The case of AR is an important early decision in what is likely to be a growing body of case law post the Supreme Court’s ruling in AGNI. It is the first case to comprehensively consider the new multifactorial approach to deprivation of liberty. It is also a reminder that deprivation of liberty is both multifactorial and case specific and not a set of circumstances that give rise to deprivation of liberty. The decision will be of interest to providers and supervisory bodies.

AR’s case

AR is a 25-year-old man with a learning disability and autism who lives in supported accommodation. His care plan provides for continuous one-to-one supervision, increasing to two-to-one staffing in the community. Staff may occasionally use physical redirection to keep him safe. His daily activities and routines are closely managed and kept predictable to minimise distress and behaviours that pose risks, including aggression towards others, climbing onto roofs, unsafe interactions with electrical equipment, previous faecal smearing and difficulty coping with changes to routine.

At AR’s placement, the external doors and garden gates are locked, and staff control his access to the community because he is not permitted to leave unaccompanied. The property also has window restrictors and CCTV monitoring

Against this background the Court of Protection considered whether AR’s care arrangements amounted to a deprivation of liberty under the new multifactorial test.

Do AR’s restrictions amount to a deprivation of liberty?

No. Despite the extensive supervision and restrictions built into AR’s care arrangements, the Court held that they did not amount to objective confinement for the purposes of Article 5. AR was therefore not deprived of his liberty.

The Court applying the AGNI principles to the facts of AR’s case, held at paragraph 65:

“(a) AR suffers from a condition that will always require a significant level of supervision. There is a need in his case to ensure a good level of routine and predictability so as to ensure his relative happiness.

• AR will always require restrictions on his movement. He will never be "free to leave" wherever he safely resides, and significant control has to be placed on his movements in and out of his residence.

• Management of his behaviour will always require a high level of supervision and control, including when necessary, restraint.

• Although he is not at his family home, he is at a place which he is able to treat as his own and to personalise his environment. He is able to make friends, and engage in activities in and out of the placement.

• These restrictions are in place for his own good, and are intended to ensure the best outcome for him.

• Although his residence at the placement involves restrictions, they are far away from the paradigm of the prisoner in his cell, or, for that matter the mental patient in his secure unit.

• These arrangements are relatively normal.”

What role do Article 8 rights play and is a review required?

While AR was not deprived of his liberty for the purposes of Article 5, the parties agreed that his care arrangements engaged his Article 8 rights. The Court therefore considered the implications of his Article 8 rights and concluded that a further review was not necessary to safeguard those rights, as they would continue to be protected through the involvement of the local authority, his family, and his advocate.

However, the Court stated that if concerns arise before the end of the 12-month period that AR's rights may be at risk because of a dispute about the care plan, an application should be made to the Court at that stage to resolve the dispute.

Key takeaways

• A reminder of the importance of both objective confinement and valid consent in deprivation of liberty assessments.

• Deprivation of liberty is multifactorial and case specific. Each case will require an assessment based on the multifactorial test set out in AGNI.

• A further reminder of the need to consider an individual’s other protections. For example, when an individual is not deprived of liberty and therefore not entitled to the automatic protections under Article 5.

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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