Two further post-AGNI decisions offer commissioners and providers useful examples of how courts are assessing whether care and support arrangements amount to a deprivation of liberty.
The ZZ case
The Court of Protection agreed an order declaring ZZ’s current arrangements amount to a deprivation of liberty that is necessary, proportionate, lawful and in his best interests.
The case is notable because ZZ’s restrictions are primarily intended to protect the public given the risks he presents. Although there is still some debate as to whether such measures should be described as "in a person’s best interests" in Court of Protection cases.
The case focused on two questions: was ZZ deprived of his liberty and, if so, was that deprivation justified when its primary purpose was to protect the public?
The proceedings examined whether the supported living arrangements for ZZ, a young man with a history of harmful behaviours, amounted to a deprivation of liberty following AGNI.
ZZ’s current arrangements include:
• ZZ receives 24-hour support in a supported living property rented in his own name. The arrangements are intended to meet his assessed needs and manage risks identified by professionals.
• He does not have his own key to his home.
• His movements in the community are supervised.
• All his relationships are subject to oversight and control.
• His access to technology and social media is restricted.
• His electronic devices are removed overnight.
• Safeguards govern his contact with others and his activities in the community.
Applying the AGNI legal framework, the court found that ZZ’s arrangements were highly restrictive, with "almost every aspect of his life is regulated and controlled". In short, he is “unable to exercise the degree of personal autonomy that an ordinary adult in the community would normally enjoy”. The significant restrictions were maintained in part for the protection of the public due to ZZ’s sexual risk profile.
Both the objective and subjective elements of deprivation of liberty were established, with ZZ's compliance amounting to acquiescence rather than valid consent. The third requirement, State attribution, was also met as the State was clearly involved in imposing ZZ’s restrictions.
Turning to the second question, was the deprivation of liberty justified when its primary purpose was to protect the public? The court was satisfied that ZZ’s current arrangements remained in his best interests, providing the least restrictive means currently available to meet his needs and manage the significant risks identified by various professionals.
You can read the decision here.
The WM case
This is the first reported case from the Northern Ireland High Court which considers AGNI. The case concerned a 13-year-old boy, LR with a full care order who lives in a property owned and managed by the Trust. The Trust applied under the inherent jurisdiction and sought declaratory relief in relation to the living arrangements which relate to LR.
LR suffers from autism, global developmental delay and moderate to severe learning disability, with a history of violent and aggressive behaviour towards staff and other residents.
His current placement involves close supervision, normally on a 1:1 basis but at times this is required to be 2:1. Restrictions around his access to the kitchen are required for health and safety reasons and physical restraint where necessary.
The court concluded that LR’s arrangements did not amount to a deprivation of liberty. Although substantial, his supervision responded to his needs rather than being constant. The arrangements’ purpose and practical effect were to help him live safely in the community, not to confine him. The court found that the “arrangements remain far removed in degree and intensity from the paradigm of the prison cell identified in AGNI.”
In conclusion, the court dismissed the Trust’s application for declaratory relief and in so doing, emphasised:
“…the factual conclusion reached in this case should not be treated as establishing that materially similar restrictions will necessarily fall outside article 5. The ratio of AGNI requires a case-specific assessment of the particular individual's circumstances and the nature, duration, manner and effect of the measures in question. Such scrutiny is important to ensure that vulnerable adults and children do not unjustifiably lose the protection which the law otherwise affords them.”
If you'd like to discuss any of the issues raised in this blog, please contact Neil Ward. You can also visit our mental capacity webpage for more information.
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