The High Court re-visits what amounts to a deprivation of liberty

Mr Justice Bodey has given a judgement on the much debated topic of what constitutes a deprivation of liberty in cases of individuals who lack capacity to make decisions about where they live and the care they should receive there.

The case of Mrs L was one of the several Court of Protection cases joined together by Sir James Munby in Re X and others (Deprivation of Liberty), with a remit to consider the many procedural questions thrown up by the decision of the Supreme Court in the Cheshire West case (about how to deal with the consequential inevitable rise in applications to the Court of Protection to authorise deprivations of liberty).

Mrs L is an elderly lady living in her own home, as she had for about 40 years. She is diagnosed with dementia and having been found wandering in the street, her family locked her door and asked social services to provide some care, (which amounted to a carer coming in three times a day to ensure Mrs L was well, and was eating and drinking sufficiently). Her daughters visited her regularly. The family subsequently secured Mrs L’s garden with a fence and gate, (which was not locked). They put a door sensor on her front door alerting Mrs L’s daughter if she tried to exit the property during the night, but leaving the door on a Yale lock which Mrs L could operate. Mrs L was free to do as wished during the day, including leave the house to go into her garden.

Mrs L had chosen to remain in her home at a time when she had capacity to make that decision. She was noted to be happy there, and was likely to have become very upset if she had to move to live elsewhere. She was said to be fiercely independent. The family worked with social services to ensure Mrs L was safe and well, and both parties were agreed it was in her best interests to remain at home.

The issue for the Judge was whether Mrs L was objectively deprived of her liberty, and if so, whether that deprivation was the responsibility of the state. He found neither. Instead the Judge decided that as a matter of fact that Mrs L’s circumstances objectively fell short of deprivation. In addition, the Judge determined that the involvement of the local authority was insufficient to render Mrs L’s living arrangements “under state control”, due to the close involvement and role played by Mrs L’s family.

A judgement will be published shortly. What impact the decision in this novel case will have on the population apparently affected by the Cheshire West judgement is to be seen.

Kate Jackson instructed by Mrs L’s litigation friend, CP.

If you or a family member are affected by decisions concerning deprivation of liberty please contact Kate Jackson on 0121 214 3585 or kate.jackson@anthonycollins.com

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