Bournemouth Borough Council v PS v DS [2015] EWCOP 39

This case concerned an application by Bournemouth Borough Council (‘BBC’) and the main issue for the court to determine was whether or not the care package provided for Ben (‘P’) amounted to the deprivation of liberty within the terms of Article 5.

The Facts
P was born on 12th February 1987 and is 28 years.  P was diagnosed with autistic spectrum disorder and mild learning disabilities. There was no dispute regarding the fact that P lacked capacity for the purposes of the MCA 2005.

In his earlier years P was made the subject of a full care order within family proceedings and placed in a number of institutional placements. In 2011 P moved to his present accommodation, which consists of a two-bedroom bungalow with a garden, where he resides on his own. P has staff in his home for 365 days a year with 24 hour waking night staff. P is subject to constant observation and monitoring. He is provided with minimal personal care.

P is supported and encouraged in the following areas:

• To engage with a timetable to ensure daily tasks are completed within appropriate times of the day;
  
• P declines this on occasions preferring to have things done for him very much like the institutional settings he resided in previously;
  
• Using local transport to do his shopping;
  
• P needs to be encouraged to get of bed in the morning as he is likely to remain in bed until 12 noon if left;
  
• Encouraged to complete personal care tasks - without support P would neglect this;
  
• P does not have access to the kitchen during meal times as he can put himself and others at risk due to previous incidents;
  
• P can access the kitchen at all other times and is attended by staff when he does;
  
• P’s medication is managed and administered by staff, and the medication is locked away;
  
• In daily tasks including using local transport and doing his own shopping.

There are no locks on the doors but sensors would alert staff if he left, although he has not done so. P is able to leave the house but needs one to one support at all times in the community.

Measures were in place in the event that P did not wish to return home. In the event that P could not be persuaded then ultimately the police would be asked to exercise their powers under section 136 of the Mental Health Act 1983.

The court was told in the event that P was to walk out in front of a car the staff would prevent him with a ‘duty of common humanity’.

Concerns
The issue was whether this regime amounted to a deprivation of P’s liberty.

The Law
The court considered the ‘acid test’ in the light of the decision in P v Cheshire West and Chester Council and another; P and Q v Surrey County Council [2014] UKSC 19.

Amongst other cases the court considered was the decision by Bodey J in W City Council v KW & Ors [2015] EWCOP 20. It was stated that: ‘the difference between deprivation of liberty and a restriction to liberty is one of degree or intensity, not one of nature or substance’  [see paragraph 27 of Mostyn J’s judgment].

Decision
The court found that P was not being deprived of his liberty. It found that P was not under continuous supervision. P had privacy and he was free to leave. If he were to leave he would be persuaded to come back but that this persuasion would not ‘cross the line into coercion' [paragraph 33]. The deprivation of liberty would only come in if P was subjected to police powers under the Mental Health Act.

Discussion
This case demonstrates the continuing difficulty in determining whether or not someone is deprived of their liberty if they are assisted and cared for in a non-institutional setting. The court discussed previous cases and stated that the test is likely to be determined by the ‘I know it when I see it’ legal technique’ [see paragraph 29].  Each case will need to be determined on their own facts.

The court looked at the wording of Article 5 and everyone having the right to ‘liberty and security’. ‘Security’ in the case of W City Council was restrictions being put in place for her best interests, which Mostyn J agreed with [paragraph 28].

In this case the Official Solicitor declined to act. As the new rules are not yet in place (but soon to be on 1st July 2015) the court discharged P as a party stating that his views could be properly and fully heard through his IMCA.

The court referred to the increase in these cases since the Cheshire West judgment urging the Supreme Court to urgently consider the matter.

Read the full text of the judgment on Bailii