Is he deprived of his liberty? (Plus a request to vary the reporting restrictions – again)

By Celia Kitzinger, 15 August 2023

This is an unusual  s.21A challenge to the authorisation of Mr P’s deprivation of liberty.

The only issue for determination is whether or not Mr P is actually “deprived of his liberty”.

If he is, one of the key safeguards of DoLS is that he will continue to be entitled to non-means tested legal aid. If not, he will lose that safeguard, including his legal representation, as he doesn’t qualify for means-tested public funding.

Background

The case (COP 14094320) was heard remotely by District Judge Bell, sitting in Leeds Combined Court on 7 July 2023.  Lawyers were in court to represent Mr P (Neil Allen), Leeds City Council (Sara Townend), and – newly joined to the case – the Integrated Care Board (Ben Troke).

About a year ago Mr P suffered a severe cardiac arrest – completely “out of the blue”.  He is in his forties. His wife gave him cardio-pulmonary resuscitation and an ambulance was called. He had six shocks and return of spontaneous circulation was achieved after a downtime of 29 minutes. He was admitted to hospital and diagnosed with a resulting brain injury. 

Since Mr P’s discharge from hospital, the Integrated Care Board (ICB) has commissioned a place for him in a care home for neurorehabilitation. 

Two standard authorisations for his deprivation of liberty have been granted, most recently on 1 June 2023. Leeds County Council is the named supervisory body  for the purposes of these two standard authorisations.

Mr P is now spending weekends with his mother, but living at the care home 9am – 4pm for four days a week. This is a shared care arrangement, with a view to him transitioning to live with his mother once rehabilitation is complete.  (His wife has started divorce proceedings.) 

The question raised by the Local Authority as a supervisory body was whether Mr P is still deprived of his liberty, and if so whether that should be authorised by them, or whether the court should authorise the arrangements in their entirety.  

What does “deprivation of liberty” mean?

When considering if a person’s care arrangements amount to a deprivation of liberty, the case of Storck v Germany (2005) 43 EHRR 96  established that there are three broad components to consider: 

(a) the objective component of confinement in a particular restricted place for a not negligible length of time; 

(b) the subjective component of lack of valid consent; and 

(c) the attribution of responsibility to the state. 

In P v Cheshire West and Cheshire Council [2014] UKSC19, the question of what amounts to a deprivation of liberty was considered further.  Lady Hale described an “acid test”, setting out that a person is said to be deprived of their liberty if they are subject to “continuous supervision and control” and are “not free to leave” (§54). Lady Hale also held that “we should err on the side of caution in deciding what constitutes a deprivation of liberty” because of the vulnerability of the people involved.

Is Mr P deprived of his liberty?

On behalf of Mr P,  Neil Allen (via his litigation friend, Accredited Legal Representative, Alison Kaye) takes the position that Mr P’s care arrangements constitute a deprivation of liberty because:

• The unit doors are locked
• Mr P has constant staff support in place and cannot leave the unit apart from arranged overnight periods during the week and “weekend leave” with his mother, as he is vulnerable to possible harm and exploitation of others
• Others have decided that he is permitted to spend overnights and weekends at his mother’s home
• He is required to return to the care home for four days per week between 9am and 4pm
• If he did not return for a long time, the police would be involved to bring him back to the care home
• The care home continues to be fully funded so that, if necessary, Mr P can be required to return to spend overnights and weekends there
• Staff support and prompt Mr P with activities of daily living and assist him with managing his behaviours and activities.
• Staff manage and administer medications in his best interests
• Staff monitor his condition throughout daily activities and record this
• He is not free to leave to live where he wants and has, on occasion, been returned by the police.
• He is not able to manage his own finances.

I think (but don’t know for sure) that Leeds County Council (LCC) must previously have considered that Mr P was not deprived of his liberty.  I think this because the judge made reference to their “current position” (implying a different earlier position) and Neil Allen (for Mr P) said in response that he was “breathing a sigh of relief” – which also suggests that LCC has shifted their position towards his own.  The position statement from LCC doesn’t make reference to any change in their position but simply states that  – erring on the side of caution –  it may be considered that the care arrangements for Mr P do amount to a deprivation of his liberty.  The evidence cited for this position is that Mr P is prevented from leaving the placement between 9am and 4pm, and when he is not present in the placement he is under the supervision of his family at all times. He is deemed to lack capacity to consent to these arrangements (due to his brain injury) and the care arrangements are the responsibility of the state, given that the care plan is commissioned and reviewed by the ICB. 

Parking the “deprivation of liberty” issue

Both parties were content, now, to “park” the question of whether Mr P is properly described as “deprived of his liberty” (and if he is, how that should be authorised) for a next hearing.  Counsel for P said “this may fall away as an issue if and when he is discharged from the care home in September”. 

The judge said she was not in a position to decide today whether or not Mr P was deprived of his liberty, and discussion shifted to other matters.

There are questions about where Mr P is “ordinarily resident”, a need to assess his eligible needs under the Care Act, and arrangements are required for Mr P to meet the judge – face-to-face, as he would prefer.  

The date of the next hearing was set for 2.00pm on 11 October 2023 for two hours. The hope is that, by then, Mr P will be living full-time with his mother and this “might be a final hearing if everything goes according to plan”.

And finally….. Varying the Transparency Order

This was yet another case in which the Transparency Order had been drawn up specifically to prohibit reporting of the name of the Local Authority (Leeds County Council)  in this case (but not the name of the ICB).  

As soon as I received the Transparency Order I checked §6 and found this:

(6) The material and information (the Information) covered by this Injunction is:

      (i) any material or information that identifies or is likely to identify that:

           (a) P is the subject of these proceedings (and therefore a P as identified in the Court of 

                 Protection Rules 2017) or that

            (b) any person is a member of the family of the subject of these proceedings (namely 

                  P), or that 

             (c )  A Local Authority is a party to these proceedings, or that

             (d)  any material or information that identifies or is likely to identify where any 

                    person listed above lives, or is being cared for, or their contact details.

This paragraph is a poorly edited version of the standard template (§ (6)(i)(d) above makes no sense and should have been (6) (ii)). But the key problem is (6)(i)(c) which prevents reporting the name of the Local Authority (or apparently even the fact that there is a Local Authority as a party to these proceedings, though this cannot have been the intention!).

This was an unusual case insofar as I’d been sent the Transparency Order in advance of the hearing (at 9.57am, along with the video-link from the court administrative officer).  The hearing was listed to start at 11.00am, though in the event it didn’t begin until 11.47am: the judge said she’d been “double-listed, and then I was not able to join the link”).  

At 10.35am, I sent this email to the CoP-Leeds email address from which I’d received the Transparency Order and the video-link.

Please could someone forward this email to DJ Bell.  Also, I don’t know who the parties’ legal teams are in this case but if this email could also be forwarded to them, that would be helpful.

Dear DJ Bell

I have just received the Transparency Order for this morning’s hearing, (attached for your convenience).

It says on the face of the order that “any person” has “the right to ask the court to vary or discharge the order“, and I would like to make a request for the order to be varied.

I have no information about the substantive issues in this case beyond what is included in the listing, so it may be that this matter can be easily resolved.

The variation I am asking for relates to §6 “The subject matter of the injunction” which provides a list of information covered by the reporting restriction.  

As usual, §6 prohibits the publication of information identifying or likely to identify that P is the subject of these proceedings and any member of P’s family, or where they live.

What is not usual is that we are prohibited from identifying the public body involved in these proceedings: See  §6(i)(c) “A Local Authority is a party to these proceedings“.

Is there an argument to the effect that identifying the LA would enable identification of P – thus breaching P’s Art. 8 privacy rights? If so, does naming the LA constitute so high a risk to P’s Art 8 rights that the balance tips in favour of this restriction of the public’s Art 10 rights to know the name of the public body involved?   I acknowledge that I am asking this in the absence of any previous knowledge about this case, so it may be that the Art 8/Art 10 balancing exercise has comprehensively undertaken, and that the decision to withhold permission to publish the name of the LA is the outcome of anxious consideration.

However, Local Authorities are public bodies, funded by our taxes and accountable to the public, so it is of some concern to me that we are prevented from reporting the name of a LA in this case.  I believe that the name of the public body is a matter of legitimate public interest.

In sum, I am asking the court to consider whether the TO should be varied so as to lift the prohibition on naming the LA, thereby advancing the judicial aspiration for transparency.

Thank you.

Celia Kitzinger

My concern with the Transparency Order was addressed first thing when the hearing started and occupied no more than about two minutes of the hearing. The judge said the matter of anonymising public bodies was “not something I particularly put my mind to when I approved the Transparency Order” – and as none of the counsel had any objections, she varied the Transparency Order as I had requested.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project. She has observed more than 460 hearings since May 2020 and written more than 100 blog posts. She is on LinkedIn (here), and tweets @KitzingerCelia