Bournemouth Borough Council v PS and another  EWCOP (11 June 2015) – read judgment
Mostyn J in the Court of Protection was asked to determine whether care arrangements in place for a 28-year-old man (BS) with severe autism and who lacked capacity constituted a deprivation of his liberty. He concluded that the care arrangements in place were in his best interests and did not constitute a deprivation of his liberty under Article 5 of the ECHR. Although he was subject to observation and monitoring in his own home he was not under continuous supervision and he was afforded appreciable privacy; there were no locks on the doors and he was free to leave.
Interestingly, comments made in this case shows that judges, or some of them, do engage with what is being said about them in the blogosphere.
BS suffered from autistic spectrum disorder and mild learning disability and had exhibited extremely challenging and dangerous behaviour. He lived in his own home and staff were with him at all times. He was subject to constant observation and monitoring but was provided with minimal personal care when he was in his home. There were no locks on the doors although there were sensors which would alert staff if BS tried to leave; in fact, he had never tried to do so. He required staff support at all times when in the community as he lacked road and traffic awareness. However, with support, he used local transport and was involved in doing his own shopping. There was a particular risk associated with BS accessing public toilets, since there had been past incidents of him engaging in inappropriate sexual activity in public places including toilets. As a result, he was supported by staff to use public toilets should he wish to do so. The local authority and BS’s mother were agreed that the current arrangements were in BS’s interests and should continue. The court was further asked to decide what contact BS should have with his mother.
The Court’s Decision
The intensive support and care that a person required to meet their needs plainly did engage Article 5 concerning the right to “liberty and security of person”: it engaged and gave effect to that right to security as set out in W City Council v L  EWCOP 20. As the judge observed, since the decision of the Supreme Court in P v Cheshire West and Chester Council and another  UKSC 19,  1 AC 896
there have been a number of decisions of High Court Judges sitting in the Court of Protection seeking to unravel and apply the acid test for what constitutes a deprivation of liberty. These include two of my own (Rochdale Metropolitan Borough Council v KW & Ors  EWCOP 45 and London Borough of Tower Hamlets v TB & Anor  EWCOP 53) and the recent judgment of Mr Justice Bodey in W City Council v Mrs L  EWCOP 20.
However, there was a continuing legal controversy which showed how difficult it was to “pin down” a definition of what was a deprivation of liberty as opposed to a restriction on movement or nothing beyond humane and empathetic care; the difference was merely one of degree or intensity.
Indeed, Mostyn J noted that his approach in Rochdale provoked a certain amount of criticism. In [the 39 Essex Street Chambers] blog Alex Ruck Keene wrote:
Further, it seems to us that Mostyn J was on thin ice in holding that the Supreme Court had held that “freedom to leave” defined solely in the “macro” terms said to have been identified by Munby J in JE v DE. In the same speech given by Lady Hale noted above and in the course of discussing the situations of P, MIG and MEG, she noted that:
“they were under the complete control of the people looking after them and were certainly not free to go, either for a short time or to go and live somewhere else” (emphasis added).
Whilst, of course, Lady Hale was not speaking in a judicial capacity, at the very least it suggests that she does not consider that the majority held that freedom to leave was only relevant in the ‘macro’ sense.
Taking a step back, and even applying Mostyn J’s analysis of the ‘ordinary’ person able to take advantage of their liberty, we would suggest that an ‘ordinary’ person who was unable to come and go from the place that they live as they see fit would undoubtedly consider themselves to be deprived of an important right. We note in this regard that the Grand Chamber of the European Court of Human Rights placed very considerable emphasis in Stanev on the fact that Mr Stanev was not able to leave the care home for such purposes as visiting the nearby village “whenever he wished” (i.e. not merely for purposes of permanently relocation) in finding that he was deprived of his liberty (see in particular paragraphs 124-128). This is also entirely consistent with the approach adopted in KC v Poland .”
Mostyn J responded to this commentary by emphasising that he did not retreat from this view “one inch”.
I do not think that reliance can be placed on the case of Stanev v Bulgaria (2012) to undermine the definition given by Munby J. As I will explain, Mr Stanev was unquestionably being incarcerated for myriad reasons, and to pluck out one aspect of his detention and then to elevate it into a stand-alone litmus test for the issue does not seem to me to be an example of objective reasoning. Equally, the reliance on one remark, an aside almost, made by Lady Hale in her lecture seems to me to be a very fragile peg on which to hang the rebuttal.
The case of Stanev was perfectly obviously one of “rigorous state detention”. BS, on the other hand, was not being detained by the state. He was not under continuous supervision and he was afforded appreciable privacy. He was free to leave: were he to do so his carers would seek to persuade him to return, but such persuasion would not cross the line into coercion. The deprivation of liberty line would only be crossed if and when the police exercised powers under Section 136 of the Mental Health Act 1983 , a provision that deals with “mentally disordered persons found in public places”. Were that to happen then a range of reviews and safeguards would become operative, but up to that point BS was a free man.
Accordingly, on the specific facts, the acid test was not met: BS was not being deprived of his liberty by virtue of the care package which was approved as being in his best interests. So far as contact was concerned, the present monthly supervised contact would be increased to happen much more frequently and after the passage of a reasonable period under the new routine a review was to take place to see if contact could resume on an unsupervised basis.
Mostyn J did not criticise the local authority in the least for bringing this case.
In the light of the decision of the Supreme Court local authorities have to err on the side of caution and bring every case, however borderline, before the court. For if they do not, and a case is later found to be one of deprivation of liberty, there may be heavy damages claims (and lawyers’ costs) to pay. I remain of the view that the matter needs to be urgently reconsidered by the Supreme Court.
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