Re R [2016] EWCOP 33

​The hearing was before Senior Judge Lush who was asked to decide:

• Whether  the Patient, R, is free to leave his supported living placement and, if not,
• Whether he is therefore objectively deprived of his liberty, and,
• Whether any deprivation of liberty is imputable to the state within Article 5 ECHR.

Background
R, now aged 23, has intellectual disabilities, epilepsy and autism. He is non-verbal, self-harms and requires a high level of support from others on a daily basis.

On 30 November 2010 R's father, mother and brother were jointly appointed as deputies for R's property and affairs. They were additionally appointed as his personal welfare deputies for a period of five years from 4 April 2011 to last until 3 April 2016.

The family decided, with guidance from R's social worker, that it was in his best interests to live within supported living accommodation. On 1 September 2015 R moved into supported accommodation in Haringey, London. There were two other male residents and together the three of them shared communal facilities.

On 20 December 2015 Haringey Legal Services ("Haringey") applied to the Court of Protection for an order confirming whether or not R is being deprived of his liberty. They argued he was not being deprived of his liberty and therefore no element of his care is attributable to the State. This was disputed by the Official Solicitor who submitted Haringey was responsible for R's deprivation of liberty and therefore authorisation was needed from the court.

All parties agreed that R lacks capacity to make decisions and that his current placement and care were in his best interests and the least restrictive option. The Local Authority submitted that R's family, as his deputies, should be responsible if there was any deprivation of his liberty and therefore not the responsibility of the State.

Decision
It was held that R was being deprived of his liberty, that deprivation being directly imputable to the State. As it was appropriate to consult R's family, the views of the court appointed deputies were accounted for by the State. Therefore it was the State who were ultimately determining what was in R's best interests.
When considering the objective element, it was decided that R’s care arrangements satisfied the acid test for deprivation of liberty because he was obliged to live in a particular place, constantly monitored and supported, his care was controlled by staff and permission was required should he wish to leave the building. The fact that R does not object to these requirements was an irrelevant factor for the purposes of determining whether he was being deprived of his liberty. As Haringey was directly responsible for R's care arrangements at all times, it was held that the deprivation of R's liberty had been caused by them. 

Discussion and revision of the law
This case offers a useful revision of the law surrounding deprivation of liberty. In order to understand the progression of case law this judgment should be read in full. 

In this judgment, Senior Judge Lush highlights HL v United Kingdom, citing as key the fact that a person concerned must be "under continuous supervision and control" and "not free to leave”.

Section 64(5) of the Mental Capacity Act 2005 gives deprivation of liberty the same meaning as in Article 5(1) of the ECHR:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.” 

The judge also relied on Lady Hale's submissions in P v Cheshire West at paragraph 46:

“What it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.”

When considering whether the acid test outlined in P v Cheshire West is met, it is important to remember that just because an individual is physically unable to leave their placement it does not necessarily follow that the individual is not free to leave. Instead, it should be asked would that individual be allowed to leave if assisted to do so. If this would be facilitated then the individual is not deprived of their liberty.

The judgment refers to paragraph 89 of the judgment in Storck v Germany (2006) 43 EHRR 6 which sets out that the State can be responsible for a deprivation of liberty in three ways:

 “Firstly, her deprivation of liberty could be imputable to the State owing to the direct involvement of public authorities in the applicant’s detention. Secondly, the State could be found to have violated Article 5(1) in that its courts, in the compensation proceedings brought by the applicant, failed to interpret the provisions of civil law relating to her claim in the spirit of Article 5. Thirdly, the State could have breached its positive obligation to protect the applicant against interferences with her liberty by private persons.” 

As imputability to the State was found, it was not necessary for Senior Judge Lush to address the issue of indirect State responsibility. Therefore this judgment is limited in the amount of assistance it offers for future cases involving State responsibility.

Read the full text of the judgment on Bailii