Bodey J held that Mrs L, a 93 year old lady with Alzheimer’s dementia was not deprived of her liberty in her own home as whilst the care arrangements constitute restrictions on her liberty, they do not quite cross the line to being a deprivation of it. Bodey J concluded that even if Mrs L were deprived of her liberty, it would not be imputable to the state.
Mrs L receives care at home as a result of an arrangement that has been set up by her two adult daughters and the Local Authority. The front door was locked; Mrs L could operate the lock so she could get out into the garden, which was enclosed by a fence and two gates. At night, there are door sensors that would alert either Mrs L’s daughters or the emergency services to enable Mrs L to be safely guided back into the property. Mrs L receives three visits a day from Local Authority specialist dementia carers.
Bodey J concluded: ‘ This is a finely balanced case; but on the totality of everything that I have read in the files, I have come to the conclusion and find that whilst the arrangements (clearly) constitute restrictions on Mrs L’s liberty, they do not quite cross the line to being a deprivation of it. If I were wrong about that, and if there is a deprivation of Mrs L’s liberty, is it to be imputed to the state? On the facts, I find not. This is a shared arrangement set up by agreement with a caring and pro-active family: and the responsibility of the state is, it seems to me, diluted by the strong role which the family has played and continues to play. I do not consider in such circumstances that the mischief of the state interference at which Article 5 was and is directed, sufficiently exists.’
Bodey J made reference to the complexity of this topic and noted that Cheshire West was heard by 7 Supreme Court Justices and that the decision was only by a majority of 4 to 3. Bodey J commented that it is clear from Cheshire West that there may be situations where a person is not free to leave a place, but is not under such continuous supervision and control as to mean that the arrangements put in place constitute a deprivation of liberty, thereby only satisfying one limb of the two limb test.
This is an interesting case involving an unusual care package whereby Mrs L whilst not free to leave is not under continuous supervision and control and is not therefore deprived of her liberty. This case demonstrates a holistic and analytical approach to the question of deprivation of liberty and provides a finely balanced decision taken on all the facts of the particular case. It seems inevitable that the cases involving the element of a person’s ‘own home’ will be an issue to be addressed by the appellate courts.