Liberty and the home

David Lawson considers recent judgments on how protection against a deprivation of liberty can interfere with the right to live at home.

On 11 June 2015 the Court of Protection returned to the intriguing question of how the deprivation of liberty safeguards apply to someone receiving support in a standard domestic environment. That person might well regard the assessments and reviews of Schedule A1 MCA or of the Court of Protection as unnecessary and intrusive. There is a risk of a system intended to protect against arbitrary state interference in effect requiring state approval of domestic life.

Although this issue arises most often where there is a home placement the relevant distinction is not home life as compared to institutional life – after all MIG from the Cheshire West case lived with a foster carer. The potentially relevant distinction for the Courts to consider is whether a private arrangement can be imputed to the state so as to engage article 5.

One approach to this question was shown in the judgement of Mostyn J in the Rochdale case (2014 EWCOP 45), namely that:

“where a person, often elderly, who is both physically and mentally disabled to a severe extent, is being looked after in her own home, and where the arrangements happen to be made, and paid for, by a local authority, rather than by the person's own family … Article 5 is simply not engaged”.

However, much to the Judge’s annoyance, this ruling was set aside by consent on appeal, although the main difficulty may have arisen from other points in the judgment ([2015] EWCOP 13).

Mostyn J explained this decision further in Tower Hamlets v. T [2014] EWCOP 53. He considered it “unreal” to characterise as state detention measures taken “to ameliorate and compensate for” the disabilities of people requiring a high level of state support. It was this aspect of the decision which some commentators found troubling, seeming to imply that article 5 might apply differently to different people, notwithstanding Cheshire West.

On 11 June Mostyn J considered another home placement in Bournemouth Borough Council v. PS and DS [2015] EWCOP 39. The case concerns Ben, a 28-year-old man with ASD and mild learning disabilities. He also has severely challenging and dangerous behaviour and a significantly reduced ability to care for himself. Ben lives on his own in a two-bedroom bungalow with a garden. Staff are on-site 24 hours per day providing him with minimal personal care and support. There are no locks on the doors, but sensors would alert a staff member were Ben to leave, albeit he has not tried to do so. If he did leave and all attempts to persuade him to return failed the police would be asked to exercise powers under section 136 MHA 1983 to remove Ben to a place of safety. Mostyn J explained that this was not a deprivation of liberty because:

“First, he is not under continuous supervision. He is afforded appreciable privacy. Second, 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. The deprivation of liberty line would only be crossed if and when the police exercised powers under the Mental Health Act”.

While this reasoning could apply in other environments it offers a second stand to the argument that home placements do not lead to deprivations of liberty – the greater degree of privacy that may be possible in a home compared to many care arrangements in institutions.

A case which faced the question of home placements head on is W City Council v. Mrs L [2015] EWCOP 20, Bodey J.  Mrs L is 93 years old and has Alzheimer’s disease. She lives in her own home with care arrangements agreed by her adult daughters and the local authority. Is the state responsible for any deprivation of liberty?

In November 2013, Mrs L was found wandering in the local town and was returned home by the police. This led to the involvement of the local authority. The gates to her garden were changed so that it would be very difficult for Mrs L to operate them and night-time sensors were fitted to the doors so that the emergency services could be called were she to leave the house at night. Carers from the local authority visit her three times a day. It was agreed that she had a fierce sense of independence and took significant pleasure and stimulation from her house and garden.

Bodey J concluded that this was not a deprivation of liberty. All factors had to be considered together. There were restrictions on Mrs L’s liberty, but they were not a deprivation because they were necessary for her “security of person”, she could exercise considerable freedom of choice and the arrangements reflected her wishes and feelings. Finally, those arrangements were not imputable to the state:

“This is a shared arrangement set up by agreement with a caring and pro-active family: and the responsibility of the State is, it seems to me, diluted by the strong role which the family has played and continues to play. I do not consider in such circumstances that the mischief of State interference at which Article 5 was and is directed, sufficiently exists”.

The recent Law Society publication “Identifying a deprivation of liberty: a practical guide” explains that there are two ways in which a deprivation of liberty can be imputable to the state: by direct involvement in the individual’s detention or by violating the state’s positive obligation to protect citizens against deprivations of liberty carried out by private persons (para 2.21). In Mrs L’s case Bodey J has concluded that the state was not directly involved, at least to a sufficient degree. The question of the state’s obligation to protect Mrs L’s liberty was not extensively argued but will arise in safeguarding cases.

Perhaps the most detailed analysis of the factual and conceptual questions about the degree of state involvement required is Munby J’s judgment in Re: A and Re:C (deprivation of liberty) [2010] EWHC 978 paras 106 -109:

“The local authority provides services and support to A and her family and to C and her family. It knows what goes on in the family home. But that is all. A local authority engaged in that way is not, in my judgment, so directly or actively involved in the domestic, family, regime as thereby to make the local authority – the State – responsible for that regime… There was no direct or active involvement by the local authority. It was not the decision-maker. It took no active steps to implement what the families had decided. Mere knowledge, in my judgment, is not enough. Knowledge may suffice to trigger a local authority's duty to investigate and, if appropriate, to invoke judicial assistance”.

However this case needs revisiting in the light of the extensive subsequent authority on deprivation of liberty. It also takes us back to the challenge of identifying the borderline for an arrangement to be imputable to the state. Given the currently low threshold for the engagement - and perhaps breach - of article 5 the state will inevitably be “interfering” more in private lives (and hence article 8 rights). It is likely that the Courts will have to return to this tension.

David Lawson is a barrister at Serjeants’ Inn Chambers. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it..