E & E v Surrey County Council [2006] EWHC 3459 (Fam)

In this case (decided in December 2006)  the incapacitated person’s wife brought declaratory relief proceedings against Surrey County Council (SCC) for keeping and caring for her husband for 9 months before she started the action.

On the preliminary issue of whether the man had been and was being deprived of his liberty, the judge found that the intention behind the deprivation of liberty was not relevant as to whether it had or had not occurred. He agreed that the right to liberty was too important in a democratic society for a person to lose the benefit of the Convention protection for the single reason that he may have given himself up to be taken into detention.

The judge’s conclusions are telling: the man was “quite plainly was not ‘free to leave’ the home … he had been and continued to be “deprived of his liberty”. He had repeatedly expressed his wish to be living at home with his wife and had made it clear that he was in the care home “against his will.” The ‘message’ consistently given to the couple was understood by them as being to the effect that the Police would be called in order to foil any attempt to take the man back home. SCC’s purpose in referring to the Police was to prevent the man being removed. The judge said that a person can be as effectively “deprived of his liberty” by the misuse or misrepresentation of even non-existent authority as by locked doors and physical barriers.

The judgement reminds us that the current leading case, Storck v Germany (2005) holds that there are three elements relevant to the question of whether in the case of an adult there has been a ‘deprivation’ of liberty engaging the State’s obligation under Article 5(1) of the Convention.
•         an objective element of a person’s confinement in a particular restricted space for a not negligible length of time
•         a subjective element, namely that the person has not validly consented to the confinement in question
•         the deprivation of liberty must be imputable to the State;
As regards the objective element, the starting point must be the concrete situation of the individual concerned and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of and a restriction upon liberty is merely one of degree or intensity and not one of nature or substance.

The key factor is whether the person is, or is not, free to leave. This may be tested by determining whether those treating and managing the person exercise complete and effective control over the person’s care and movements. Whether the person is in a ward which is ‘locked’ or ‘lockable’ is relevant but not determinative.

As regards the subjective element, a person may give a valid consent to their confinement only if they have capacity to do so. Where a person has capacity, consent to their confinement may be inferred from the fact that the person does not object. Express refusal of consent by a person who has capacity will be determinative of this aspect of ‘deprivation of liberty’.

No such conclusion may be drawn in the case of a patient lacking capacity to consent. The fact that the person may have given himself up to be taken into detention does not mean that he has consented to his detention. The right to liberty is too important in a democratic society for a person to lose the benefit of the Convention protection for the single reason that he may have given himself up to be taken into detention.

On the facts of this case, the man involved had been deprived of his liberty.

The man was now aged 76. A major stroke in 2003 left him blind and with significant short-term memory impairment. He was disorientated and needed assistance with all the activities of daily living, and a guide when walking. Although he suffered from dementia he is able to express his wishes and feelings with some clarity and force, though expert evidence suggests that he has a psychological dependence on others, so there was room for debate as to just how genuinely independent his expressions of wish actually were. The available evidence strongly suggests that he lacked the capacity to decide where he should live.

He and his wife had known each other for many years, though they married only in 2005. The man was placed by SCC at the care home following an incident – his wife, who had intermittent mental health problems of her own, felt that she could not care for him and placed him in a chair on the pavement in front of their house and called the Police.

At the care home the man’s room was on the second floor, so he would have had to come down stairs or use the lift to exit the building. The front door was operated by pushing a button on the wall to release the door. Given his disabilities, he would have been unlikely to have been able to find the exit doors and open them without assistance.

His wife’s evidence was that “it has been made clear to me that I was not allowed to take him home with me.” She interpreted a council letter as meaning that if she attempted to remove him the Police would be called to stop her doing this. She said she was frightened by this and therefore had not attempted to remove her husband and take him home. When she did try to take him out she was told in clear terms that she was not allowed to remove him. At no time had it ever been suggested to her that should she try to remove her husband, nothing would be done to prevent it.

The factors in favour of this situation not being seen as deprivation of liberty were the following:
• He had his own room, shared use of communal space and free access to the entire home;
• He was not subject to any physical or chemical restraint;
• He was not subject to continuous observation (as HL was) and only had contact with care staff which was either initiated by him or otherwise necessary to meet his care needs;
• He was offered as much choice as possible about his day–to–day life within the constraints of his disabilities;
• There were no issues of dispute or compulsion arising out of the man’s care or treatment.
• There were no restrictions on his telephone contacts with others, save those arising out of his own disability – and care was provided to enable him to overcome those;
• Nor on his movements outside the home: he regularly went and was encouraged to leave the home, as far as his disabilities and inclinations allow;
• His contacts with any other person than his wife, and steps were taken to encourage him to engage with others;
• His unlimited contact with his wife in the home, which was facilitated by SCC and the home, and was limited only to the extent that was absolutely necessary in order to protect his safety;

The only limitation was that it was the clearly–expressed view of SCC that it would not be in his best interests for him to return to live with his wife; indeed SCC “will not agree” to him returning to live or visit with his wife. On the other hand, SCC would not object in principle to him living in some other suitable place, for example, with his daughter or in some other residential establishment selected by him or on his behalf in accordance with the relevant regulations under the National Assistance Act 1948.

The judge accepted that he had within the care home, a very substantial degree of freedom, just as he had and has a very substantial degree of contact with the outside world. He agreed that he had never been subjected to the same invasive degree of control, let alone the same complete and effective control within the two homes, to which the man HL was apparently subjected in the Bournewood case. He had never been subjected to either physical or chemical restraint within either institution.

However, the crucial question in this case was not so much whether (and, if so, to what extent) his freedom or liberty was curtailed within the institutional setting. The fundamental issue in this case, was whether he was deprived of his liberty to leave the home. He clarified that he did not mean for the purpose of some trip or outing approved by SCC or by those managing the institution; but leaving in the sense of removing himself permanently in order to live where and with whom he chose.

The other factors that supported this conclusion were SCC’s understanding of the legal position. It was clear from a number of contemporaneous references that SCC understood the placement to be “under” or “on the basis of” the common law doctrine of necessity. Moreover, it was also apparent that SCC understood the common law doctrine of necessity as being something that “could be used to keep the man at the home and something that would be “used to maintain” the placement; as something that “could be used to prevent” the wife removing the man; and as something meaning that his “wishes can be overridden in his best interests”.
The instructions given by SCC to the staff at both homes and the extensive evidence of what the officers had said to others were also relevant factors as to whether they even thought they were depriving the man of his liberty. The home manager said that she understood her instructions to be that the Police should be called if the wife attempted to remove the man and accepted that her understanding was that he was not free to go home with his wife and she agreed that she had told him he could not leave to return home with his wife. Counsel accepted that SCC “will not agree” to the man returning to live or visit with the wife and that it would contact the Police in the face of persistence.

So the fact that there is no perimeter security at the home, and the fact that he can walk out at any time merely by operating a key-pad (assuming he is able to do so) is not determinative of the question whether he is nonetheless being “deprived of his liberty.”

This case renders the interim guidance from government as to how to minimise the risk of being “Bournewood-ed” when protecting people from their own incapacitated tendencies, effectively inadequate.

It also raises the question, yet to be decided on the best interests hearing due for March 2007, whether it is in fact possible to detain someone for their own best interests (assuming they are actually incapacitated) without going to court first. After the Mental Capacity Act comes in to force, that will definitely not be possible, but up until then it remains arguable, although unattractive, at common law, because a declaration only declares lawful that which was always lawful, but as to which there was intractable debate.

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