Deprivation of liberty in 2020
Since the landmark decision of Cheshire West, there have been very few cases regarding the meaning of ‘deprivation of liberty’. However, the court recently reviewed this issue in the case of A Local Authority v AB (2020).
In AB, the proceedings were initiated in July 2018. The subject of the proceedings, AB, is a 36-year-old woman diagnosed with Asperger’s syndrome. Until recently she had been detained under the Mental Health Act 1983 (as amended in 2007) and was discharged under a Guardianship Order, under Section 7 of the Act to a supported living placement. It was up to AB whether to accept the support or not. It was recorded that AB was unable to look after her flat. Staff members would often wait for AB to leave before entering her flat for the purpose of inspecting, cleaning or repairing. AB was broadly free to do as she wished within her own flat and was free to leave the accommodation. However, staff members always observed AB leaving and returning to the flat, because of the set-up of the property. AB was required to stay at the property and if she failed to return, the police would be notified.
All the parties in the case accepted the findings that AB lacked capacity to make decisions regarding her care arrangements and agreed best interest declarations. However, the question posed to Sir Mark Hedley by the District Judge was whether AB’s care arrangements amounted to a deprivation of liberty.
The Official Solicitor considered that AB’s circumstances amounted to continuous supervision and control, whereas the local authority disagreed as AB was given the freedom to come and go as she pleased.
After careful consideration Sir Hedley came to the conclusion that AB’s care arrangements did amount to a deprivation of liberty. Whilst AB was free to leave the property as she wished, she is always subject to state control requiring her to return to the accommodation should she be unwilling to. Furthermore, whilst AB’s supervision was not intrusive, all of her movements were known to the staff members and were noted down. Should she choose to do something that would be detrimental to her health and welfare, there would be some obligation to restrain or control AB’s movements. He did, however, note that the case was borderline.
Sir Hedley also made the observation that the requirements set out in Cheshire West, namely “supervision and control”, should be viewed as separate requirements when applying the acid test – highlighting the importance that the word “continuous” is applied to both requirements.
This case follows the judgment of Cheshire West, as well as the judgments of ECHR cases such as Ashingdane v United Kingdom  ECHR 8 and Stanev v Bulgaria  ECHR 46, which found that a person was deprived of their liberty even though they were subjects to periods of time where they were on unescorted leave. These cases demonstrate that you can still be deprived of your liberty whilst having certain freedoms, not commonly associated with being under restrictions. However, the case of AB does not address whether to look to the concept of “valid consent” when assessing someone’s deprivation of liberty. It could be argued that that the wishes and feelings of P should be looked at carefully when reaching a conclusion as to whether someone is deprived of their liberty.