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Deprivation of liberty, family members and what s4B does (and doesn’t) say

A judge recently considered very strong objections levelled by a family member to the idea that they were depriving their adult child of their liberty.  She also helpfully clarified the current (limited) scope of s.4B MCA 2005, writes Alex Ruck Keene.

In Re AEL [2021] EWCOP 9 (SJ Hilder) AEL was a 31-year-old woman with diagnosis of Trisomy 4p syndrome, a rare chromosomal condition leading to a number of physical and mental disabilities. She had severe learning disability, significant visual impairment and profound deafness. She suffered from asthma, eczema and severe allergies. She was non-verbal and could only walk short distances. She did not have a regular sleep pattern. At times, she behaved in a way which caused herself injury. From a young age AEL she had attended a specialist school, latterly living in a residential unit under the school’s management. When that placement closed in July 2015, after a few months in an alternative placement, she returned to live in the family home with her parents. Since 2016 a care package had been funded by direct payments.

The local authority, LB Hillingdon, assessed AEL as needing 24-hour care and supervision, with 2:1 support for some activities in the community. In addition to her parents, two private carers were consistently involved in AEL’s care for some time. She did not require sedation or restraint, and no assistive technology is used in her care arrangements. If the current level of care was not provided, the local authority considered that AEL would be a danger to herself and others because she had no concept of road safety, was unable to alert others to her needs, and was unable to manage her own nourishment or hygiene.

In light of the arrangements for AEL, to which it appeared to be clear that she could not consent, LB Hillingdon, had applied for a so-called community DoL order; at an attended hearing in 2017, the parties agreed, and the court declared that “in so far as AEL’s care arrangements amounted to a deprivation of her liberty,” such was authorised by the court.” This was a compromise to avoid unnecessary litigation but also ensure appropriate oversight of AEL’s circumstances.  Unfortunately, that compromise led to extended disagreement at each review hearing as to whether or not the arrangements did, in fact, amount to a deprivation of her liberty. SJ Hilder identified that it was “everyone’s ardent wish that further such proceedings can be avoided. The purpose of this judgment is therefore to determine the issue, for as long as AEL’s current care arrangements subsist” (paragraph 3).

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The hearing took place in the absence of AEL’s father (the court being satisfied that he had chosen not to participate), but on the basis of a very clear understanding as to his position, namely that it was “obvious to him that AEL ‘is not the subject of ‘continuous control’… […], given that his approach to his daughter’s care is founded on “the principle” that ‘AEL decides what she wants to do and when she wants to do it excepting if her safety could be compromised’ (paragraph 21). JSL, who represented himself, considered that the exception to giving effect to AEL’s wishes if her safety could be compromised was “allowed by the Mental Capacity Act 2005 and as such not considered a deprivation of liberty,” Senior Judge Hilder noting that this appeared to be based upon his understanding of s.4B MCA 2005.

Seeking to persuade SJ Hilder that his daughter’s circumstances did not amount to a deprivation of liberty, JSL relied upon three cases. SJ Hilder identified that “there is limited usefulness in comparing facts of reported cases, since whether or not a deprivation of liberty exists is to be determined on the facts of each specific case and not by analogy. In any event, in my judgment, the three authorities on which JSL relies in truth do not assist him” (paragraph 42).  The three authorities were:

1. W City Council v. L [2015] EWCOP 20:

Mrs. L continued to live in the home where she had lived before she lost capacity. Bodey J identified (at paragraph 8) the facts relied on for considering that her care arrangements amounted to a deprivation of Mrs L’s liberty as that:

(a) the garden gate is kept shut, thereby preventing or deterring her from leaving the property unless escorted;

(b) door sensors are activated at night, so that Mrs L could and would be escorted home if she left; and

(c) that there might be circumstances in an emergency, say if the sensors failed to operate at night, when the front door of the flat might have to be locked on its mortice lock, which Mrs L cannot operate (as distinct from the Yale lock, which she can). She would then be confined to her flat;

and noted (at paragraph 14) acceptance even by the applicant that there are periods of the day when Mrs L was left to her own devices. Carers’ visits three times a day were described (at paragraph 26) as “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.” Bodey J concluded that the restrictions in place “are not continuous or complete. Mrs L has ample time to spend as she wishes.”

Mrs. L’s arrangements are markedly different to AEL’s. There is no factual basis for contending that the same conclusions should also be drawn in respect of AEL.

2. Bournemouth BC v PS & DS[2015] EWCOP 39:

Mostyn J identified (at paragraph 14) that the subject of the proceedings, Ben, had some privacy, including periods of free unsupervised access to all parts of the bungalow where he lived and the garden; and (at paragraph 33) that “he is free to leave. Were he to do so his carers would seek to persuade him to return but such persuasion would not cross the line into coercion.”

At paragraph 16 there is reference to a social worker acknowledging that “[i]f Ben was unescorted in the community it is highly likely he would walk out into the road…” and so he is escorted and “staff would intervene should he put himself at risk of significant harm.” In the following paragraph Mostyn J noted that the social worker “accepted under cross-examination that such an act of humanity could not amount to a deprivation of liberty, and I emphatically agree.” It may be that JSL is particularly focussed on this vignette.

However, care arrangements must be considered as a whole package. The “act of humanity” vignette in the context of the wider arrangements for Ben is clearly different to “the principle” which JSL says underlies AEL’s care. The supervision and control of the activities which AEL is permitted to choose is more generalised than a response to immediate danger, as is seen clearly in JSL’s account of the difficulties which the covid pandemic have brought for AEL. Again, there is no factual basis for contending that the Bournemouth BC v PS & DS conclusions should also be drawn in respect of AEL.

3. Rochdale MBC v. KW[2014] EWCOP 45:

The third case relied upon by JSL was a first instance decision of Mostyn J which was overturned by the Court of Appeal. The appeal was allowed by consent, with a statement of reasons attached to the approved order recording that

‘The reason for inviting the Court of Appeal to allow the appeal by consent is that the learned judge erred in law in holding that there was not a deprivation of liberty. He was bound by the decision of the Supreme Court in P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and others [2014] UKSC 19, [2014] AC 986 (‘Cheshire West’) to the effect that a person is deprived of their liberty in circumstances in which they are placed by the State in a limited place from which they are not free to leave. It is accepted by both parties on facts which are agreed that this was the position in the case of KW.’

In a subsequent judgment reported at [2015] EWCA Civ 1054, following Mostyn J’s second consideration of the matter, the Court of Appeal confirmed (at paragraph 31) that the Supreme Court had settled the question of what amounts to deprivation of liberty and accordingly Mostyn J’s analysis “was, and could be, of no legal effect. It was irrelevant.”

SJ Hilder found that it was clear that:

46. The law is now settled, and the facts of AEL’s care arrangements are not in dispute. Viewed objectively, the key aspects of AEL’s experience are that:

a. she requires, and is given, 24-hour care and supervision – she is never “left to her own devices” but is accompanied by carers at all times; and

b. although she is regularly given the opportunity to make choices, and carers generally strive to facilitate realisation of her choices, there is an acknowledged limit to AEL’s ability to do what she wants – ultimately, all the activities she undertakes are risk assessed by AEL’s parents and/or carers […] and “the principle” of such assessment is that they may decide not to allow her to do anything which they consider could compromise her safety.

This meant, SJ Hilder, found that:

47. In my judgment, these two aspects of AEL’s living arrangements clearly amount to “continuous supervision and control.” Even if carers are available and willing to take AEL to McDonald’s at whatever hour she wishes, she is not “free to leave” their care. The reality of her disabilities is that AEL’s safety is permanently at risk unless she has support. Therefore, she has 24-hour support and she is thereby under continuous control in the sense that her freedom may be interfered with at any moment. The intention may be benevolent; the arrangements may indeed ensure that she has a much happier, healthier and longer life than she would otherwise have; but “a gilded cage is still a cage.” The ‘acid test’ of deprivation of liberty is made out.”

SJ Hilder found that JSL was wrong in his understanding of the impact of s.4B MCA 2005.  At paragraph 34, she had made clear that:

It is important to understand that that sections 4A and B do not provide a general, unrestricted authority to deprive a person of their liberty if that is considered necessary to maintain their safety. The three “conditions” must be fulfilled before it applies. So, section 4A sets out the statutory basis of authorisation to deprive someone of their liberty; and section 4B permits deprivation of liberty wholly or partly consisting of limited acts for limited purposes whilst a decision is sought from the court. (emphasis in the original)

This meant, she reiterated at paragraph 48, that s.4B could not be interpreted as a stand-alone provision as “unrestricted authority to deprive a person of freedom of action whenever a third party considers her safety is at risk.”

SJ Hilder looked at AEL’s circumstances in the round, with regard to the “underlying principle” of Cheshire West – what it means to be deprived of liberty must be the same for everyone.  She noted that, “[a]lthough I have not asked him, rhetorically I invite JSL to consider how he would categorise AEL’s living arrangements and “the principle” if they were applied to him. I strongly suspect that he, and ordinary members of the public, would consider such arrangements to deprive them of their liberty) (paragraph 49). Finally, and as Sir Mark Hedley had done in A Local Authority v AB, SJ Hilder had:

50. […] regard to the “policy” of Cheshire West. However benevolent AEL’s carers, however much all relevant parties consider that the current arrangements for her care are in her best interests, AEL’s disabilities make her vulnerable. If there is any room for doubt as to whether or not AEL’s living arrangements are a deprivation of her liberty (which in my judgment there is not), as Baroness Hale identified, we should err on the side of caution. AEL should have the benefit of a periodic, independent check that arrangements continue to be in her best interests. Such requirement is not to stigmatise her or her loving family, but quite the opposite – to ensure recognition of her equal dignity and status as a human being. (emphasis in the original)

Comment

On a procedural point, it is perhaps of some note that it is arguable that the court should not have made an order on the “in so far” basis in 2017 – the Court of Appeal in Re KW had had doubts about the wording in the then-template order (“to the extent that the restrictions in place pursuant to the Care Plan amount to a deprivation of [X’s] liberty, such deprivation is hereby authorised”), because it left ambiguous what the court was holding.  It said that it would be “undoubtedly preferable” to use the wording that “P is deprived of liberty as a result of arrangements in the Care Plan and these are lawful” (paragraph 18). It is clear, however, that the court was seeking to avoid unnecessary disagreements by the compromise wording used, even if, sadly, as so often is the case, it is clear in retrospect that grasping the nettle at the outset would have caused less pain all round.

More substantively this case, as with AB, is a clear indication that the courts (at least in those decisions which are reported) are loyally following the Supreme Court’s policy in Cheshire West. This decision is of particular interest because SJ Hilder took on and carefully distinguished three cases sometimes relied upon to narrow the scope of that decision, and made clear that, in truth, they do not provide a sound basis to do so.

One real irony of this judgment, given the intense focus upon AEL’s circumstances, is that the approach apparently mandated by the Supreme Court means that there is no attention paid to AEL’s wishes and feelings in determining whether or not she is deprived of her liberty. Those wishes and feelings were not ignored by the court, given that there was clear agreement that the arrangements for her were in her best interests. We might wonder, though, whether recognition of AEL’s dignity and status as a human being might not lead us to allow those wishes and feelings to decide whether her will is being overborne (which is, at the end of the day, the conception of deprivation of liberty which the European Court of Human Rights appears to have).

Finally, the discussion of s.4B serves as a useful reminder of a health warning that has to be given about legislation.gov.uk. This otherwise wonderful website has the text of the MCA 2005 including those amendments introduced by the Mental Capacity (Amendment) Act 2019.  What is – annoyingly – unclear from the version of the MCA on the legislation.gov.uk website is that these amendments are not yet in force. When those amendments come into force in 2022, s.4B will provide a standalone power to deprive someone of their liberty in an emergency (to provide life-saving treatment or prevent a serious deterioration in their condition). At present, though, s.4B is only relevant (in this context) where an application has been made to the Court of Protection.

Alex Ruck Keene is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.

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