W City Council v Mrs L

This hearing concerns a 93-year old lady with a diagnosis of severe dementia, Alzheimer’s disease. She lives in her own home, with care and safety arrangements set up for her between her adult daughters and the Local Authority. This simple scenario raises the following issues:

To resolve these issues, there are before me 2 lever arch files of evidence, reports, records and authorities. On 2 September 2014 District Judge Maughan, sitting in the Court of Protection in Birmingham, made an interim declaration that Mrs L lacks capacity to litigate and to make decisions as to her residence and as to arrangements for her care. At the same time, she transferred the above issues about deprivation of liberty to a High Court Judge. The Local Authority has been represented before me by Miss Hirst of Counsel, and Mrs L (through her adult daughter and litigation friend PC) by James Gatenby of Counsel. I am grateful to them both for their written and oral submissions, which I have found most helpful.

The parties’ positions, perhaps unusually, are as follows. The Local Authority says that the arrangements, which I will come to, amount to a deprivation of Mrs L’s liberty. It is said on behalf of Mrs L that they do not. The case has been heard on submissions, but I have read a quantity of evidence about Mrs L and about the practical arrangements for her care and safety set out in one of the lever arch files. None of that material is in dispute. Indeed, as well as competing Skeleton Arguments, counsel have volunteered an agreed statement of facts and issues.

As I have said, Mrs L is 93. She was widowed in 1976 and has lived since about that time, 39 years, in her current home, the upper floor flat in a 2-storey building. She has 4 adult daughters, 3 of whom live in England and one abroad. Her daughter PC is, as I have said, her litigation friend. If I may say so, the family seem to have done extraordinarily well in caring proactively for Mrs L, who was diagnosed with dementia in 2004. Since that time, her condition has deteriorated, and understandably is deteriorating. Her family have adapted her furniture and routines to take account of all her needs. She fell twice in 2013, the first time injuring her hip and requiring an operation. The second time in November 2013 she suffered no injury, 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. This event led to the involvement of the Local Authority.

At that time, the garden at Mrs L’s home was not enclosed. In the light of Mrs L’s having wandered off, the family arranged for a fence and two gates to be erected, and for the garden to be generally improved. The gates are side by side: one to use on foot, and the other a double gate to admit vehicles, presumably for the benefit of the young couple who live with their children in the ground floor flat. The pedestrian gate latch is of the kind often seen on bridleway gates, having a vertical metal lever on the gate, which is pulled away from the gate post to open the gate, and which springs back to engage with a clip on the gate post in order to re-close the gate. The double gates are secured by a metal throw-over loop, which holds the two central uprights together. The front door of Mrs L’s flat which leads into this garden area is locked with a Yale lock, which Mrs L can and does operate herself. This enables her to have access to her garden as and when she wishes it. All agree that she gets great pleasure from being able to go out and enjoy the garden.

The Local Authority have undertaken assessments of the safety of the above arrangements. They have concluded that whilst neither of the gate latches lock, they are quite stiff and heavy to operate. There was an occasion when Mrs L was observed to open the pedestrian gate when asked to do so. This was before a wedge was added to the gate by Mrs L’s downstairs neighbours (to stop their young children getting out) which has made the gate more difficult to open. The garden is felt by everyone to be sufficiently secure, although with an unavoidable risk that someone might leave the gate open. At night, there are door sensors which switch themselves on in the evening and off in the morning. They would be activated if Mrs L were to leave the property at night, although she has not in fact done so in the 6 months or so since they were installed. An alarm call would automatically be made to one of her daughters, who lives nearby. If that daughter were not available, the call would re-route go to the emergency services. This would enable Mrs L to be guided safely back home.

Mrs L is happy and contented where she lives. A care package is provided for her by the Local Authority’s specialist dementia carers, who visit her 3 times a day. She is orientated within the property, steady on her feet, motivated to engage in simple activities, and has a clear interest in her garden. There is a documented history of her strong sense of belonging in her current home, and of her fierce sense of independence. She displays an acceptable level of mobility. Her immediate environment can be seen to give her significant pleasure and stimulation. She is able to enjoy the company of her cat. All agree it would cause her distress to be moved to residential care. All agree too that the current arrangements of family and Social Services working together are in Mrs L’s best interests and work well.

The facts on which the Local Authority relies in particular for saying that the arrangements amount to a deprivation of Mrs L’s liberty are: (a) that the garden gate is kept shut, thereby preventing or deterring Mrs L from leaving the property unless escorted; (b) that the door sensors are activated at night, so that Mrs L could and would be escorted home if she left; and (c) that there might be circumstances in an emergency, say if the sensors failed to operate at night, when the front door of the flat might have to be locked on its mortice lock, which Mrs L cannot operate (as distinct from the Yale lock, which she can). She would then be confined to her flat. These arrangements are said by the Local Authority to be integral to its care plan for Mrs L, which is overseen by her social worker. The Local Authority thus asserts that it is responsible, as a public body, for a deprivation of Mrs L’s liberty.

Whilst not all of the many earlier authorities reconcile easily, the essential features of deprivation of liberty have now been established in Surrey County Council v P & Others: Cheshire West and Chester Council v P & Another [2014] AC 896 (“Cheshire West”). The fact that Cheshire West was heard by 7 Supreme Court Justices and that the decision was by a majority of 4 to 3 demonstrates the difficulty of the topic. Cases in the ECHR, including HL v United Kingdom [2004] 40 EHRR 761 and Stanev v Bulgaria [2012] 55 EHRR 696, now repeated in Cheshire West, establish that:

“…in order to determine whether there has been a deprivation of liberty, the starting point must be the specific [‘concrete’] situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance.”

It is clear in the light of ECHR jurisprudence such as Creanga v Romania [2012] 56 EHRR 361 and Austin v United Kingdom [2012] 55 EHRR 14 that the fact of there being a benevolent purpose behind the arrangements in question is not relevant to whether those arrangements create a deprivation of liberty. The majority in Cheshire West held that the test is not to compare the situation of the individual concerned with the situation of someone having the same or similar disabilities, because:

“…it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race” – per Lady Hale at paragraph 45.

Again, at paragraph 46 Lady Hale said this:

“…If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person.”

At paragraph 47 Lady Hale also rejected the “relative normality” approach, which held that there would be no deprivation of a person’s liberty if the imposed limitations and restrictions were no more than the inevitable corollary of his or her disabilities.

At paragraph 37 of Cheshire West, Lady Hale set out three components derived from Storck v Germany [2005] 43 EHRR 6 as representing the ‘essential character’ of a deprivation of liberty. These were and are:

“(a)

the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the State.”

Here, component (b) (a lack of valid consent) is clearly met, given that Mrs L is incapacitated from taking decisions about where she lives and the arrangements for her care.

In considering the component of ‘confinement’ in paragraph 10(a) above, and in seeking to identify whether there is any ‘acid test’ in this area, Lady Hale stated the key question as being: whether or not the individual was “…under complete supervision and control and not free to leave.” At paragraph 49, with reference to that concept, she said that:

“…A person might be under constant supervision and control but still be free to leave should he express the desire so to do. Conversely, it is possible to imagine 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. Indeed, that could be the explanation for the doubts expressed in Haidn v Germany (Application no 6587/04), 13 January 2011 [to which she had earlier referred at paragraph 39].”

A submission was accepted in Cheshire West that the following features of a situation under consideration are not relevant factors: (a) the person’s compliance or lack of objection; (b) the relative normality of the placement; (c) the reasonable (benevolent) purpose behind the placement.

One final consideration coming strongly through the authorities is that the question to be answered is highly fact-sensitive. This is essentially common-sense, because every case has different nuances. It is expressed perhaps particularly clearly in the dissenting judgment of Lord Clarke at paragraphs 105 and 106 of Cheshire West, where he spoke of the need “…to conduct a multi-factorial exercise which involves a balancing of a number of considerations”. This is to echoe Lord Bingham of Cornhill in R (Gillan) v The Commissioner of Police for the Metropolis [2006] 2 AC 307, who said:

“…The Strasbourg jurisprudence is closely focused on the facts of particular cases, and this makes it perilous to transpose the outcome of one case to another where the facts are different.”

The Local Authority argues that Mrs L is clearly unable to leave. She is either unable to do so by reason of the gates, or else deterred from doing so. In any event, it is submitted, a physical barrier it not actually necessary, as is demonstrated by case law. Mrs L would be brought back if she did leave the property. At night there are the sensors. As to the complete supervision requirement, Miss Hirst says that this is met. She, Mrs L, is monitored and supervised by the carers, who keep records. In effect, the supervision is complete, although it is accepted that there are periods of the day when Mrs L is left to her own devices.

Mrs L’s happiness and lack of objection to being where she is are, says Miss Hirst, irrelevant. As to this she cites from Lord Neuberger’s judgment at paragraph 68 of Cheshire West, where he said:

“…the notion that the absence of objection can justify what would otherwise amount to deprivation of liberty is contrary to principle. It is true, and indeed sensible, that a person's consent (provided that it is freely and properly given) may serve to defeat a contention that she has been deprived of her liberty. However, it involves turning that principle on its head to say that the absence of objection will justify what would otherwise be a deprivation of liberty – save in those rare circumstances where the absence of objection can be said to amount to consent, as in Mihailovs v Latvia, paras 138-139.”

So the fact that Mrs L is in her own home is ‘a red herring’, to use Miss Hirst’s expression. She urges me not to confuse deprivation of liberty with ‘best interests’. She says that to rely on Mrs L’s obvious contentment would be to do so and would be embarking on ‘a dangerous path’.

As to the question of imputing to the State any deprivation of liberty which the court finds exists, Miss Hirst’s submission is that such imputation is made out. She points out that through Local Authorities the State has statutory duties and duties of care in respect of incapacitated persons like Mrs L. It exercises those duties through social workers and carers, who in this case are working with the family; but if the family were not willing to work with those carers, then the Local Authority, on behalf of the State, would have duties to make other arrangements. So these arrangements should be imputed to the State. Miss Hirst urges me to be slow to say otherwise, because then Mrs L would lose the important protection of Article 5.

Last, Miss Hirst introduced very late, and only in reply to Mr Gatenby’s submissions, something which had not been flagged up before, namely the contents of paragraph 89 of Storck v Germany (above). That paragraph sets out three ways in which the State may have the responsibility for a deprivation of liberty imputed to it. I need not repeat them, because Miss Hirst did not press the point, given the impossibility of Mr Gatenby responding properly at that late stage. In any event, I find it a little difficult to see how heads (2) and (3) in paragraph 89 would be likely to create a responsibility in the State for a deprivation of liberty in the particular circumstances of this case, if such responsibility were not anyway imputable to the State under the first head in paragraph 89.

Mr Gatenby argues that this is simply not a deprivation of liberty situation. Here, Mrs L is living where it is clear that she positively and actively wants to live and where, when capacitated, she had always wanted to live. He refers me to the report of Andrea Brigg dated 27 August 2014, which says:

“…Historically Mrs L has always wished to remain in her own home. Currently there is nothing to indicate that this has changed… She is an assertive, independent and well-spoken woman, whose abilities have been undermined by her illness… Since stopping driving over 10 years ago, she has lived her life within the perimeter of her home. She has busied herself around the flat and, as risks have been identified, they have been minimised…”

For completeness, the report goes on to say, and I read this with a strong health warning about not confusing or tangling up best interests with deprivation of liberty:

“I consider Mrs L’s needs, health and well-being would be best met in her own home… She has demonstrated she can meaningfully occupy herself if there are no distractions… She would find the setting of a residential home bewildering and frightening…[which] may result in increased agitation, distress and eventually despair.”

Mr Gatenby submits that Mrs L’s positive and very long-standing wish to live in her own home distinguishes this case from the jurisprudence which led to the decision in Cheshire West. He submits that Mrs L is not ‘obliged’ to live in her own home, using the word which appears in paragraph 46 of Lady Hale’s judgment. He says that the language of ‘obligation’ is inapplicable to the factual scenario of this case. There is in reality no compulsion or constraint going on, as appears within the language of many if not most of the authorities, because Mrs L is so clearly where she wants to be. Nor, he submits, is this any kind of ‘placement’. It is simply a case of an old lady who wishes to remain in her own home, and for whom the minimum restrictions have been put in place to keep her safe. He urges me to adopt a common-sense and practical approach.

As regards to the imputation to the State of any such deprivation as may be found to exist, Mr Gatenby disagrees that this is established. His submission is that the family take the lead and have always been the driving force in the relationship between themselves and the Local Authority. He points out that the fencing was put up around Mrs L’s property and paid for by the family; and that that the sensors were installed and paid for by the family. He points to a multitude of little safety strategies which the family have put in place and of which I have read in the bundle. So he maintains that on the facts the family are effectively the prime movers. At its lowest, it is clear that the family are acting and planning hand-in-hand with the social workers and carers. Therefore Mr Gatenby submits that there is on the facts an absence of a controlling State hand in the dynamics of the relevant relationship, which element he says is necessary (or should be necessary) to make the arrangements capable of being properly imputed to the State. There is not a great deal of evidence about the balance of initiative and authority as between the family and the Local Authority, but I have reached a conclusion about it, which I will state below.

I need to mention finally Mr Gatenby’s answer to Miss Hirst’s fear that, if the arrangements were not imputed to the State, then Mrs L would lose the protection of Article 5. He says that the duties of the Local Authority to be concerned for Mrs L’s welfare would remain in any event and that, in conjunction with a pro-active and caring family, all necessary protection is in fact provided to her in that way.

It is clear from Cheshire West that there may be situations where a person is not free to leave a place, but is not under such continuous supervision and control as to mean that the arrangements put in place constitute a deprivation of liberty (per Lady Hale, cited at paragraph 11 above). It is well established that the difference between a deprivation of liberty and a restriction of liberty is one of degree or intensity, not one of nature or substance. The bulk of the jurisprudence can be seen to concern individuals in State-run social care institutions or hospitals, and not individuals in their own homes. This per se cannot of course be decisive in a given case for saying that a deprivation of liberty does not exist (for it is easy to envisage arrangements in a person’s own home which would constitute just such a deprivation of liberty); but, in my judgment, the ‘own home’ consideration must be a relevant factor in the mix.

There are also references in the authorities suggesting that it has been relevant that the individual concerned, or someone acting on his behalf, was the complainant; in other words, was oppositional concerning the arrangements. For example at paragraph 71 of Cheshire West Lord Neuberger said:

“…It is a fair point that the Strasbourg court has never had to consider a case where a person was confined to what may be described as an ordinary home. However, I cannot see any good reason why the fact that a person is confined to a domestic home, as opposed to a hospital or other institution, should prevent her from contending that she has been deprived of her liberty.” [Emphasis added]

Again, in paragraph 41 of Cheshire West, Lady Hale spoke about the complainant being under the complete supervision and control of thestaff and not free to leave [emphasis added]. Such considerations do not apply here, although they are clearly not pre-requisite to a deprivation of liberty: see paragraph 12(a) above. But it is overwhelmingly clear that Mrs L is where she always wanted to be when she was capacitous: and where not only has she not shown or expressed any dissatisfaction with the arrangements, but has demonstrated positively a continuing satisfaction with being in her own home. Further, her home is clearly not a ‘placement’ in the sense of a person being taken or taking herself to some institution or hospital.

The fact of Mrs L referring to, and demonstrating by her demeanour, this continuing contentment in her home is not in issue. It is right that she is of course not capacitated. Otherwise, this case would not be happening. But I do find that she is capable of expressing her wishes and feelings, as is referred to in the documents and shown in such things as for example her choice of clothes, the choice of what she does around the property, and in her going in and out of the garden at will. Although I accept the general need for the caution which Miss Hirst urges me to exercise, this consideration must be relevant in the evaluation of whether Mrs L is being ‘deprived’ of her ‘liberty’ within Article 5.

This case is thus different from one involving institutional accommodation with arrangements designed to confine the person for his or her safety, and where that person, or someone on his or her behalf, is challenging the need for such confinement. At paragraph 38 of Cheshire West Lady Hale spoke about ‘the presence or absence of coercion’ being a relevant consideration. As I have said, the range of criteria to be taken into account includes the type, duration, effects and manner of implementation of the arrangements put in place. The fact that those criteria are prefaced by the words ‘such as’ demonstrates that they are not intended to be exhaustive. It is a question of an overall review of all the particular circumstances of the case.

I observe too that Article 5 refers to everyone having a right to ‘liberty and security of person’ [emphasis added]. Mrs L’s ‘security’ is being achieved by the arrangements put into 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 carer’s 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.

This is a finely balanced case; but on the totality of everything that I have read in the files, I have come to the conclusion and find that whilst the arrangements (clearly) constitute restrictions on Mrs L’s liberty, they do not quite cross the line to being a deprivation of it. If I were wrong about that, and if there is a deprivation of Mrs L’s liberty, is it to be imputed to the State? On the facts, I find not. This is a shared arrangement set up by agreement with a caring and pro-active family: and the responsibility of the State is, it seems to me, diluted by the strong role which the family has played and continues to play. I do not consider in such circumstances that the mischief of State interference at which Article 5 was and is directed, sufficiently exists.

In these circumstances, my decision is simply that there is no deprivation of Mrs L’s liberty. This is not per se because Mrs L is in her own home; nor because she wishes to be there. Those features alone would not necessarily stop particular arrangements amounting to a deprivation of liberty. Rather it is a finely balanced decision taken on all the facts of the particular case. The question of the court’s authorising the arrangements concerned does not in the circumstances arise, although I would have authorised them if it did. The question of Mrs L’s up to date best interests is better considered back in Birmingham by the District Judge, and I anticipate that it should be capable of being dealt with by consent.