Alex Ruck Keene analyses a further judicial take on deprivation of liberty.
There have been very few cases concerning the meaning of deprivation of liberty in the context of adults since the immediate flurry of post-Cheshire West activity and the decision of the Court of Appeal in Ferreira about the position in relation to hospitals. The decision of Sir Mark Hedley in A Local Authority v AB  EWCOP 39, handed down in late August 2020 but appearing on Bailii more recently, is therefore noteworthy. It is also noteworthy because it concerns the interaction between the two limbs of the ‘acid test’ set down by Lady Hale in Cheshire West to determine whether a person is confined.
AB was a 36 year old woman. She had been detained under the Mental Health Act 1983 and was then discharged under a Guardianship Order under s.7 MHA 1983 to a supported living placement. Her circumstances were described at paragraph 10 thus:
AB lives in a flat in supported accommodation where there is always support available at any time of the day and night. She is broadly at liberty to do as she pleases within her own flat. She is free to leave the accommodation but her leaving and returning will always be seen by a member of the supervisory staff simply because of the geography of the property. She is required to reside at that property and thus if she fails to return the police would ordinarily be notified. There is extensive support available to her but it is support for her to take up or not as she pleases. She has a long record of being unable to look after her own accommodation and accordingly staff will enter her flat for the purposes of inspecting, cleaning or repairing. Indeed they will often wait for her to leave in order to do that so as to cause the least possible distress to her. It follows that they have access to her property whenever they think fit.
It was common ground (although this is not addressed in any detail in the judgment) that AB lacked capacity to consent to the arrangements in question; they were also clearly imputable to the state. The sole question referred to Sir Mark Hedley by the District Judge with conduct of the case, was therefore whether they amounted to a confinement so that all three limbs of the test for identifying a deprivation of liberty were made out. In answering that question, the issue in dispute was very narrow. It was common ground that the Guardianship Order (which included a condition of residence at the placement) meant that she was not free to leave the placement – the dispute was therefore she was also subject to continuous supervision and control so as satisfy the ‘acid test,’ Lady Hale having made clear that in Cheshire West that “[i]t is possible to imagine certain situations in which a person is not free to leave but is not under such continuous supervision and control as to lead to the conclusion that he was deprived of his liberty.”
Sir Mark Hedley noted that he had been referred to two decisions of trial judges in the Family Division who have had to consider the question of deprivation of liberty (Re RD (Deprivation or Restriction of Liberty)  EW FC 47 and Re HC (a Minor Deprivation of Liberty)  EWHC 2961 (Fam)). However, whilst he considered these cases to be “helpful,” he also noted at paragraph 9 that:
it is vital to bear in mind that they relate to young people who would in any event have been under the watchful eye and authority of concerned parents had they not been in public care. The case of an adult is very different, for part of the rights of an adult are to behave in ways which others might regard as foolish without those others having the right of interference. Thus what may only be a restriction of liberty in a young person may yet be a deprivation of liberty in an adult.
The Official Solicitor contended that AB’s circumstances amounted to continuous supervision and control; the local authority resisted that submission, arguing that “[t]hat the voluntary nature of the support, the freedom to come and go as she pleases and her freedom of action once she has left the accommodation speak more powerfully of a lack of continuous control and supervision” (paragraph 11).
As Sir Mark identified at paragraph 12, what made the case difficult was that both approaches were “inherently reasonable. This is a case at the borderline and is, as the law of the European Court recognises, ‘one of degree or intensity, and not one of substance or nature.’ There is a judicial judgment required.”
Sir Mark was clear that the mere presence of a Guardianship Order with a condition of residence of itself would not amount to a deprivation of liberty, even if it must be recognised that it is a very significant restriction of liberty. There would have to be something more, which, after “very careful consideration” he found there to be in this case:
13. […] it seems to me that the question of supervision and control must be viewed in the context of the prescribed condition of residence. Thus whilst she may be free to leave the property as she chooses, she is always subject to state control requiring her return should she be otherwise unwilling to do so. The fact that she generally willingly returns does not of itself negate this point. Again whilst the supervision of her coming and going is not intrusive, it is the fact that all her movements are known and noted. Moreover, while she is free to do as she pleases in the community, there will inevitably be some obligation to restrain or control those movements should they become seriously detrimental to her welfare. That control could lawfully be implemented without recourse to the Court.
14. When considering a deprivation of liberty it is not sufficient just to see what actually happens in practice but to consider what the true powers of control actually are. Again the power to enter someone’s private residence is a major intrusion on liberty however much, as it is here, it is to the benefit of the protected person for it to happen.
15. When looking at all these matters it is essential to consider them in the round and to ask whether in all the circumstances that actually prevail, or might reasonably come about, the arrangements amount to a deprivation of liberty. In my view they do here. In reaching that conclusion I have drawn upon the policy set out by Baroness Hale and that has, I should acknowledge, been a critical factor in my conclusion. However much these arrangements may be to the benefit of AB, and undoubtedly they are, one has to reflect on how they would be observed by an ordinary member of the public who, I strongly suspect, would regard them as a real deprivation of liberty. The policy that everyone should be treated the same leads me to the conclusion that I have set out.
It should perhaps also be noted that Sir Mark also made the observation (at paragraph 12) that “supervision and control should be viewed as separate requirements in considering [the acid] test and the word ‘continuous’ applied to both.”
This decision is logically impeccable, following clearly as it does the logic of Cheshire West (which, itself did no more than repeat the test for confinement set out by the European Court of Human Rights in HL v United Kingdom at paragraph 91). It also sits clearly in the line of Strasbourg case-law such as Ashingdane and Stanev, both cases in which the ECtHR found that the person in question was deprived of their liberty even though they were subject to periods of time when they were on unescorted leave (of one form or another) from the place where they were required to reside. The case is therefore a helpful reminder that a leash can be long, but so long as it remains a leash, it should be characterised as such.
What this case does not answer – because it is not a question that has yet been tackled head-on by the courts – is whether and how it is legitimate to look to the concept of ‘valid consent’ to see whether it might give a different approach. Indeed, it is perhaps striking that because it was common ground that AB did not have capacity applying the MCA 2005 test to consent to the arrangements, there was no essentially consideration all in the judgment of how AB might feel about them. Some might feel (and I certainly am one of those – see this paper) that we should listen more carefully to those who have been determined to lack capacity, and to reach a conclusion as to whether they are deprived of their liberty based upon whether the circumstances amount to an overbearing of their will. I should emphasise that I have insufficient evidence in this case to be able to venture an opinion either way in AB’s case, but there will definitely be other cases where we might have a clearer idea; this case also makes clear that attempts to ‘rein in’ Cheshire West in this context by arguing about the objective element are likely to face an uphill struggle.