A Local Authority v AB (by her litigation friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Sir Mark Hedley |
| Judgment Date | 20 August 2020 |
| Neutral Citation | [2020] EWCOP 39 |
| Date | 20 August 2020 |
| Docket Number | CASE NO: 13293681 |
| Court | Court of Protection |
[2020] EWCOP 39
IN THE COURT OF PROTECTION
Sir Mark Hedley
CASE NO: 13293681
Ms L Twist of Spire Barristers appeared on behalf of the Applicant.
Mr S Karim QC of Kings Chambers appeared on behalf of the Respondent.
. AB is now 36 years old. She has a diagnosis of Asperger's and as a result has come within the jurisdiction of the Court of Protection. Until recently she had been detained under the Mental Health Act 1983 and was discharged under a Guardianship Order under Section 7 of that Act to a supported living placement. As will appear, the question that I have to determine is whether the arrangements under which this placement operates amount to a deprivation of liberty pursuant to Article 5 of the ECHR.
. AB has had a troubled life that has involved extensive contact with social and psychiatric services including many placements, none of which can be said to have been wholly successful. She has from time to time been subject to Guardianship and Detention Orders under the Act. In November 2016 she was placed at WC but on 12th July 2019 she was subject to detention under Section 2 of the Act, which on 7th August 2019 was converted into a Section 3 detention. On 27th January 2020 she was made subject to a further Guardianship Order and transferred to her present placement, where she seems to have settled satisfactory.
. The current proceedings in the Court of Protection were instituted on 12th July 2018 and there have been numerous orders since that date culminating in an order of 20th May 2020 by the nominated District Judge. That order contains the following material provisions –
1. AB lacks capacity to:
a. Conduct these proceedings;
b. Make decisions as to where she should live;
c. Make decisions as to what care and support she should receive; and
d. Enter into and terminate a tenancy agreement.
2. It is in AB's best interests to receive a package of care and support in accordance with her assessed needs, which includes authority for AB's landlord and/or their servants or agents to enter the property in order to carry out an inspection of its condition and to undertake any essential maintenance or cleaning.
All parties accept those findings and agree the best interests declaration. The matter has been referred to me simply on the question as to whether there is a deprivation of liberty. However I think there should only be one order in these proceedings and, accordingly, I propose to incorporate the above findings in my final order.
. It follows that the balance of this judgment will focus on the question of whether or not the present arrangements amount to a deprivation of liberty. If they do not, then the order of the District Judge can stand as the final order in the proceedings but, if they do, all parties continue to agree that these are the best arrangements and do not oppose the court authorising the deprivation of liberty subject to review provisions which the parties believe they are capable of agreeing.
. Central to my consideration of this question are the judgments of the Supreme Court in P v Cheshire West [2014] UKSC 14. I propose to focus principally on the leading judgment of Baroness Hale. That judgment contains a review of the European authorities, which I do not propose separately to review as it is the judgment of the Supreme Court that is the binding authority. The propositions laid down in that case are not controversial as between the parties.
. Every citizen has the benefit of Article 5 of the European Convention on Human Rights and the same law is applicable to every person whatever their nature or disability. Moreover it is clear that deprivation of liberty must be given its literal sense irrespective of the beneficent intention that might lie behind the arrangements. The difficulty lies in distinguishing between restrictions of liberty, which do not offend Article 5, and a deprivation of liberty, which does. Both the European authorities and the Supreme Court recognise that at the borders there will be issues of degree and intensity. However in approaching that I must bear in mind the policy articulated by Baroness Hale when she said this –
“(57) Because of the extreme vulnerability of people like… I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty in their case. They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection… Nor should we...
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