “lifeline” call service. In July 2009, JL of the local authority, (“CC”), was allocated as KK’s social worker. At that stage, there were a number of ongoing concerns about her vulnerability, in particular her susceptibility to frequent falls and her extensive use of the “lifeline” emergency call service. She spent short periods in hospital on a number of occasions. Carers were assisting her with all aspects of her personal care. All meals were made for her, although she was able to eat them independently. She was beginning to spend more time at night sleeping in a recliner chair rather than be assisted into bed. In short, she needed total care and required prompting, support and assistance with all activities of daily living and personal care.

On 5^th July 2010, KK was admitted to hospital following a further fall. At hospital, she presented as confused and muddled. Although she was still able to recognise the social worker when he visited, she seemed disoriented in time and place. She was assessed by a psychiatrist as lacking capacity to make decisions regarding her care needs and residence arrangements. A best interests meeting decided that she should be placed in residential and on 13^th August she moved to a nursing home in a seaside town, having expressed a preference for being by the sea. By October 2010, however, she had made some improvement and was then assessed by JL, after consultation with the nursing home matron and KK’s Independent Mental Capacity Advocate (“IMCA”), as having regained capacity to make decisions regarding care needs and residence arrangements. She was accordingly discharged home from the nursing home on 14^th December.

Thereafter, she remained at home for some seven months. During that period, she resumed her extensive use of the lifeline emergency call service. In his statement for these proceedings, JL informs the court that KK was recorded as using the lifeline service on no fewer than 1,097 occasions between January 8^th and July 6^th 2011. The vast majority of those calls related to her anxiety and need for reassurance, rather than any specific medical or social emergency. Increasingly, the calls took place during the day as well as at night. On 29^th July, KK was assessed by a community matron as lacking the capacity to make decisions about her care needs and residence. She was admitted to another local nursing home, STCC, where she was found to be suffering from dehydration and a urinary tract infection.

A further capacity assessment by JL on 10^th August again concluded that she lacked capacity to make decisions about residence and care, although she expressed a strong wish to return home. On 12^th August, STCC, being the “managing authority” for the purposes of the Deprivation of Liberty Safeguards (“DOLS”) under Schedule A1 to the Mental Capacity Act 2005, granted an urgent authorisation for the deprivation of KK’s liberty and requested a standard authorisation from the supervisory body under the DOLS, CC. On 18^th August, a capacity assessment for the purposes of the standard authorisation procedure under the DOLS was carried out by Dr T. He qualified as a doctor in 1990, became a GP in 1997 and a consultant occupational physician in 2008. He has undergone training on the DOLS delivered by the Royal College of Psychiatrists supplemented by updated training organised regionally and locally. He concluded that KK lacked capacity to make decisions regarding her care needs and residence arrangements. A standard authorisation was granted by CC on the same day.

On 2^nd September, KK filed an application under s.21 A of the Mental Capacity Act 2005 challenging the standard authorisation. On the same day, District Judge Batten gave directions in those proceedings inter alia appointing the Official Solicitor to act as KK’s litigation friend and transferring the proceedings to the High Court. On 27^th September, the matter came before me for the first time. I made directions including inter alia for a mental capacity assessment by Dr. TH, a consultant psychiatrist with 22 years of clinical experience as an NHS consultant. Meanwhile, STCC had made a further request for a standard authorisation. A further capacity assessment was carried out by Dr. T, who concluded that KK lacked capacity, and a further standard authorisation was granted on 29^th September. On 14^th October, the independent psychiatrist Dr. TH concluded her capacity assessment in which she found that KK lacked capacity to make decisions regarding her care needs and residence.

At a further hearing before me on 22^nd October, I made an order providing for a series of trial visits home for KK during the day and a further review by the court thereafter. On 8^th November, STCC made a further request for a standard authorisation but on this occasion, the application was not successful. The assessor noted that there was now an agreed proposal that KK’s time at home would be further extended and that it was proposed that the care plan could be amended to include overnight stays at home. In those circumstances, the assessor concluded that the plan was now “less restrictive”, that KK was expressing compliance with the plan and that in those circumstances she was not being deprived of her liberty.

At a further hearing on 29^th November, I made an interim declaration under s. 48 of the 2005 Act that on the evidence available to the court there was reason to believe that KK lacked capacity to make decisions about her place of residence and that it was in her best interests to continue to reside at STCC pending the final hearing or until further order. I further ordered that the application under s.21A be dismissed and that the local authority should continue to facilitate KK’s home visits as agreed between the parties in accordance with a schedule appended to the order and provided for further directions.

On 2^nd December, Dr. TH filed an addendum capacity assessment confirming her opinion that KK lacked capacity to make decisions concerning her care needs and residence. On 22^nd December STCC granted a further urgent authorisation and again requested a standard authorisation from the supervisory body. On 30^th December, CC again refused a standard authorisation, the assessor again concluding that KK was not being deprived of her liberty. KK continued to reside at STCC but also continued to visit her home on occasions with the assistance of care staff.

At a further hearing on 29^th February, I renewed the interim declarations, ordered the local authority to continue facilitating KK’s home visits daily for a period of three hours per visit unless varied by consent of the parties or in the event of an emergency and listed the matter for a contested hearing before me to determine (1) whether KK lacks capacity to make decisions regarding her care and residence and (2) whether she has been, and or is being, deprived of her liberty. I further directed that a subsequent hearing should be listed thereafter to determine what order, if any, should be made in respect of KK’s future care and welfare.

The written evidence put before me included the DOLS assessments completed in connection with the various authorisation processes undertaken by STCC and the local authority, including the mental capacity assessments undertaken by Dr. T; written statements from Mr. W, (DOLS Lead for the local authority); JL, (KK’s social worker), EB (a friend of KK’s); JM, (KK’s IMCA), and KK herself; two reports from Dr. TH; care plans, and various other material including extracts from the care home records. Oral evidence was given by Dr. TH, Dr. T, JL, Mr. W, EB and KK.

I had the benefit of detailed opening documents and skeleton arguments by the advocates for the local authority, Mr. Dooley, and KK, Miss Hirst. At my request, each advocate also prepared a supplemental note dealing with some further legal issues, in particular the implication of the decision of the Grand Chamber of the European Court of Human Rights in Austin and others v UK [2012] ECHR 459. I am grateful to the advocates for their considerable assistance in this case.

A person may be deprived of their liberty under the DOLS if the six qualifying requirements under Schedule A1 of the 2005 Act are satisfied. In those circumstances, the supervisory body, (in this case CC), may, on the application of the managing authority (in this case STCC), issue a standard authorisation for the deprivation of liberty, and, prior to the determination of an application for a standard authorisation, the managing authority may issue an urgent authorisation. The six qualifying requirements include, under paragraph 12(1)(c) of the schedule, the “mental capacity requirement”. Paragraph 15 of the schedule provides that: “the relevant person meets the mental capacity requirement if he lacks capacity in relation to the question of whether or not he should be accommodated in the relevant… care home for the purpose of being given the relevant care or treatment”.

When a standard authorisation has been made by a supervisory body, s. 21A(2) empowers the Court of Protection to determine any questions relating to, inter alia, whether P meets one or more of the qualifying requirements. In particular, once the court determines the question, it may make an order varying or terminating the standard authorisation: s. 21A(3)(a). But once an application is made to the Court under s. 21A, the Court’s powers are not confined simply to determining that question. Once its jurisdiction is invoked, the court has a discretionary power under s. 15 to make declarations as to (a) whether a person has or lacks capacity to make a decision specified in the declaration; (b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration, and (c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person. Where P lacks capacity, the court has wide powers under s. 16 to make decisions on P’s behalf in relation to matters concerning his personal welfare or property or affairs.

When addressing questions of capacity, the Court must apply the following principles.

First, a person must be assumed to have capacity unless it is established that she lacks capacity: s. 1(2). The burden of proof therefore lies on the party asserting that P does not have capacity. In this case, therefore, the burden of proof lies on CC to prove that KK lacks capacity. The standard of proof is the balance of probabilities: s. 2(4).

Secondly, the Act provides that a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain: s. 2(1). Thus the test for capacity involves two stages. The first stage, sometimes called the “diagnostic test”, is whether the person has such an impairment or disturbance. The second stage, sometimes known as the “functional test”, is whether the impairment or disturbance renders the person unable to make the decision. S. 3(1) provides that, for the purposes of s. 2, a person is unable to make a decision for himself if he is unable (a) to understand the information relevant to the decision; (b) to retain that information; (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision whether by talking, using sign language or any other means. Important guidance as to the assessment of capacity generally, and the interpretation and application of the four components of the functional test in particular, is set out in section 4 of the Mental Capacity Act 2005 Code of Practice.

Third, capacity is both issue-specific and time specific. A person may have capacity in respect of certain matters but not in relation to other matters. Equally, a person may have capacity at one time and not at another. The question is whether at the date on which the court is considering the question whether the person lacks capacity in question, in this case to make decisions as to her residence and care.

Fourthly, a person is not to be treated as unable to make a decision unless all practicable steps to help her to do so have been taken without success: s. 1(3). The Code of Practice stresses that “it is important not to assess someone’s understanding before they have been given relevant information about a decision” (para 4.16). “Relevant information” is said in paragraph 4.19 to include “what the likely consequences of a decision would be (the possible effects of deciding one way or another) – and also the likely consequences of making no decision at all”. Paragraph 4.46 of the Code of Practice adds that “it is important to assess people when they are in the best state to make the decision, if possible”.

Fifth, I bear in mind and adopt the important observations of Macur J in LBL v RYJ [2010] EWHC 2664 (Fam) (at paragraph 24), that “it is not necessary for the person to comprehend every detail of the issue … it is not always necessary for a person to comprehend all peripheral detail .…” At paragraph 58 of the judgment, Macur J identified the question as being whether the person under review can “comprehend and weigh the salient details relevant to the decision to be made”. A further point – to my mind of particular importance in the present case – was also made by Macur J at paragraph 24 in that judgment: “…it is recognised that different individuals may give different weight to different factors.”

Sixth, a person is not to be treated as unable to make a decision merely because she makes an unwise decision: s. 1(4). Paragraph 4.30 of the Code of Practice states: “It is important to acknowledge the difference between

Finally, in assessing the question of capacity, the court must consider all the relevant evidence. Clearly, the opinion of an independently-instructed expert will be likely to be of very considerable importance, but in addition the court in these cases will invariably have evidence from other clinicians and professionals who have experience of treating and working with P, the subject of the proceedings. Often there will be evidence from family and friends of P. Occasionally, as in this case, there will be direct evidence from P herself. In A County Council v KD and L [2005] EWHC 144 (Fam) [2005] 1 FLR 851 at paras 39 and 44, Charles J observed “it is important to remember (i) that the roles of the court and the expert are distinct and (ii) it is the court that is in the position to weigh the expert evidence against its findings on the other evidence… the judge must always remember that he or she is the person who makes the final decision”. That case concerned an application for a care order under Part IV of the Children Act 1989, but the principles plainly apply to proceedings under the Mental Capacity Act in general and the assessment of the functional test under s. 2 in particular. In other words, when assessing the ability of P to (a) understand the information relevant to the decision (b) retain that information, and (c) use or weigh that information as part of the process of making the decision, the court must consider all the evidence, not merely the views of the independent expert. In many cases, perhaps most cases, the opinion of the expert will be confirmed by the other evidence, but inevitably there will be cases where the court reaches a different conclusion. When taking evidence from P herself, the court must plainly be careful about assessing the capacity to understand, retain and use and weigh up information, but, whilst acknowledging the important role for expert evidence, the assessment is ultimately a matter for the court.

There is a further point, to which I alluded in an earlier decision in PH v A Local Authority, Z Ltd and R [2011] EWHC 1704 (Fam). In assessing the evidence, the court must be aware of the difficulties which may arise as a result of the close professional relationship between the clinicians and professionals treating and working with, P. In PH, I drew attention to a potential risk, identified by Ryder J in Oldham MBC v GW and PW [2007] EWHC136 (Fam) [2007] 2 FLR 597, another case brought under Part IV of the Children Act 1989, that the professionals and the court may be unduly influenced by what Ryder J called the “child protection imperative”, meaning “the need to protect a vulnerable child” that, for perfectly understandable reasons, may influence the thinking of professionals involved in caring for the child. Equally, in cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective. On the other hand, the court must be equally careful not to be influenced by sympathy for a person’s wholly understandable wish to return home.

Dr. TH assessed KK on two occasions, 13^th October 2011 and 2^nd November 2011, and prepared two reports setting out the results of her assessments.

KK has a diagnosis of vascular dementia, which in the words of Dr. TH, is “a mental disorder that could potentially affect her capacity to make decisions. This disorder by its nature … may lead to a fluctuation in cognitive function and in ability to make decisions.” Dr. TH carried out an examination of KK using the Mini Mental State Examination tool, a screening for dementia which covers a range of cognitive functions including the retention of new information. KK scored within the moderate range for a patient with dementia and with diminished scores in most of the aspects of cognitive function, which Dr. TH described as “a very typical picture”. She also carried out a Frontal Assessment Battery, a bedside tool validated for use with patients with cognitive failure through a variety of causes. The combined results suggest that KK has a mental disorder that could potentially affect her capacity to make decisions. Dr. TH expressed the view that it is likely that over a period of time KK’s cognitive function will decline in a step-wise fashion as this is the nature of her mental disorder, although it is not possible to predict exact changes in her level of cognitive function over a specific time period.

On behalf of KK, it is accepted that her condition meets the requirement of s. 2 for “an impairment of, or a disturbance in the functioning of, the mind or brain”. Thus the diagnostic test for lack of capacity is satisfied here. The issue in this case is whether the functional test is satisfied.

Dr. T – Dr. T carried out a mental capacity assessment in respect of KK on three occasions for the purposes of the standard authorisation under the DOLS. On the first occasion, his conclusion was as follows:

“KK needs total care and is requiring prompting, support and assistance with all activities of daily living and personal care. She is immobile and doubly incontinent. KK was mildly disoriented with poor attention and calculation. Although she only scored 18 out of 28 on the MMSE, she has good retention. She has allegedly regularly become agitated with regular challenging behaviours such as throwing faeces and persistently shouting inappropriately both day and night. KK denied any such behaviour. She has also become non-compliant with medication as well as her care at times. KK has a limited understanding of the needs of the level of care and support. However, this awareness is significantly limited with no recognition of foreseeable consequences of not receiving the full level of care she is likely to require. For example, despite being wheel-chair bound she believes she is able to walk, to shower herself and to be able to fetch a cup of tea. She is unable to process information around her health, safety and wellbeing. When provided with information about her medical problems, behaviours, her required level of care and her limited capability, she is unable to discuss or debate the consequences with any understanding, either denying matters or trivialising her actions; for example, she initially denied misusing her helpline, but then stated that she was lonely and wanted someone to talk to. She could not see why this was inappropriate and the consequences of such actions on her care or that of others. KK appears to have limited understanding of her circumstances, limitations and care/support requirements. As such it is my opinion KK is unable to process information, especially information about the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision.”

This assessment was completed on 18^th August 2011. Subsequent mental capacity assessments were carried out by Dr. T on 29^th September and 29^th December 2011. The description of KK’s capacity set out above was substantially repeated in largely the same words and phrasing in those subsequent assessments.

In his evidence to the court, Dr. T explained that his capacity assessments start with a blank canvas. He did not set out the care planning options, but rather focussed on KK’s wish to leave STCC and whether she was able understand and weigh in the balance information relevant to that decision. “I ask them to give me the ideal option, and that gives me the material to weigh up their capacity.”

Dr. TH – In her first interview with Dr. TH on 13^th October, KK began by saying: “All I want is to go back to the bungalow”. This was a theme she returned to repeatedly during the course of the conversation and Dr. TH observed that she was “unable to anticipate difficulties with this plan”. In response to specific questions, KK told Dr. TH that she would need two carers visiting together for two hours three times each day. Dr. TH asked her about the use of the lifeline alarm system to which KK replied: “yes that was bad, that was wicked of me, I’ll never do that again. They took it away. It was just to have a chat with someone.” In her report, Dr. TH observed that KK had struggled to recall her anxiety at being alone at home which had prompted the abuse of the online alarm, and found it hard to imagine being in such a situation of anxiety again. Dr. TH observed:

“In my opinion she was unrealistic in her assessment of her ability to cope unaided and unable to grasp the notion that the resources needed to meet her needs simply might not be available. Her ability therefore to take on new or conflicting information was impaired.”

Later in her report, Dr. TH added:

“KK does not appear to have a realistic understanding of her own limitations and difficulties and cannot take on board information concerning this from other sources if it conflicts with her own views. She is not able to weigh in the balance advantages of any compromise solutions. KK tended to be dismissive of other options raised.”

Dr. TH told KK that she was fearful that, because of her frailty and her vulnerability, loneliness, isolation and anxiety, it was likely that a placement at the bungalow would break down quickly leaving KK with no option but to return to hospital or into a care home. Dr. TH was also concerned that KK might harm herself if she were returned to the bungalow. KK’s response to all these suggestions was that she would like to take the risk. Dr. TH commented:

“She appeared to be attending to the subject matter throughout this conversation but I was not convinced that she was able to hold complex concepts in her mind in order to weigh risks and benefits and to make informed choices regarding her future.”

This led Dr. TH to conclude: “I believe on balance that she lacks capacity to make decisions about her place of residence.”

In her oral evidence, Dr. TH expressed the view that KK’s understanding of information was superficial. She was able to understand information and retain it, but unable to appreciate the consequences of the information and unable to use or process the information in reaching a decision. Dr. TH described in oral evidence how KK, when questioned about the misuse of the lifeline, had answered very quickly and spontaneously but, in Dr. TH’s view, at a superficial level. “She might have understood that she was wrong to use the system in this way, but I’m not sure she understood why”. Dr. TH though that KK was “quite unrealistic as to her abilities”, citing the example of making a cup of tea which is not the case, according to staff at the STCC. In cross-examination, Dr. TH expressed the view that KK had understated the problems not because she wanted to persuade Dr. TH whilst understanding the extent of the problems but because she genuinely did not recognise them.

Following her second interview, Dr. TH moved towards thinking that KK lacked understand as well as the capacity to weigh up the information. Dr. TH observed that this may have been because she was getting to know KK better, or it may have been because KK was not functioning as well on the second visit.

Staff at STCC informed Dr. TH that, despite KK’s discontent and continued expressed wish to leave STCC, she appears more settled there. Most of her most difficult behaviour had subsided. Staff tend not to discuss options of other care arrangements with KK for fear of upsetting her. At times, it was reported that she can be demanding and want instant attention. She finds it hard to understand any delay in her gratification, whatever the reason. She attracts the attention of staff by banging crockery or other items incessantly on her table and chose to do this rather than using the staff call button which was constantly within her reach. Members of staff at STCC told Dr. TH that it was unlikely that KK would cope at home. She would be incapable of making herself a cup of tea or preparing any food and would be unable to move from her chair without assistance. Prior to the preparation of Dr. TH’s second report, KK had started her regular visits home on several days a week. Dr. TH was told by care staff at STCC that KK had greatly enjoyed these excursions and that it was planned to extend them to take place everyday. The matron at STCC described this as “the ideal care package with return to STCC home for overnight support.”

JL – The local authority also relies on capacity assessments carried out by other professionals, in particular JL, KK’s allocated social worker. As described in the chronology above, an earlier assessment of capacity in July 2010 had concluded that KK lacked capacity to determine her place of residence. In January 2011, however, JL reviewed that decision and concluded that she did have capacity. In August 2011, however, JL carried out a further assessment and on this occasion reached a different conclusion. He assessed her to have the ability to retain information but not the ability to use it.

“She has the ability to retain the information but not the ability to consider the consequences. She believes that she can just stop using the lifeline if she is given one last chance. This has been tried previously and she hasn’t been able to and she hasn’t the insight to see that she will not be able to do it next time either and that she has care needs through anxiety which cannot be met by the current care package whereby she is alone for twelve hours overnight. ”

In a subsequent statement in these proceedings, dated 14^th December 2011, JL referred to problems that had arisen during the home visits by KK to her bungalow. During those visits, it was reported that she ate and drank little, was on one occasion found unwell and asking to return to STCC. On examination it was found that she was suffering from a urinary tract infection and the home trial was suspended. Home visits were subsequently restarted but staff at STCC continued to express some concerns. In this most recent statement, he noted that there was still concerns about her fluid consumption and nutritional intake during her visits, her refusal to use the hoist at home, and a number of occasions when she had refused to go home during a three week period in April 2012, complaining on one occasion that she had been “forced” to go home. On the basis of this evidence, JL in his oral evidence observed that KK’s inability to consider consequences of her actions was not limited to her misuse of the lifeline but also extended to her nutritional and personal care needs.

Dr. T – Miss Hirst submits on behalf of KK that all three assessments carried out by Dr. T were inadequate. She points out that large portions of each assessment were simply copied from one box into another and from one assessment to the next. The assessments give insufficient detail about the basis on which Dr. T reached his views and the communication he had had with KK before reaching his conclusions. Furthermore, Miss Hirst submits on behalf of KK that Dr. T’s conclusions were based on a false premise. The alternative to KK remaining at STCC was not, and had never been, KK living independently without support at home. The question which Dr. T should have considered, in Miss Hirst’s submission, was whether KK was capable of weighing up the care she received at STCC with a hypothetical package of care at home. In other words, it was not appropriate to start the process with a “blank canvas”. It is submitted on behalf of KK that the care package that might be available if she were to return home was a key factor in determining capacity, particularly where, as here, findings as to capacity relied heavily on her supposed inability to weigh up the risks or consequences of a decision to return home.

The second statement of Mr. W, DOLS Lead for the local authority, disclosed that Dr. T has completed a total of 233 DOLS mental health and mental capacity assessments on behalf of the supervising authority in C. The vast majority of these assessments have been for people who have been diagnosed with dementia. Records indicate that Dr. T has found that the person being assessed has capacity to make decisions regarding their care and residence on only three occasions. On behalf of KK, Miss Hirst relies on this statistic as undermining the reliability of Dr. T’s assessment in this case.

Dr. TH – On behalf of KK, Miss Hirst makes a number of criticisms of Dr. TH’s assessment. First, she submits that it is apparent from Dr. TH’s assessment that her view of capacity was influenced by considerations of resources. In Dr. TH’s opinion, KK’s ability to process information was based on her view that KK was unrealistic about the resources available. Miss Hirst submits that there had in fact been no suggestion to KK that resources were not available to support a return home, or that lack of resources was a factor in continuing her residence at STCC.

Secondly, Miss Hirst submits that the validity of Dr. TH’s assessment was undermined by the lack of any realistic alternative being offered by the local authority other than residence at STCC. It was submitted that it was not indicative of a lack of capacity for KK to assume that a similar care package would be available if she returned home. In fact, Miss Hirst submits that KK’s own view about the care package needed accorded with that of others. Miss Hirst adds in her closing submissions that Dr. TH (and Dr. T) had accepted in evidence that it had not been clear, at the time of the assessments, what care package might be in place if KK were to return home. Miss Hirst submitted that this was a key factor in determining capacity, particularly where, as in this case, findings as to capacity relied heavily on her supposed inability to weigh up the risks or consequences of a decision to return home. It is obvious that the risks of a decision to return home where no care was available would be much higher than the risks of a decision to return home with the appropriate package of care.

Further, Miss Hirst submits that Dr. TH conflated the question of capacity with the question of best interests. Miss Hirst observed that KK’s firmly held opinions about what would be best for her were not necessarily indicative of a lack of capacity, even if they did not accord with Dr. TH’s opinions. Finally, Miss Hirst submits that Dr. TH gave no consideration to what practical steps might be taken to assist KK to make an effective decision. In that respect, there was, submits Miss Hirst, a breach of the statutory principles and the Code of Practice.

JL – Miss Hirst submits that JL attached excessive weight to KK’s excessive use of the lifeline. Miss Hirst submitted that the lifeline was not a factor which of itself indicated that KK had lost capacity to make decisions about her care and residence. So far as nutrition is concerned, Miss Hirst points out that the visits home were stopped after 6^th December 2011 because KK was diagnosed with a urinary tract infection and then with left lung pneumonia, not because of any concerns about KK’s food or drink consumption. Once KK had recovered, the home visits restarted, and continue to this day.

Unusually, although not uniquely, this court received evidence from KK herself to assist in determining the question of capacity, not only in a written statement but also orally in court.

In her oral evidence KK repeated that she wanted to live in her bungalow. She said: “Everything I’ve got is in that bungalow. My whole life. Everything there is familiar to me. I’ve got my hobbies. I’ve got all sorts of things. I am doing a model village. It is in my bedroom in the bungalow.” I asked KK how she got to her bungalow from the court. In reply, she correctly said that you have to go over a bridge, but gave the wrong name for the bridge. When I asked how long it would take to get there, she immediately replied “it depends on the traffic – a good half hour”. She told me that she could see everything in the village from her bungalow window – the church and the tower, the whole village. She collects porcelain dolls. She goes to the bungalow every day and spends several hours there before returning to STCC for the afternoon where she tends to sit in her room. Taxis take her to and from the bungalow. She has a special taxi, able to take the wheelchair. She now goes home three hours everyday.

Turning to nutrition and hydration, KK gave the following evidence in her statement:

“When left at my bungalow with food I have struggled in being able to reach the food that is left on my table as my table has been filled with lots of different things and often the food gets pushed nearer the back. I have also struggled to drink some of the drinks left out as it has been difficult lifting the drink and moving the straw as my right hand has a tremor. If I was to return to my bungalow I would look forward to planning my meals and writing a shopping list with carers. The cooks at STCC try hard to make meals which I will enjoy, whilst I appreciate their efforts I generally do not like what they cook. I drink “Ensure” nutrition drinks to supplement my diet. I like the taste of these drinks and have asked to be put back on to them. … I get frustrated that STCC’s staff mash my food up and give me a spoon to eat it with. I do not need my food mashed up or a spoon to eat with. I do not think that my diet would be any worse if I returned to the bungalow as I would have meals of choice prepared for me and carers present to assist me with eating.”

I asked her about her food intake during her oral evidence. She said that she could have what she liked for breakfast but usually just had a glass of milk. She repeated in oral evidence that the food was not very good at STCC – “like baby food”. She said that her favourite food was salad. She said that she could make a cup of tea for herself but she does not do so because her legs “are not too good”.

As to her future care needs, KK observed as follows in her statement:

“I have considered what level of care that I would need whilst at home. I acknowledge that I need assistance in washing including myself, toileting, preparation of food and day-today chores. I anticipate that this could be adequately provided for with four, one hour care visits a day. It may be considered that I need an increased package. I am willing to discuss a suitable package with care professionals. I get on well with my social worker JL and respect his view and opinions. I do not believe that I would need care overnight. Usually I go to bed at 1900hrs and wake at 6 o’clock. Prior to my transfer to STCC I was put to bed by carers at approximately 1900hrs and was visited again at approximately 6 o’clock at which time they would wash and dress me and put me in my recliner chair. This worked well. This routine is similar to that which is in place at STCC.”

In her oral evidence, KK repeated that she would need four visits a day from two carers.

In cross-examination Mr. Dooley asked KK about the cases when she had declined to go on the home visits. She said that on a couple of occasions she had not fancied going back because of the weather. There is a long path up to the bungalow. She was concerned that it might be slippery and that she might be blown over in her wheelchair.

In her statement, KK acknowledged that whilst at the bungalow she used the lifeline alarm excessively. She adds: “I understand why this was inappropriate and consider my behaviour in using it so much to have been silly.” In oral evidence, she reiterated that she accepted that she had been using the lifeline in a wrong way. She said “I was nervous”. She added, however, “but I have learnt my lesson.” She was asked what would happen if she fell over. She replied: “If I die on the floor, I die on the floor. I’d rather die in my own bungalow, I really would.”

On behalf of the applicant, Mr. Dooley submitted that it was unusual for the subject of proceedings in the Court of Protection to give oral evidence. He accepted that the court was entitled to consider any evidence in coming to its decision but submitted that the medical and psychiatric opinion, including the opinion of the independent expert Dr. TH and the evidence of the social worker JL, was consistent in finding that KK lacks capacity to make decisions regarding her care and residence. In those circumstances, Mr. Dooley invited the court to prefer the evidence of the professionals to that of KK herself.

In her oral evidence, KK conceded that if she went home she might not like it but asserted that she would not be lonely. On behalf of the local authority, Mr. Dooley submits that this is flatly contradicted by other evidence and further demonstrates KK’s inability to weigh up information that does not concur with her fixed view that she should return to the bungalow. He points out that the model village is in fact located in a room in her bungalow which she has not been able to access for a number of years.

On behalf of KK, Miss Hirst submits that her evidence was clear and lucid and that she demonstrated an understanding of, and an insight into, her care needs and the reality of life if she returned home. In particular, Miss Hirst draws attention to the fact that KK was fully aware of the care provided for her at STCC and what had been provided when she was previously at home. She was clear about the role of the carers who had accompanied her to court and gave a lucid explanation of how she had travelled to court and the daily arrangements for her visits home. When asked what care package she thought she would require if she returned home, her view was that she would require two carers visiting four times a day. Her oral and written evidence about her food and drink intake was she does not like the food at STCC because it is bland and “baby-fied”.

When KK became ill with pneumonia in December 2011, she did not insist on having home visits, preferring to remain in STCC. On her behalf, it is submitted that this indicates her understanding of her care needs and her ability to be realistic about them. Similarly, Miss Hirst relies on KK’s explanation for her reasons for refusing to return home on several occasions in April 2012 because of the weather. Miss Hirst submits that her evidence on this point is indicative of her level of awareness of the consequences of her decision-making.

Miss Hirst submits that KK’s awareness that her use of the lifeline was inappropriate is further evidence of her level of understanding. The lifeline has now been withdrawn and on home visits KK has only the use of the telephone which is placed within reach. Miss Hirst points out that there is no evidence that during home visits KK has been using the telephone inappropriately or to make calls to the emergency services.

Although KK said at one point in her evidence that she could dress herself “if she had to”, Miss Hirst submits that overall KK was realistic about the level of personal care she would require and acknowledged that walking was dangerous because her legs were unsteady. In addition, Miss Hirst points out that there is no evidence that KK in fact tries to walk or dress herself or provide any care for herself either at STCC or during home visits. Miss Hirst submits that she did not minimise the extent of the care that she would require but rather fully and frankly acknowledged what her needs were.

Overall, the local authority relies squarely on the evidence of Drs T and TH. Mr. Dooley submits that KK’s awareness of her care needs is superficial. While she may have a general understanding of the decisions that need to be made, she lacks understanding of the likely consequences of her decisions and furthermore lacks the ability to process information about the decisions and use it to help her make a decision.

The position advanced on behalf of KK is that the capacity assessments conducted to date have been flawed, and have failed to apply the statutory guidance and statutory principles in s.1 of the Act. In particular, it is submitted that those assessing KK’s capacity have (1) failed to take steps to assist KK to make a decision, in particular about offering her alternatives to continued residence at STCC; (2) equated her opposition to residence at STCC with a lack of ability to retain, weigh up or understand information and (3) wrongly assumed that the decision that KK is required to make is one between adequate care at STCC and deficient care at home. The misuse of the lifeline, and the need for overnight reassurance which it represented, were not considered sufficiently strong enough factors to rebut the statutory presumption of capacity during the lengthy period of time KK was at home between December 2010 and July 2011. It was only once she reached the hospital in July 2011 that her supposed lack of insight into the use of the lifeline was thought to be indicative of lack of capacity. It is submitted that the lifeline issue was not a sufficient basis on which to find that she lacked capacity particularly given the insight she displayed into her care needs and the means for meeting those at home.

Furthermore, there was no attempt in the assessment of 10^th August 2011 to consider any other ways of meeting KK’s reported anxiety needs at home at night. She was not, submits Miss Hirst, being asked to choose between one method of delivering care at STCC and another at home; she was effectively being asked to agree that her previous use of the lifeline rendered it impossible for her to return home at all.

Miss Hirst submits that KK demonstrates understanding of her care needs, how those needs might be met at home, and an awareness of the concerns raised by STCC and the local authority relating to her food and drink consumption and her alleged need for overnight reassurance. She has given reasons why her food and drink consumption is low – because she does not have a large appetite, struggles with large plates of food, does not like the food cooked at STCC, and gets frustrated by staff mashing up her food. So far as food consumption at home was concerned, KK has argued that she has struggled to reach the food left for her on the table and also has difficulty drinking through a straw because of a tremor in her hand as a result of her Parkinson’s Disease.

In conclusion, Miss Hirst submits that KK has to date not been assisted to make any decision. In particular, despite the relative ease of practical steps such as the trial of a night sitter, there have been no efforts by the local authority to test KK’s supposed needs for reassurance at night. It is therefore wholly unclear, submits Miss Hirst, that KK’s assertion that she does not require such reassurance is wrong or demonstrates lack of insight. Such evidence as exists from STCC, suggests that KK’s night time care needs have declined to an occasional need for reassurance. Miss Hirst rightly points out that capacity to make a decision which professionals consider unwise is still “capacity” within the meaning of the Act. KK’s position – that she would like to take the risk of returning home notwithstanding the potential problems, - is both logical and evidence of her capacity to make decisions about her care and residence.

I acknowledge that there is consensus amongst the professionals who gave evidence that KK has lost the capacity to make decisions concerning her residence. These opinions are of course important evidence, but as stated above it is the court alone that is in the position to weigh up all the evidence as to the functional test and thus it is the court that must make the ultimate decision.

I had some concerns about Dr. T’s analysis. The fact that there was a large amount of repetition in his successive assessments leads me to question whether he was in fact making a fresh assessment on each occasion he was called upon to do so. Dr TH was an impressive witness who had clearly carried out a conscientious and careful assessment. But I must consider her report, and all the professional evidence, in the context of all the other evidence. In particular in this case, I consider it in the light of KK’s own evidence.

I remind myself that the court must be careful when weighing up the evidence of someone in KK’s position against expert opinion evidence. Nonetheless, I found her to be clear and articulate. She betrayed relatively few signs of the dementia which, I accept, afflicts her. Furthermore, I agree with Miss Hirst that she demonstrated an understanding of and insight into her care needs and the reality of life if she returned home. She clearly understands that she is in need of total support and would need carers to visit four times a day. Although she said she could dress herself “if I had to”, I did not interpret this as indicating a significantly exaggerated or distorted view of her capabilities. On the contrary, I found her to be broadly realistic as to her physical limitations. My conclusion on this point is that, whilst KK may have underestimated or minimised some of her needs, she did not do so to an extent that suggests that she lacks capacity to weigh up information.

A fundamental point in this case is the principle articulated by Macur J in LBJ v RYJ (supra) that in evaluating capacity the court must recognise that different individuals may give different weight to different factors. There is, I perceive, a danger that professionals, including judges, may objectively conflate a capacity assessment with a best interests analysis and conclude that the person under review should attach greater weight to the physical security and comfort of a residential home and less importance to the emotional security and comfort that the person derives from being in their own home. I remind myself again of the danger of the “protection imperative” identified by Ryder J in Oldham MBC v GW and PW (supra). These considerations underpin the cardinal rule, enshrined in statute, that a person is not to be treated as unable to make a decision merely because she makes what is perceived as being an unwise one.

In a recent lecture to the South Central Regional Branch of Solicitors for the Elderly, entitled “Safeguarding and Dignity: Protecting Liberties – When is Safeguarding Abuse?” (now published in Brunswick Mental Health Care Review 2012 Vol 7 issue 18), Munby LJ observed:

“The fact is that all life involves risk, and the elderly and the vulnerable are exposed to additional risks and to risks they are less equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance. We must be willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular the vital good of the elderly or vulnerable person’s happiness and dignity. The State must be careful to ensure that in rescuing a vulnerable adult from one type of abuse it does not expose her to the risk of treatment at the hands of the State which, however well intentioned, can itself end up being abusive of her dignity, her happiness and indeed of her human rights. What good is it making someone safer if it merely makes them miserable? None at all! And if this is where safeguarding takes us, then is it not, in truth, another form of abuse – and, moreover, abuse at the hands of the State?”

In this case, I perceive a real danger that in assessing KK’s capacity professionals and the court may consciously or subconsciously attach excessive weight to their own views of how her physical safety may be best protected and insufficient weight to her own views of how her emotional needs may best be met.

This danger is linked, in my view, to a further problem with the local authority’s approach in this case. I agree with Miss Hirst that, in assessing capacity it is inappropriate to start with a “blank canvas”. The person under evaluation must be presented with detailed options so that their capacity to weigh up those options can be fairly assessed. I find that the local authority has not identified a complete package of support that would or might be available should KK return home, and that this has undermined the experts’ assessment of her capacity. The statute requires that, before a person can be treated as lacking capacity to make a decision, it must be shown that all practicable steps have been taken to help her to do so. As the Code of Practice makes clear, each person whose capacity is under scrutiny must be given “relevant information” including “what the likely consequences of a decision would be (the possible effects of deciding one way or another)”. That requires a detailed analysis of the effects of the decision either way, which in turn necessitates identifying the best ways in which option would be supported. In order to understand the likely consequences of deciding to return home, KK should be given full details of the care package that would or might be available. The choice which KK should be asked to weigh up is not between the nursing home and a return to the bungalow with no or limited support, but rather between staying in the nursing home and a return home with all practicable support. I am not satisfied that KK was given full details of all practicable support that would or might be available should she return home to her bungalow.

When considering KK’s capacity to weigh up the options for her future residence, I adopt the approach of Macur J in LBJ v RYJ (supra), namely that it is not necessary for a person to demonstrate a capacity to understand and weigh up every detail of the respective options, but merely the salient factors. In this case, KK may lack the capacity to understand and weigh up every nuance or detail. In my judgment, however, she does understand the salient features, and I do not agree that her understanding is “superficial”. She understands that she needs carers four times a day and that is dependent on them for supporting all activities in daily living. She understands that she needs to eat and drink, although she has views about what she likes and dislikes, and sometimes needs to be prompted. She understands that she may be lonely at home and that it would not be appropriate to use the lifeline merely to have a chat with someone. She understands that if she is on her own at night there may be a greater risk to her physical safety.

In weighing up the options, she is taking account of her needs and her vulnerabilities. On the other side of the scales, however, there is the immeasurable benefit of being in her own home. There is, truly, no place like home, and the emotional strength and succour which an elderly person derives from being at home, surrounded by familiar reminders of past life, must not be underestimated. When KK speaks disparagingly of the food in the nursing home, she is expressing a reasonable preference for the personalised care that she receives at home. When she talks of being disturbed by the noise from a distressed resident in an adjoining room, she is reasonably contrasting it with the peace and quiet of her own home.

The local authority has attached considerable importance to KK’s excessive use of the lifeline in the first half of 2011. I infer that this was an important factor in the decision to move her back to STCC. It remains a significant factor in the professionals’ assessment of her capacity. To my mind, however, the local authority has not demonstrated that it has fully considered ways in which this issue could be addressed, for example by written notes or reminders, or even by employing night sitters in the initial stage of a return home. I also note that during KK’s daily home visits it has not been reported that she has used the telephone in ways similar to her previous use of the lifeline, although in the latter stages of her period at home prior to admission to care in July 2011 she was apparently using the lifeline excessively during the day as well as at night. Ultimately, however, I am not persuaded that calling an emergency service because one feels the need to speak to someone in the middle of the night, without fully understanding that one has that need or the full implications of making the call, is indicative of a lack of capacity to decide where one lives.

Another factor which features strongly in the local authority’s thinking is KK’s failure to eat and drink. Here again, however, I conclude that more could be done to address this issue by written notes and reminders, and by paying greater attention to KK’s likes and dislikes. KK is not the only older person who is fussy about what she eats and drinks.

I do not consider the fact that KK needs to be helped about overusing the lifeline, or reminded to eat and drink regularly, carry much weight in the assessment of her capacity. Overall, I found in her oral testimony clear evidence that she has a degree of discernment and that she is not simply saying that she wants to go home without thinking about the consequences. I note in particular that for a period earlier this year she elected not to go on her daily visits to the bungalow because of the inclement weather. This is, to my mind, clear evidence that she has the capacity to understand and weigh up information and make a decision. Likewise, I consider her frank observation that “if I fall over and die on the floor, then I die on the floor” demonstrates to me that she is aware of, and has weighed up, the greater risk of physical harm if she goes home. I venture to think that many and probably most people in her position would take a similar view. It is not an unreasonable view to hold. It does not show that a lack of capacity to weigh up information. Rather it is an example of how different individuals may give different weight to different factors.

This case illustrates the importance of the fundamental principle enshrined in s. 1(2) of the 2005 Act – that a person must be assumed to have capacity unless it is demonstrated that she lacks it. The burden lies on the local authority to prove that KK lacks capacity to make decisions as to where she lives. A disabled person, and a person with a degenerative condition, is as entitled as anyone else to the protection of this presumption of capacity. The assessment is issue-specific and time specific. In due course, her capacity may deteriorate. Indeed that is likely to happen given her diagnosis. At this hearing, however, the local authority has failed to prove that KK lacks capacity to make decisions as to where she should live.

It will now be for the local authority and KK to discuss what happens next. It is not a matter for me to determine or even advise. One course may be for the local authority to put together a proposal for a series of trial overnight visits, with all necessary support, to enable KK to experience being back in the bungalow at night so that she can reach a decision whether she in fact wishes to move back. During that process, the local authority would doubtless be monitoring her capacity, and may of course return to this Court if it concludes that she no longer meets the functional test. But before doing so, it must be careful to ensure that it complies fully with the statute and Code of Practice, taking all practicable steps to enable KK to make decisions for herself.

The starting point for any discussion of the legal principles arising on the issue of deprivation of liberty is Article 5 of ECHR which provides as follows.

“1.

Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a)

the lawful detention of a person after conviction by a competent court;

(b)

the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c)

the lawful arrest of detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d)

the detention of a minor by lawful order for the purpose of educational supervision of his lawful detention for the purpose of bringing him before the competent legal authority;

(e)

the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drugs addicts or vagrants;

(f)

the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2.

Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

3.

Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a Judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4.

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5.

Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

Although not binding on this country, Article 2 of Protocol 4 of the Convention is also relevant because, as observed by Lord Hope of Craighead in Austin and another v Commissioner of Police of the Metropolis [2009] UKHL 5, [2009] 1 AC 564, para 15, it helps to put the ambit of Article 5 in its proper perspective. Article 2 of Protocol 4 provides:

“1.

Everyone lawfully within the territory of a State shall, within that territory, have the right to liberty of movement and freedom to choose his residence.

2.

Everyone shall be free to leave any country, including his own.

3.

No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

4.

The rights set forth in paragraph 1 may also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society.”

In HL v United Kingdom (2005) 40 EHRR 32, the European Court of Human Rights held that the use of the common law doctrine of necessity to detain and restrain patients who lacked capacity when detention was in their own best interests did not meet the requirements of Article 5(1)(e) and that such a detention must be carried out in accordance with a procedure prescribed by law. It was as a result of that decision that Parliament passed the amendments to the Mental Capacity Act that introduced the DOLS, now contained in Schedule A1 to the Act, preceded by a series of amendments to the body of the statute, starting with the new s. 4A, which provides

“(1)

This Act does not authorise any person (“D”) to deprive any other person (“P”) of his liberty.

(2)

But that is subject to–

(a)

the following provisions of this s., and

(b)

s. 4B [concerning life-sustaining treatment].

(3)

D may deprive P of his liberty if, by doing so, D is giving effect to a relevant decision of the court.

(4)

A relevant decision of the court is a decision made by an order under s. 16(2)(a) in relation to a matter concerning P's personal welfare.

(5)

D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty).”

As described above, where a person has been made subject to an urgent or standard authorisation under the DOLS, the Court of Protection may under s. 21A be asked to determine questions relating to the authorisation, and thereupon may exercise its powers to make declarations under s. 15, including under subs. (1)(c), as to the lawfulness or otherwise of any act done, or yet to be done, in relation to that person. Thus, this Court is now asked to declare that KK “has been, and/or is being, deprived of her liberty” at STCC.

S. 64(5) of the 2005 Act provides that references to “deprivation of liberty” in the Act have the same meaning as in Article 5(1) of ECHR. Any analysis of whether P has been in fact deprived of his liberty must therefore have close regard to the jurisprudence of the European and English courts on the interpretation of that Article. A comprehensive list of the earlier cases is set out in the judgment of Munby LJ in Cheshire West and Chester Council v P [2011] EWCA Civ 1257 [2001] 2 FLR 583 at para 15. The most important authorities are, first, the cases described by Munby LJ as “the two foundational decisions of the Strasbourg court”, namely Engel and Others v The Netherlands (No 1) (1976) 1 EHRR 647 and Guzzardi v Italy (1981) 3 EHRR 333; the two most recent decisions of the European Court in the field of community and social care, namely HL v United Kingdom (supra) and Storck v Germany(2005) 43 EHRR 96; and the series of recent domestic cases in the same field, starting with the decision on Munby J (as he then was) prior to the implementation of the Mental Capacity Act in DE v JE and Surrey County Council[2006] EWHC 3459 (Fam), [2007] 2 FLR 1150 and culminating in two recent decisions of the Court of Appeal following the implementation of that Act, P and Q v Surrey County Council[2011] EWCA Civ 190, [2011] 2 FLR 583 [2011] COPLR Con Vol 931 in which the Court upheld a decision of Parker J at first instance reported as Re MIG and MEG [2010] EWHC 785 (Fam), [2010] COPLR Con Vol 850, and Cheshire West and Chester Council v P (supra) in which a different constitution of the Court overturned a decision of mine reported as Cheshire West and Chester Council v P and M [2011] EWHC 1130 (COP), [2011] COPLR Con Vol 273. In both of those recent cases, the Court of Appeal also cited and attached weight to cases involving alleged breaches of Article 5 in other contexts, in particular cases involving control orders and police crowd control methods known as “kettling”, of which the most significant was the decision of the House of Lords in Austin and another v Commissioner of Police of the Metropolis (supra).

Before summarising that jurisprudence, I note that, in the period between the conclusion of the hearing in this case and the delivery of this judgment, the Supreme Court has given permission to appeal against both of the two Court of Appeal decisions cited above, P and Q and Cheshire West. There is thus some uncertainty on the future interpretation of the deprivation of liberty provisions under the 2005 Act. It is obviously of great importance to all professionals practising in this field that this uncertainty is resolved promptly. I have debated whether to adjourn consideration of the question whether KK is being or has been deprived of her liberty until after the Supreme Court has considered the appeals. I understand, however, that the hearing in the Supreme Court may not take place for some time. In those circumstances, it is clearly preferable to resolve the issue in this case without further delay.

Pending that hearing, the law as it stands can be summarised as follows.

When determining whether there is a “deprivation of liberty” within the meaning of Article 5, three conditions must be satisfied, namely (a) an objective element of a person’s confinement in a certain limited space for a not negligible time; (b) a subjective element, namely that the person has not validly consented to the confinement in question, and (c) the deprivation of liberty must be one for which the State is responsible: see Storck v Germany (2005) (supra) and JE v DE and Surrey CC, (supra).

In this case, the second and third elements are plainly satisfied. I have found that KK has capacity to make decision as to her residence and care, and at no times has she consented to her placement at STCC. It should be noted that, had I decided that she did not have capacity, the second element would also have been satisfied, because any consent can only be valid if the person has capacity to give it: Storck v Germany (supra). So far as the third element is concerned, although the confinement may effected by a private individual or institution, the third element will be satisfied if it is imputable to the State as a result of the direct involvement of public authorities, through the authorisation procedure under Schedule A1, or an order of the court. The question in this case is thus whether the first, objective, element is satisfied.

When considering the objective element, the starting point is as described in Guzzardi v Italy (supra) at paras 92-93:

“in proclaiming the “right to liberty”, paragraph 1 of Article 5 is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion … the paragraph is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No 4 ... In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question ...

The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends.”

Thus when determining whether the circumstances amount to a deprivation of liberty, as opposed to a mere restriction of liberty, the court looks first at the concrete situation in which the individual finds herself and takes account of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question, bearing in mind that the difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. As Munby LJ observed in Cheshire West at paras 34-35 and 102, “account must be taken of the individual’s whole situation … the context is crucial.”

At a more practical level, guidance is given as to the identification of a situation that amounts to a deprivation of liberty in the Deprivation of Liberty Safeguards Code of Practice 2008. Chapter 2 of the Code is entitled “What is a deprivation of liberty?” At paragraph 2.5, there is what is described as a “non-exhaustive” list of factors pointing towards there being a deprivation, namely where

In P and Q (supra), Wilson LJ (as he then was) gave further guidance to be followed when determining whether an individual’s circumstances amount to a deprivation of liberty. A person’s happiness, as such, is not relevant as to whether he or she is deprived of their liberty (para 24). If the person objects to their confinement, however, that is relevant to the objective element of the test (para 25, citing DE v JE and Surrey County Council, supra). The consequence of such an objection will be conflict. At the very least there will be arguments and P will suffer the stress of having his or her objections overruled. More probably, there will be tussles and physical restraints. As Wilson LJ said at paragraph 25, “this level of conflict inherent in overruled objections seems to me to be highly relevant to the objective element.” He added, however, that “equally the absence of objections generates an absence of conflict and thus a peaceful life, which seems to me to be capable of substantial relevance in the opposite direction.”

Importantly, Wilson LJ (approving the approach of Parker J at first instance) considered that the relative normality of the individual’s life will be relevant. If P is living with his parents or other members of his natural family, in their home, he is living what Wilson LJ described (at para 28) as “the most normal life possible”. Typically, but not always, there will be no deprivation of liberty in such circumstances. Even when the person lives in an institution rather than a family home, there is a wide spectrum which Wilson LJ portrays as running between “the small children’s home or nursing home, on the one hand, and a hospital designed for compulsory detention”. It is necessary, he advised, to place each case along the spectrum. A further factor which Wilson LJ considered relevant is whether the individual goes out of the residential home for any purpose. The example he gave was of a child or a young adult who attends school or college or a day centre or other form of occupation. He described this as “a sign of normality which may indicate that the circumstances do not amount to a deprivation of liberty”. In the context of the present case, this observation also applies, in my judgment, to regular visits by KK to her bungalow. Such visits may amount to “a sign of normality”.

In Cheshire West, the Court of Appeal reiterated the importance of “normality” in assessing whether the circumstances amount to a deprivation of liberty, but added a further dimension – the concept of the relevant comparator – to address a problem posed by Munby LJ at paras 38-39:

“38.

The emphasis upon the concrete situation, the context, is obviously important but in truth it does little more than describe a forensic process. Reference to the degree and intensity of the restriction no doubt gives some indication of the principle in play but it hardly provides a benchmark or yardstick by which to evaluate the circumstances and assess whether or not there is a deprivation of liberty. And the call to examine the facts can too easily lead to the worrying and ultimately stultifying conclusion that the decision in every case can safely be arrived at only after a minute examination of all the facts in enormous detail.

39.

This cannot be right. There must be something more which enables us to pursue a more focussed and less time-consuming enquiry. In my judgment there is. The task is to identify what it is we are comparing X’s concrete situation with. In short, what is the relevant comparator?”

This question is analysed in the following paragraphs leading to the following conclusion at para 102 (viii) to (xii):

“In determining whether or not there is a deprivation of liberty, it is always relevant to evaluate and assess the ‘relative normality’ (or otherwise) of the concrete situation …. But the assessment must take account of the particular capabilities of the person concerned. What may be a deprivation of liberty for one person may not be for another. … In most contexts (as, for example, in the control order cases) the relevant comparator is the ordinary adult going about the kind of life which the able-bodied man or woman on the Clapham omnibus would normally expect to lead …. But not in the kind of cases that come before the Family Division or the Court of Protection. A child is not an adult. Some adults are inherently restricted by their circumstances. The Court of Protection is dealing with adults with disabilities, often, as in the present case, adults with significant physical and learning disabilities, whose lives are dictated by their own cognitive and other limitations …. In such cases the contrast is not with the previous life led by X (nor with some future life that X might lead), nor with the life of the able-bodied man or woman on the Clapham omnibus. The contrast is with the kind of lives that people like X would normally expect to lead. The comparator is an adult of similar age with the same capabilities as X, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations as X. Likewise, in the case of a child the comparator is a child of the same age and development as X.”

I anticipate that this aspect of the decision in Cheshire West will receive particular scrutiny in the Supreme Court. It has been the subject of academic criticism on the grounds that, insofar as it may permit some people to be denied a declaration of deprivation of liberty in circumstances where others would be entitled to such a declaration, it may be discriminatory. The decision of the Court of Appeal is, of course, binding on this court.

A further uncertainty arising from the Cheshire West decision in the Court of Appeal concerns the relevance of the purpose for which the individual is in the placement when determining whether that placement amounts to a deprivation of liberty. On this point, it would not be appropriate, in a first instance judgment that is already lengthy, to traverse the ground analysed by Munby LJ in Cheshire West (supra) at paras 60 to 77. His conclusion, however, is stated at para 102 (vi) and (vii):

“In determining whether or not there is a deprivation of liberty, it is legitimate to have regard both to the objective ‘reason’ why someone is placed and treated as they are and also to the objective ‘purpose’ (or ‘aim’) of the placement …. Subjective motives or intentions, on the other hand, have only limited relevance. An improper motive or intention may have the effect that what would otherwise not be a deprivation of liberty is in fact, and for that very reason, a deprivation. But a good motive or intention cannot render innocuous what would otherwise be a deprivation of liberty. Good intentions are essentially neutral. At most they merely negative the existence of any improper purpose or of any malign, base or improper motive that might, if present, turn what would otherwise be innocuous into a deprivation of liberty. Thus the test is essentially an objective one.”

This analysis was, to some extent, based on the speeches in the House of Lords in the Austin (“kettling”) case. It now has to be read in the light of the decision of the Grand Chamber of the European Court in that case, reported as Austin and others v United Kingdom [2012] ECHR 459, and in particular the observation at para 58 – 59 of the majority judgment:

“… [T]he purpose behind the measure in question is not mentioned in [previous judgments of the European Court] as a factor to be taken into account when deciding whether there has been a deprivation of liberty. Indeed, it is clear from the Court’s case-law that an underlying public interest motive, for example to protect the community against a perceived threat emanating from an individual, has no bearing on the question whether that person has been deprived of his liberty, although it might be relevant to the subsequent inquiry whether the deprivation of liberty was justified under one of the subparagraphs of Article 5(1) …. The same is true where the object is to protect, treat or care in some way for the person taken into confinement, unless that person has validly consented to what would otherwise be a deprivation of liberty …. However, the Court is of the view that the requirement to take account of the “type” and “manner of implementation” of the measure in question … enables it to have regard to the specific context and circumstances surrounding types of restriction other than the paradigm of confinement in a cell …. Indeed, the context in which action is taken is an important factor to be taken into account, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good.”

In his subsequent lecture entitled “Safeguarding and Dignity: Protecting Liberties – When is Safeguarding Abuse?” cited above, Munby LJ made these observations about the impact of the Grand Chamber decision in Austin:

“Where does this leave us? And where in particular does it leave the decisions in P and Q and Cheshire West? It is early days and you will understand that I must be careful what I say. A provisional and very tentative view might be that questions of reason, purpose, aim, motive and intention are wholly irrelevant to the question of whether there is a deprivation of liberty; that anything in the domestic authorities (and particular in Cheshire West) which suggests otherwise needs to be reconsidered; that in all other respects P and Q and Cheshire West stand as good law; that none of this affects the correctness of the actual decisions in the two cases; and that none of this is likely to have any decisive effect on the outcome in the general run of cases of the kind with which we are concerned.”

One anticipates that the impact of the Grand Chamber decision in Austin will be a further aspect of the forthcoming appeals to the Supreme Court. But how is a judge at first instance to approach the problem pending those appeals? In my judgment, the right course is to have regard to the purpose for a decision as part of the overall circumstances and context, but to focus on the concrete situation in determining whether the objective element is satisfied.

It is accepted that the second and third conditions for the circumstances to amount to a deprivation of liberty are satisfied in this case. The subjective element is satisfied because KK, whom I have found above to have capacity, does not give her consent and, as both the local authority and the court are engaged in determining where she should live, the state is responsible for her circumstances. The issue in this case is therefore whether those circumstances objectively amount to a deprivation of liberty.

On any view, staff at STCC exercise a large measure of control over KK’s care and movements. The fact that she is disabled means that she is completely dependent on others for her care and treatment. When one considers the “relevant comparator”, it is clear that anybody with KK’s disability would experience a significant physical restriction on the life that they are able to lead. In this case, however, there is no suggestion that the manner in which KK is looked after at STCC is significantly more restrictive than it would be were she to live at home in her bungalow. As in all nursing homes, KK’s needs have to be accommodated alongside the needs of other residents. No doubt she sometimes has to wait before her care needs are attended to. But the evidence suggests that staff are appropriately attentive to her as far as possible given the other demands on their time. KK has a number of grumbles about the food, and the level of noise in the nursing home. Overall, however, I do not detect any significant level of complaint by KK about the way in which she is treated at STCC.

There is, of course, no doubt that KK does object strongly to her residence at STCC. As Wilson LJ observed in P and Q (supra) her objections are a factor pointing towards deprivation of liberty. KK has a strong wish to live at home and the fact that this wish is frustrated undoubtedly causes her a degree of stress and distress. On at least one occasion, when she said that she did not wish to return home after a visit, her wishes were ignored. Clearly that was an example of her objections being overridden. Earlier difficult behaviour has subsided and there is now little evidence that her overruled objections lead to a significant degree of conflict. I have not been told of a pattern of regular or significant arguments between KK and the staff at the care home. On the contrary, the evidence suggests that KK does not repeatedly raise the topic of returning home in everyday conversations with staff. In my judgment, staff at STCC are dealing with KK’s wish to go home with tact and sensitivity.

On the other side of the scale, there are a number of factors pointing away from a finding of deprivation of liberty. There is no suggestion that restraint is ever used. Equally, there is no suggestion that sedation is used. KK’s door is not locked. With the assistance of members of staff, she is able to go elsewhere in the nursing home, in particular to the lounge, if she so chooses. She is consulted about her day to day care and treatment. There are no restrictions placed on her contacts with other people. Overall, the arrangements for her care could not, in my view, be described as one of “continuous control”. I do not, therefore, consider that KK has lost a significant level of personal autonomy as a result of her residence at the nursing home.

I turn finally to the question of the “relative normality” of KK’s life. She is in what some might describe as “an institution” rather than her own home, but on the spectrum identified by Wilson LJ P and Q, it seems to me to be far removed from type of institution associated with a deprivation of liberty. It is, in the words of McFarlane J (as he then was) in LLBC v TG, JG and KR [2007] EWHC 2640 [2009] 1 FLR 414 “an ordinary care home where only ordinary restrictions of liberty apply”. By all accounts, it is a well run nursing home which puts the needs of its residents first. I bear in mind that KK’s disability itself imposes a degree of restriction on her life. I do not consider that the circumstances of her placement at STCC significantly add to that restriction.

KK is now spending part of everyday at home at her bungalow. In my experience, this is unusual compared to most other residents of nursing homes. Considerable time and effort is devoted to enabling KK to experience a greater degree of freedom by returning home. Just as Wilson LJ in P and Q considered the fact that a child or young adult attends school or college or a day centre or other form of occupation to be a sign of normality which would indicate that the circumstances do not amount to a deprivation of liberty, so I find the fact that KK, with a degree of planning and notice, goes home on most days is a sign of normality indicating that her circumstances do not amount to a deprivation of liberty. In addition, she is also able to leave the nursing home on other occasions accompanied by her friend EB and her IMCA, JM.

I therefore conclude that KK’s circumstances do not amount to a breach of her rights under Article 5. In my judgment, she was not being deprived of her liberty before the introduction of the home visits in November 2011. Now that KK is able to go home on a daily basis, I find that the circumstances in this case fall well short of a deprivation of liberty.