JE v DE and Surrey County Council  EWHC 3459 (Fam)
In determining whether a person is deprived of his liberty, the crucial question is whether he is is “free to leave” the institution, not only for approved outings but also permanently to go or live where or with whom he chooses; there can be deprivation of liberty in the absence of a lock or physical barrier, and it can equally be caused by the misuse or misrepresentation of even non-existent authority
JE objected to SSC's removal of her husband DE first to X residential care home, and then to Y residential care home; EW is DE's daughter by a previous marriage. JE claimed that SSC had breached, and continued to breach, DE's Article 5 rights, and the Article 8 rights of them both. She sought declarations, and an injunction to ensure that DE would return to the matrimonial home.
This judgment related solely to the question of whether, and if so when, DE had been deprived of his liberty by SSC. A hearing on the remaining issues will be held in January 2007. This precis uses the same headings as the judgment itself.
It is possible for there to be a deprivation of liberty, within the meaning of Article 5, without there being imprisonment in the context of the tort of false imprisonment (See HL v UK 45508/99  ECHR 471 at para )
The classic statement of principle as to the meaning of deprivation of liberty is found in Guzzardi v Italy 7367/76  ECHR 5:
- “[Article 5(1)] is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No. 4 [...]
- In order to determine whether someone has been ‘deprived of his liberty’ within the meaning of Article 5, the starting point must be his concrete situation 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 difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance.”
The same test was applied in Ashingdane v UK 8225/78  ECHR 8, Nielsen v Denmark 10929/84  ECHR 23, HM v Switzerland 39187/98  ECHR 157, HL v UK (2004) and Storck v Germany 61603/00  ECHR 406.
The law – the Strasbourg case-law
Nielsen v Denmark (1988) concerned a child's admission to a psychiatric ward which had been arranged by his mother; there was no deprivation of liberty. The case was subsequently explained in HL v UK as concerning the proper ambit of parental authority, and therefore is of no real assistance in assessing whether an adult is deprived of his liberty.
HM v Switzerland (2002) concerned an adult in what the majority of the court considered to be 'comparable circumstances' to Nielsen; again, there was no deprivation of liberty. The case was subsequently explained in Storck v Germany: HM had capacity to object but was undecided; the clinic were entitled to infer consent from the lack of objection. By contrast, DE seemingly lacks capacity and has objected throughout.
In HL v UK (2004) the ECHR decided that there had been a deprivation of liberty. (Previously, the House of Lords had decided 3:2 that there had not been detention for the purposes of the tort of false imprisonment.) The concrete position was that HL was under continuous supervision and was not free to leave; if he had tried to he would have been prevented; the question of whether the ward was locked was not determinative.
In Storck v Germany (2005) the patient was objectively deprived of her liberty as she was under the continuous supervision and control of the clinic; was not free to leave, as evidenced by physical restraint, and forcible return when she did leave; and lacked social contact with the outside world. Deprivation of liberty also required, as a subjective element, lack of consent: assuming she had capacity, there was no basis for an assumption of consent; alternatively, if she had no capacity she could not be considered to have validly consented. At one point she had returned voluntarily to the clinic, but the right of 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.
R (SSHD) v MHRT, re PH  EWCA Civ 1868 concerned conditions that PH reside at accommodation with appropriate security and not leave without an escort, and whether they would would inevitably – as the concrete details of the measures were not yet known – lead to a deprivation of liberty. The Court of Appeal restated the principles from Guzzardi v Italy (see above); and stated, citing Nielson v Denmark and HM v Switzerland, that if the measures were taken principally in the interests of the individual concerned they may well not amount to a deprivation of liberty. Munby J cast doubt on this last principle, in the light of the (later) cases of HL v UK and Storck v Germany.
The law – submissions
SSC sought to rely on HM but the claimant argued that HM turned on inferred consent, not best interests, and DE clearly did not consent.
SSC also relied on PH. The claimant argued that ECHR jurisprudence had moved on since then and that in any event it was not decided that PH was not deprived of his liberty, just that he would not inevitably be.
The law – discussion
The starting point was the principle in Guzzardi and Ashingdane (see above). Neilson was of no assistance and HM of little assistance. HL and Storck were of much more significance.
Munby J adopted the following formulation of the legal position (reproduced almost verbatim):
- (i) 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) (different considerations may apply in the case of a child where a parent or other person with parental authority has, in the proper exercise of that authority, authorised the child’s placement and thereby given a substituted consent):
- (a) an objective element of a person’s confinement in a particular restricted space for a not negligible length of time (Storck at para );
- (b) a subjective element, namely that the person has not validly consented to the confinement in question (Storck at para );
- (c) the deprivation of liberty must be imputable to the State (Storck at para ). (It was common ground that both the X home and the Y home are managed by SCC, a public authority.)
- (ii) As regards the objective element:
- (a) 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 (Guzzardi at para , Nielsen at para , HM at para , HL at para  and Storck at para ).
- (b) In the type of case with which I am here concerned, the key factor is whether the person is, or is not, free to leave (HL at para ). 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 (HL at para ).
- (c) Whether the person is in a ward which is ‘locked’ or ‘lockable’ is relevant but not determinative (HL at para ).
- (iii) As regards the subjective element:
- (a) A person may give a valid consent to their confinement only if they have capacity to do so (Storck at paras  and ).
- (b) Where a person has capacity, consent to their confinement may be inferred from the fact that the person does not object (HL at para  and Storck at para  explaining HM at para ).
- (c) No such conclusion may be drawn in the case of a patient lacking capacity to consent (HL at para ).
- (d) Express refusal of consent by a person who has capacity will be determinative of this aspect of ‘deprivation of liberty’ (Storck at para ).
- (e) 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, whether he has capacity (Storck at para ) or not (HL at para ). 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.
DE suffered a stroke and is consequently blind with short-term memory impairment; has dementia but expresses his wishes clearly; and probably lacks capacity to decide where he should live. DE and JE moved in together in 2004; DE then lived voluntarily at X from July 2004; was taken home by JE in August 2004; was retaken to X by SCC on 4 September 2005 and then to Y on 14 November 2005. The move to X in September 2005 was precipitated by JE placing DE on a chair on the pavement in protest at a perceived lack of support from social services, and it was the period following this that was the subject of the claim.
At both X and Y, DE was given a significant degree of freedom within the homes. He would have required assistance to walk out, but was taken for walks. He had regular telephone contact with his wife and daughter, and received visits. However, the care notes at Y, and various other contemporaneous records, indicated his often-expressed wish to leave and live with JE.
SSC's view was clear from various sources: the common law doctrine of necessity was being used to keep DE from leaving X for the matrimonial home; they threatened JE with calling the police if she attempted to remove DE, and intended to do so if the situation arose. JE's view was that she was not allowed to remove DE, and had not attempted this for fear of the police being called. On one occasion it was documented that JE had been refused permission to take DE to a pub. SSC's assertion during litigation that DE was free to leave was not accepted as truthful. EW, the daughter, supported the placements, and said that when she visited no restrictions had been placed on DE's movements.
The facts – SSC's submissions
SSC submitted that DE was merely subjected to restrictions on, not deprivation of, his liberty – both within the house (e.g. lack of restraint or continuous observation) and relating to outside contact (e.g. freedom to contact others and leave the home).
The limitations to this were that SSC restricted unplanned, unaccompanied, outings with JE when she was unsettled; and that SSC would not agree to DE living with JE (they would, however, agree to a suitable placement other than Y). SSC accepted during the course of litigation that they have no power to prevent these things: although they would call the police, the police would have no powers unless s136 applied, or to prevent a breach of the peace.
SSC submitted that the restrictions were in DE's best interests; he was not distressed by or resisting them; and the strength of his wish to go home had to be assessed within the context of his incapacity in respect of that decision. SSC submitted that the facts were unlike HL, but close to HM and PH.
The facts – claimant's submissions
The claimant submitted that the concrete situation was that DE had not been free to leave either home. The “message” given to JE and DE – supported by the records and in contrast to SSC's witness statements – was that JE was not allowed to remove DE, and that the police would be called if she tried.
Unlike in HM, DE had regularly expressed his wish to leave and live with JE. Although DE had a significant degree of control over daily activities and contact with the outside world, he was effectively under SSC's control in relation to the essential matter of where he can live, whether he can leave, and whether he can live with JE. Moreover, the regime had been of significant duration and was intended to be indefinite.
The fact that SCC believed it was acting in DE's best interests, even if relevant, was not a decisive factor and must not be accorded too much weight.
Finally, the claimant submitted that, objectively, SCC has exercised complete and effective control over DE's care and movements, and he has not been “free to leave” either home; and, subjectively, DE lacks capacity, and in any event has made it clear that he does not consent.
The facts – discussion (and decision)
DE was deprived of liberty in both X and Y.
DE had a substantial degree of freedom within the home and relating to outside contact, and was not subject to the same degree of control as in HL. But the question is, rather than the extent of the curtailment of DE's freedom within the home, whether he was deprived of his liberty to leave the homes, not just for approved trips, but permanently to live with DE or whomever he choses. Just as in HL, the crucial question is whether DE was or is “free to leave”: he was not and is not.
Further, there is no requirement for a lock or physical barrier for there to be a deprivation of liberty (e.g. a Categoy C prisoner is said to be deprived of liberty); whether a patient is kept in locked or open conditions is not determinative (see HL).
Particularly illuminating was the evidence of (i) SCC's understanding of the legal position and the common law doctrine of necessity, and (ii) their statements to various people to the effect that they were not allowing DE to leave and that the police would be contacted if this were attempted. In relation to the latter point, a person can as effectively be deprived of his liberty by the misuse or misrepresentation of even non-existent authority as by locked doors of physical barriers.
For the above reasons, DE has been deprived of his liberty since his move to X on 4 September 2005, and remains so deprived.
Mr Paul Bowen (instructed by Miles & Partners) for the claimant (JE)
Miss Jenni Richards (instructed by Mackintosh Duncan) for the first defendant (DE)
Ms Fenella Morris (instructed by Legal and Insurance Services, Surrey County Council) for the second defendant (SCC)
The third defendant (EW) appeared in person
Hearing dates: 1, 8 November 2006