We are often asked if community care arrangements amount to a deprivation of liberty and if so, whether an application to Court of Protection to authorise the arrangements is required. In The London Borough of Havering v AEL, a case from early this year, Her Honour Judge Hilder provided a useful refresher on the fundamentals in this area. We think clients will find her judgment useful, particularly as we move towards the introduction of the Liberty Protection Safeguards. We draw out some key points from the judgment below.
The case in brief
AEL is a 31- year-old woman with a diagnosis of trisomy 4p syndrome, who at the relevant time was living in her family home in receipt of a package of care commissioned by London Borough of Havering.
It was accepted by all parties that AEL lacked capacity to make decisions about her care and residence and that the existing care arrangements were in AEL’s best interests. However, the parties were in disagreement over whether the care arrangements caused AEL to be deprived of her liberty.
The Borough’s position was that AEL was “never out of sight from her parents or carers” and whether she was or was not allowed to do something was ultimately something which those responsible for her care exercised control over. In contrast, AEL’s father, JSL, regarded the suggestion that his daughter’s care arrangements amounted to a deprivation of liberty as “palpably nonsense”. The basis for his position was that his daughter’s care was founded on the principle that AEL decides what she wants to do and when she wants to do it.
Her Honour Judge Hilder confirmed that whether care arrangements constitute a deprivation of liberty is now settled law courtesy of the decision in Cheshire West which established the “acid test” for deprivation of liberty as being whether, on the facts of the case, P was “under constant supervision and control and not free to leave”.
In this case, Her Honour Judge Hilder found that AEL was under 24 hour care and supervision, was “never left to her own devices” and was accompanied by carers at all times. Furthermore, although AEL was regularly given the opportunity to make choices about activities, there was a limit to AEL’s ability to do what she wanted. Although efforts would be made to accommodate AEL’s choices, all activities were risk assessed by her parents and/or carers and it was they, not AEL, who exercised control over such matters.
Finding as she did, Her Honour Judge Hilder ruled that the arrangements meant that AEL was as a matter of fact “under constant supervision and control” and not “free to leave” such that the acid test was made out and so AEL was deprived of her liberty (para 47).
A number of key points were referenced in the judgment, including the following:
- the intention behind arrangements or the positive impact they may have for P are irrelevant for determining whether they constitute a deprivation of liberty;
- that arrangements should cause P to be deprived of her liberty is not a criticism of those responsible for the arrangements; and
- if there is ever any room for doubt as to whether or not arrangements constitute a deprivation of liberty, then it is appropriate to err on the side of caution and conclude that they do, thereby ensuring that the individual has the benefit of a periodic, independent check on the arrangements.
This case is a useful refresher on key points of law concerning deprivation of liberty in the community. Clients with responsibility for community care provision should note that if the acid test is met, then there will be a deprivation of liberty and it must be authorised by court order to be lawful.
Applications to the Court of Protection will remain necessary until such time as the new Liberty Protection Scheme comes into force which is expected to be in April 2022 although this looks unlikely given we are waiting for the 12-week consultation on the draft code and regulations.
If you require any assistance with deprivation of liberty or any other matters concerning mental capacity law, please do not hesitate to get in touch with our team of experts.