New Deprivation of Liberty (DoLS) case law in which Benjamin Conroy and Rosie Williams of Conroys Solicitors represented the First Respondent. The Court of Protection considered what amounts to a deprivation of liberty when the person is living in their own home. The case has highlighted the need for better guidance for Local Authorities.

The full judgment is available here.

In this most recent decision, Mr Justice Mostyn examined the position of Local Authorities when considering whether an incapacitated person, living in their own home, is deprived of their liberty and the continuing legal controversy of how difficult it is to pin down a definition of what is a deprivation of liberty.

This case considered the position of Ben, a 28 year old man with autistic spectrum disorder and a mild learning disability who was deemed not to have the capacity to make an informed choice about where he lives. His situation is recorded as follows:

"This is a 2-bedroom bungalow with a garden. He lives there on his own and has staff with him in his home for 365 days a year with 24 hour waking night staff attendance provided by Dorset Healthcare University NHS Foundation Trust Domiciliary Care Agency. Ben is subject to constant observation and monitoring and is provided with minimal personal care when he is in his home.

He is encouraged to engage with a timetable devised by staff to ensure all daily tasks are completed within the appropriate times of the day. Ben has difficulties in engaging with the agreed tasks as he invariably declines, and reverts to wanting to go back to the arrangements of previous institutional settings where everything was done for him.

With support, he uses local transport and is involved in doing his own shopping for food and other consumables. Ben needs staff support to encourage him to get out of bed in the morning as he is likely to stay in bed till 12 noon if left. This is managed on a one to one step by step basis. Ben also needs encouragement from the staff to complete his personal care tasks. He has difficulties effectively cleaning himself when in the bath and includes washing his hair. He also needs hands on support to clean his teeth. Without this personal support, Ben would neglect his personal care needs putting his health at significant risk of harm.

Ben does not have access to the kitchen when cooking is being undertaken by the staff as there have been some incidents of him putting himself and others at risk. The incidents have included the inappropriate use of the microwave, putting hot water on an electric kettle base, and all kitchen utensils are in a locked cupboard due to a past incident of him using a pair of scissors as a weapon; he has demonstrated little understanding of the risks associated in the kitchen. The kitchen is therefore locked by a staff member during cooking. Ben is able and does access the kitchen at other times and the care and risk management plan has determined Ben needs staff attendance at all times in the kitchen. Ben has minimal evening or night needs and generally sleeps through the night but on occasions requests staff support if he is unable to sleep. It has been assessed as Ben requiring a waking staff member to support and respond when the need arises to maintain his safety.

Ben's medication is managed and administered by support staff which he accepts and is compliant with the arrangements. The medication is in a locked cupboard managed by staff as Ben has no understanding of the need for his medication and why he is required to take it to maintain good health."

In evidence, it was confirmed that Ben does have some privacy at home and that there are no locks on the doors but there are sensors to alert staff were Ben to seek to leave.

Mr Justice Mostyn concluded that Ben is not being deprived of his liberty as he is not under continuous supervision, he is afforded privacy and he is free to leave, albeit that, were he to do so, his carers would seek to persuade him to return but this persuasion would not cross the line into coercion.

This decision may be seen by many working in the Court of Protection to go against the Supreme Court's decision in P v Cheshire West and Chester Council and another: P and Q v Surrey County Council [2014] 1 AC 896, which stated (1) The 'acid test' for deprivation of liberty is whether the person is under continuous supervision and control and is not free to leave. (2) The following are not relevant: (a) the person's compliance or lack of objection; (b) the relative normality of the placement (whatever the comparison made); and (c) the reason or purpose behind a particular placement. (3) Because of the extreme vulnerability of people like [those concerned in this case], decision-makers should err on the side of caution in deciding what constitutes a deprivation of liberty.

However, Mr Justice Mostyn does not think so, recording:

"In making this decision I am doing no more than interpreting and applying the law, as I understand it to have been stated and promulgated by the majority of the Supreme Court, to the specific facts of this case. In reaching my decision I have reminded myself that, as Bacon wrote, a judge's office is "jus dicere, and not jus dare; to interpret law, and not to make law, or give law."

Of specific note to Local Authorities is his final passing comment:

"I do not criticise this local authority in the slightest 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."

It is highly likely that there are many cases like Ben's that are causing Local Authorities considerable concern. Whilst Mr Justice Mostyn has determined that, in this case, Ben was not deprived of his liberty, many commentators are likely to disagree, leaving the Local Authorities to decide what is and is not a deprivation.

Local Authorities will need to remain extremely vigilant to potential cases, such as Ben's, and tread very cautiously when determining deprivation of liberty. At this stage, Local Authorities will probably be best to seek a determination by the court in all but the most obvious situations until further judicial guidance is available.

Mark Mullins of Outer Temple Chambers was instructed by Conroys as Counsel in this case.