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Deprivation of liberty - a change in the wind?

View profile for Philip Jones
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Court of Protection decides that man with irreversible stoma has the right to choose to die

Re HC [2024] EWCOP 24 arguably represents a further development in the judicial thinking regarding deprivations of liberty that is moving away from the decision in Cheshire West.

It concerned the residence and care arrangements for a 27-year-old woman, HC, who had several admissions to hospital for treatment for her anorexia (including under s3 Mental Health Act 1983). An urgent determination had been sought by the relevant public authorities from the Court of Protection (‘the court’) on whether it was in HC’s best interests to be moved to a new placement immediately.

Ms Butler-Cole KC, sitting as a tier-3 judge of the court, considered there was reason to believe HC lacked capacity to decide where to live and receive care. In terms of best interests, the options before the court were a forced move to a new placement, or a temporary return to HC’s father’s home if HC was not willing to move.

The proposed move to a new placement included the use of physical restraint, (if necessary); Ms Butler-Cole concluded that, even as a last resort, use of such restraint was not proportionate. The Impact upon HC’s mental health and self-harming behaviour were also considered reasonable concerns not to order a forced move, along with the prospect of her not settling into the new placement if she felt that she had been forced to go there. She commented, “HC already suffers from anxiety and it seems extremely likely that the use of physical restraint would be a further source of trauma for her”.

Requiring the provision of further evidence, Ms Butler-Cole identified she would consent on HC’s behalf to a move to a new placement if she was willing to move there. If not, she would consent for her to live with her father.

The issue of deprivation of liberty arose in respect of the potential new placement. Interestingly, Ms Butler-Cole considered it inconsistent to determine it was in HC’s best interests to move to a new placement only if HC should agree to move there if, once HC did move there, HC changed her mind and was prevented from leaving by being deprived of her liberty (a course of action that had been advanced in submissions in the case).

However, since it was accepted such a proposed move would amount to a deprivation of liberty, Ms Butler-Cole found that substitute consent would be required while HC resided there willingly. Therefore, HC’s proposed deprivation of liberty at a new placement was authorised only insofar as HC would be willing to live there. Should HC change her mind, Ms Butler-Cole held that the case must be returned to court for further directions.

This conclusion prompted Alex Ruck Keene KC (Hon), via his website Mental Capacity Law and Policy, to ask two important questions, (which provide much food for thought), about how the law may develop in this area, namely:

  1. ‘…what is the point of giving substitute consent to something to which [P] (albeit incapacitously) is agreeing to willingly?’
  2. ‘…[if P] is willingly agreeing to it herself, why should it be viewed as deprivation of liberty – and should the law not listen to her?

If you require any advice or assistance with issues relating to capacity, best interests decisions or deprivation of liberty, please do not hesitate to contact our team of specialist Court of Protection lawyers on 01616 966 229.