There has been another important decision applying the Supreme Court’s judgment in AGNI. The decision provides a further worked example of how the courts are determining if an individual is deprived of their liberty under Article 5.
Background
The case concerns TW, a 38-year-old woman who has diagnoses of paranoid schizophrenia and global developmental delay, in addition to physical conditions of type 2 diabetes and alveolar hypoventilation due to obesity. TW was formerly a hospital inpatient and, prior to her detention, lived in her mother’s home.
The application was brought as a challenge to the standard authorisation under section 21A of the Mental Capacity Act 2005 (MCA). By the time of the final hearing, that standard authorisation had expired and the court was considering an urgent authorisation.
The standard authorisation was granted prior to the decision in AGNI. Following AGNI, a Senior Best Interests Assessor from the Local Authority concluded that TW was not deprived of her liberty (although the Local authority thereafter adopted a neutral position because that assessment had been based on an assessment whereby the Best Interests Assessor could not engage properly with TW.) The Accredited Legal Representative (ALR) representing TW maintained that she remained deprived of her liberty for the purposes of Article 5.
The court’s findings
In considering the objective element of confinement, His Honour Judge Tindal concludes that there is still an Article 5 deprivation of liberty.
It is described as a borderline case, however, His Honour Judge Tindal was satisfied that it does tip over the line into a true deprivation of liberty under Article 5, not only because of TW's objection, but on a balance of all relevant factors.
The factors pointing away from TW being deprived of her liberty are described as:
The purpose of the placement was therapeutic and protective, rather than punitive.
The placement was relatively normal for someone with TW’s needs and disabilities even though it was not a home environment. His Honour Judge Tindal does describe this as a relatively weak factor as TW has largely withdrawn from usual activities: she did not leave the placement even with staff, rarely engaged in activities, was frequently withdrawn, and had highly restricted contact with her mother.
The factors pointing to a deprivation of liberty were described as:
TW was under continuous supervision and control (1:1 staff during the day and 1:3 at night, with staff always being available to step in during an emergency).
TW was not free to leave the placement.
The provision in TW’s care plan for restraint if necessary, together with the arrangements for regular antipsychotic medication, weighed in favour of confinement. However, restraint had never in fact been used, and the judge did not find that the medication was prescribed to prevent TW from objecting and was not forced upon her.
TW’s clear and consistent objection demonstrated she was experiencing coercion by being compelled to live somewhere she did not want to live. Although her objection was highly significant, it was not determinative by itself, and the conclusion followed from the balance of all the relevant factors. His Honour Judge Tindal observed that, although the placement might appear far removed from confinement in a prison cell to an external observer, it clearly felt like a prison cell to TW.
His Honour Judge Tindal concluded that there was clearly no valid consent by TW to her living arrangements at the placement, whether or not they amount to 'confinement' under the objective criteria. He noted that this case is far clearer than P and AR because TW has consistently objected to the placement, even if she has sometimes (not always) complied with carers and some activities within the home. In this case (unlike in AR and P), the opposite inference of a clear absence of valid consent can be drawn, as TW has consistently expressed that she not only wants to return home with her mother, but is actively unhappy with various aspects of her care and the placement.
Application of the AGNI framework
In making his judgment, His Honour Judge Tindal seeks to use his ‘judicial highlighter’ to provide further clarity on the application of the new framework under AGNI, and to illustrate their application to TW’s individual circumstances.
HHJ Tindal emphasised that there is a focus on the individual's 'concrete situation' taking account of a whole range of factors such as the nature, type, duration, effects and manner of implementation of the living arrangements, with no single factor being determinative. He sets out that whilst it may be tempting to search through AGNI for a clear ‘touchstone’, it is necessary in each case to examine and weigh all the relevant circumstances. The familiar Cheshire West factors - continuous supervision and control and not being free to leave -remain relevant. HHJ Tindal observed that they may be necessary, but are not sufficient by themselves, to establish confinement following AGNI. Earlier DoLS assessments applying the acid test may therefore remain relevant, although they will not be determinative.
In taking valid consent into consideration, His Honour Judge Tindal endorses that, where there is serious doubt, no inference of valid consent should be drawn. Mere compliance or acquiescence will not necessarily amount to valid consent. That said, it is made clear that valid consent to confinement prevents it from being a deprivation of liberty. If no conclusion of valid consent can be drawn, confinement will be a deprivation of liberty even without objection to it. Objection to a placement is also a key consideration when determining whether there is confinement at all.
His Honour Judge Tindal also considered the protections available where arrangements restrict a person’s liberty but do not amount to a deprivation of liberty under Article 5. These may include Article 8, the Mental Capacity Act, the Care Act 2014, advocacy arrangements, safeguarding duties and common-law protections. The availability of other safeguards may reduce the need for continuing court involvement.
It is apparent that this issue will be considered on a case by case basis and that ongoing supervision of the Court of Protection is likely dependent on the safeguards available on the ground.
Key takeaways
All factors must be taken together and no single factor is determinative.
The assessment is person-specific and must focus on the individual’s concrete situation, including the overall effect of the arrangements on them and their wishes, feelings, level of contentment and any objections.
How an individual experiences a factor is highly relevant. An arrangement that may not amount to confinement for one, may do so for another.
A person’s lack of capacity to make decisions about residence under the MCA does not automatically prevent them from giving valid consent for Article 5 purposes. However, mere compliance or acquiescence may be insufficient and where there is doubt about the person’s attitude, no inference of valid consent should be drawn.
If arrangements objectively amount to confinement, are attributable to the state and there is no valid consent, there will be a deprivation of liberty even without active objection. Clear and consistent objection is a significant but not determinative factor when assessing both confinement and consent.
If you'd like to discuss any of the issues raised in this blog, please contact Sophie Ball or Kirstie Lennox. You can also visit our mental capacity webpage for more information.
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