The case of BM is another important early decision following the Supreme Court's decision in AGNI. Following on from AR, it provides further guidance on how the Courts are applying the new multifactorial approach to deprivation of liberty. The decision will be of interest to those assessing whether care arrangements amount to a deprivation of liberty following AGNI.
BM's case
BM is a 16-year-old young person with autism spectrum disorder and a severe learning disability. He lives in a solo residential placement specifically adapted to meet his needs. The restrictions in place included:
Not being free to leave at any time
Continuous visual supervision
Locked doors and windows
Minimum staffing levels of 3:1
Wake-and-watch staff
Locked doors within the home
Prescribed medication
Community access subject to dynamic risk assessment
Physical restraint as a last resort
Prior to AGNI, the Court of Protection found that BM's circumstances would have amounted to a deprivation of liberty under the Cheshire West "acid test". The issue for the Court was whether the arrangements amounted to a deprivation of liberty applying the Supreme Court's new multifactorial approach.
Do BM's restrictions amount to a deprivation of liberty?
The Court accepted that BM was subject to significant restrictions. However, following AGNI, those were no longer determinative. The Court considered BM's circumstances as a whole, including the purpose of the restrictions, BM's disability support needs, the fact that similar levels of supervision would be required wherever he lived and BM's own experience of the arrangements.
The Court noted that BM regarded the placement as his home, had formed meaningful relationships with his carers and derived comfort, stability and security from the environment. The restrictions were not simply aimed at preventing harm. They enabled BM to live in a safe, predictable and supportive environment that met his complex needs.
The Court also placed weight on the fact that the restrictions were not punitive in nature and bore little resemblance to detention in any ordinary sense. Having considered BM's circumstances as a whole, the Court concluded that the arrangements were more properly characterised as an intensive and highly individualised package of disability support than as confinement.
The Court therefore found that the objective element was not established and BM was not deprived of his liberty.
What did the Court say about consent?
Although it was unnecessary to determine the issue, the Court also considered whether BM had validly consented to the arrangements.
While BM was clearly content in the placement and had formed positive relationships with those caring for him, the Court was not satisfied that he had sufficient understanding of the restrictions themselves or the arrangements under which he lived to provide valid consent.
The decision provides a useful reminder that contentment is not the same as providing valid consent.
What about BM's Article 8 rights?
As in AR, the Court considered whether further court oversight was required once it had concluded that Article 5 was not engaged. The Court was satisfied that BM's Article 8 rights would continue to be protected through the existing framework, including the involvement of his social worker, Independent Reviewing Officer, ongoing local authority review processes and the statutory leaving care framework. The Court concluded that no further oversight was necessary.
Key takeaways
This case is a further example of the Courts applying the multifactorial approach established in AGNI. The decision offers some useful guidance on the Court’s approach to deprivation of liberty cases, including:
Restrictions which would previously have amounted to a deprivation of liberty under Cheshire West will not necessarily do so following AGNI.
The Court will consider the individual's circumstances as a whole, including the purpose of the arrangements, their disabilities and support needs and their experience of the restrictions.
The decision provides a useful reminder that contentment is not the same as providing valid consent.
As in AR, the court considered whether alternative safeguards were available once it had concluded that Article 5 was not engaged.
Identifying a deprivation of liberty is a fact specific exercise requiring a holistic assessment of the individual's circumstances.
If you’d like to discuss any of the issues raised in this blog, please contact James Wood. You can also visit our mental capacity webpage for more information.
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