The issue to be decided by the Court of Protection in this case (W City Council v Mrs L [2015] EWCOP 20) was whether Mrs L, a 93 year old lady with a diagnosis of severe dementia, was being deprived of her liberty in her own home.
Her care and safety arrangements were set up for her between her adult daughters and the Local Authority. Her family had been very proactive in her care, adapting her furniture and routines to take account of her needs. This included erecting a fence and two gates to enclose the garden to her flat. Her front door was locked with a yale lock, which Mrs L could operate so she could access the garden when she wished. Mrs L was therefore able to access the garden to her property, however, the gates were said to be sufficiently secure to prevent her from leaving the grounds of the property.
At night, door sensors were switched on, which would be triggered if she were to leave the property– an alarm would be sounded to one of her daughters nearby (and if her daughter was unavailable, the emergency services would be alerted).
A care package was provided by the Local Authority, which consisted of three visits per day by specialist dementia carers.
Unusually in this case, it was the Local Authority who contended that the care arrangements amounted to a deprivation of Mrs L’s liberty, and the daughter who was acting as litigation friend, who contended that they did not.
To recap, the essential features of a deprivation of liberty were established in the case of Surrey County Council v P & Others: Cheshire West and Chester Council v P & Another [2014] AC 896, being that for a deprivation of liberty to exist, the individual must be under ‘continuous supervision and control’, must not be ‘free to leave’ and their care must be ‘imputable to the state.’
The Local Authority relied on the fact that a) the garden gate is kept shut, preventing her from leaving the property unless escorted; b) the door sensors are activated at night meaning that she would be escorted back home if she left and c) in an emergency (e.g. if the sensors failed to operate), the front door of the flat may then have to be locked on a mortice lock, which Mrs L could not operate. She would then be confined to the flat. These arrangements were said by the Local Authority to be integral to her care plan and as such, it is responsible, as a public body, for a deprivation of her liberty.
However, it was decided by the Court that Mrs L’s circumstances did not constitute a deprivation of her liberty or, if they did, it was not imputable to the state. The Court’s reasoning for coming to this conclusion was that:
“22. It is clear from Cheshire West that there may be situations where a person is not free to leave a place, but is under such continuous supervision and control as to mean that the arrangements put in place constitute a deprivation of liberty. 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…
26. Such restrictions are not continuous or complete. Mrs L has ample time to spend as she wishes, and the carers visits are the minimum necessary for her safety and wellbeing, being largely concerned to ensure that she is eating, taking liquids and coping generally in other respects…
27. 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… the responsibility of the State is, it seems to me, diluted by the strong role which the family has played and continues to play.”
This case appears to provide an example of when someone is ‘not free to leave’ their property, but is not under such ‘continuous supervision and control’ so as to reach the threshold of being a deprivation of liberty, and three daily visits by Local Authority carers were not seen as sufficient for the care arrangements to be ‘imputable to the state’.
It is not known whether this decision is to be appealed, however, it is hard to see what grounds would form an appeal. This was a very finely balanced case, as noted by the Court, and could have been decided either way. The plot thickens…
Our specialist Court of Protection team has expertise and knowledge in this complex area. If you have concerns that a family member or loved one is being deprived of their liberty, then we can provide specialist advice, guidance and representation through this difficult process.
Call us on 01616 966 229 or complete our online enquiry form. We offer services across the UK and have offices in the North West and in London. We offer legal aid funding subject to eligibility.
By Sophie Maloney, human rights law team
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