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A Deprivation of Liberty – Or Not?

A recent Court of Protection case illustrates how the issue of deprivation of liberty continues to vex those of us working in mental capacity law, following last year’s landmark Supreme Court judgement in the Cheshire West case.

In the recent case of Bournemouth Borough Council v PS & DS [2015], the judge in the Court of Protection – not for the first time – considered whether Ben, a young man on the autistic spectrum with mild learning disabilities and in need of continuous care, was being deprived of his liberty with reference to Article 5 of the European Convention on Human Rights.

As Ben lacked mental capacity to make decisions for himself about his residence and care needs, the court was asked to determine whether he was being deprived of his liberty and if so, whether it was in his best interests to be so deprived, under the 2005 Mental Capacity Act.

Perhaps a little surprisingly, given the Supreme Court’s clear judgement, the judge did not think Ben was being deprived of his liberty because he did not see that he satisfied the Supreme Court’s “acid test” for deprivation of liberty.

The Acid Test

Delivering the leading judgement in the Cheshire West case, Lady Hale said that the acid test was whether a person is “under continuous supervision and control and is not free to leave.”

It was clear that, in the Bournemouth case, Ben was constantly observed and supervised and assisted with his personal care. If he left his home, staff would monitor him in the community.

He never sought to leave his home.

Mr Justice Mostyn, the judge in the Bournemouth case, whilst recognising that Article 5 was engaged, did not believe that the acid test was satisfied – essentially because he did not believe that Ben was being detained by the state and that he had a great deal of privacy and was free to leave.

He said, “The deprivation of liberty line would only be crossed if and when the police exercised powers under the Mental Health Act.” Up to that point, the judge said, Ben is a free man.

Deprivation of Liberty and Human Rights

Depriving an incapacitated person of their liberty can clearly be driven by a wish to meet their care needs and act in their best interests.

This can offer people who lack capacity as full and independent a life as possible whilst dealing with any risks of harm at the same time, thus placing precautionary, supervisory or active limitations upon them. Such was the case with Ben.

Carefully crafted care arrangements, driven by best interests, must still comply with the Mental Capacity Act and human rights, those protected in Article 5 and the right to respect for privacy and family life set out in Article 8.

As Lady Hale also said in the Cheshire West case, “The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a gilded cage.”

Mr Justice Mostyn’s attempts to address the issue of deprivation of liberty in the Bournemouth case in practical terms – or as he “plainly saw it” – are understandable but unless the Supreme Court addresses the question of deprivation of liberty again, or the law changes, Cheshire West continues to define what all of us working in mental capacity law must tackle.

Failure to do so, as the judge in the Bournemouth case rightly points out, could cause unnecessary difficulties and give rise to criticisms in relation to the human rights of incapacitated people who are in any form deprived of their liberty.

Richard Copson is a Principal Court of Protection Lawyer at Slater and Gordon UK and specialises in disability rights, mental capacity law and other human rights issues.

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