Our Health and Social Care team has been representing Care England to date in its application and will be preparing the case for the next month’s hearing on 20-21 March.
This was one of the cases originally joined together by the President Sir James Munby, in the matter of Re X and others (Deprivation of Liberty) which has led to changes to the Court of Protection Rules, and the recent Law Society guidance on deprivations of liberty (which briefly refers to this case).
Having regard to the test in Cheshire West, Mr Justice Bodey concluded that Mrs L was living “where she always wanted to be” and that whilst her living arrangements caused restrictions to be placed on her liberty, they did not amount to a deprivation. The restrictions were not “continuous or complete”. The judge emphasised that being in one’s own home must be a relevant consideration when weighing up all the factors that may contribute to someone being deprived of their liberty, as opposed to the many individuals lacking capacity who had been “placed” in their residence.
The Judge also made reference to the point made by Mr Justice Mostyn in Rochdale MBC v KW, that Article 5 entitles individuals to liberty and security of the person. Mrs L’s security was being ensured by the restrictions placed upon her.
Finally the Judge addressed whether the arrangements for Mrs L’s care were attributable to the state. Whilst the Judge did not have to consider this element (as he had already determined that the arrangements were not a deprivation of liberty), he found in any event that the arrangements were not attributable to the state. He found that responsibility for Mrs L’s living arrangements were shared between the family and the local authority, thus diluting the role the local authority plays in those care arrangements.
This judgement may generate a mixed response. On the one hand, this common sense approach seems to be just what resource-poor public bodies need as the result may be that many of the predicted thousands of extra deprivation of liberty authorisations will be considered unnecessary. However, it will come as no consolation to those front-line professionals seized with identifying people who are deprived of their liberty for whom Cheshire West may have brought some degree of clarity. The Judge was at pains to point out however that these cases continue to necessarily be fact specific and this was a “finely balanced” case. Whilst Mrs L was found not to be deprived of her liberty in her own home, there will undoubtedly still be many incapacitated individuals whose living arrangements do pass the test in Cheshire West and will require authorisation from the Court of Protection in order to be lawful.
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