Judge: Lieven J
Citation:  EWCOP 68
In this case, Lieven J considered whether a “community DoL” order that had been in place in respect of an 18 year old woman (“JK”) since January 2020 should be continued.
JK had been diagnosed with diabetes in 2008; and over the years had had many problems managing her diabetes and her mental health, which resulted in frequent stays in hospital. Those stays culminated in an admission to Intensive Care in January 2020, as a result of having four seizures as a result of not controlling her diabetes. HHJ Scarratt then issued an order depriving JK her of liberty at the regional hospital because she did not meet the threshold for being detained under the Mental Health Act 1983.
In April, JK had been assessed as lacking capacity to make decisions concerning her care and treatment. Over time, JK became more accepting of the restrictions in place at the hospital and she was eventually discharged to an independent placement on 5 October 2020, following a transition period. On 28 October 2020, JK was again admitted to hospital for an overnight stay as a result of high ketone levels, but otherwise she had been doing well and had managed to obtain a place on a university course.
A further assessment regarding her capacity concluded that:
In determining whether to continue the deprivation of liberty order, Lieven J had to consider three issues:
Given the most recent assessment, Lieven considered the authority of DN v Wakefield MDC  EWHC 2306 (Fam), in respect of fluctuating capacity or potential future loss of capacity. She determined that when JK was upset or in a heightened state she lost the ability to weigh up relevant information and therefore “she may prospectively lose capacity” (para 26).
Applying the test in Storck v Germany (2005) 43 EHRR 6, Lieven J was far from convinced that the restrictions sought by the local authority constituted a deprivation of liberty: JK had capacity to decide where she lived, and the local authority sought only the court’s authorisation to (i) transport JK to a place of safety in the event of a medical emergency (and could use reasonable force) and (ii) take steps to prevent her from leaving the hospital for the purpose of medical treatment (and could use reasonable force). Lieven J determined, however, that given the order was anticipatory in nature, rather than having the concrete facts before her, it was appropriate for her to assume that there would be a deprivation.
As to JK’s best interests, Lieven J took into account JK’s strongly held wishes and feelings that she did not want the deprivation of liberty to continue for two reasons: (1) she wanted her autonomy and (2) the order prevented her from pursuing her desired career with the police. She acknowledged the significant risks posed to JK, but cited Munby J in Local Authority X v MM & Anor  EWHC 2003 (Fam) at  regarding the importance of understanding that those who lack capacity, must, to a proportionate degree, be allowed to take risks and to test out their own capabilities:
A great judge once said, “all life is an experiment,” adding that “every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge” (see Holmes J in Abrams v United States (1919) 250 US 616 at pages 624, 630). The fact is that all life involves risk, and the young, the elderly and the vulnerable, are exposed to additional risks and to risks they are less well equipped than others to cope with. But just as wise parents resist the temptation to keep their children metaphorically wrapped up in cotton wool, so too we must avoid the temptation always to put the physical health and safety of the elderly and the vulnerable before everything else. Often it will be appropriate to do so, but not always. Physical health and safety can sometimes be bought at too high a price in happiness and emotional welfare. The emphasis must be on sensible risk appraisal, not striving to avoid all risk, whatever the price, but instead seeking a proper balance and being willing to tolerate manageable or acceptable risks as the price appropriately to be paid in order to achieve some other good – in particular to achieve the vital good of the elderly or vulnerable person’s happiness. What good is it making someone safer if it merely makes them miserable?
She determined that JK had reached a stage where she needed to be trusted to make her own decision; and that a deprivation of liberty order would cause her great stress. Lieven J therefore declined to continue the deprivation of liberty order.
The concept of fluctuating capacity can cause difficulties for many practitioners – Lieven J’s reframing that concept as a “potential future loss of capacity” is a helpful way of thinking about it, particularly when considered alongside the often permissive (rather than definitive nature) of orders made in respect of an individual with fluctuating capacity.
Furthermore, Lieven J’s observation of the distinction between the approach of the Court of Protection and that of Strasbourg to deprivation of liberty is important. The court is often faced with future restrictions on P’s liberty and in the abstract a decision needs to be taken as to whether those restrictions might amount to a deprivation of liberty. That differs significantly to the position facing the Strasbourg court, which, in most cases, considers whether concrete facts do constitute a deprivation of liberty.
The judgment, though, does need to be read alongside that of Hayden J in GSTT v R  EWCOP 4 where he held that the Court of Protection cannot make anticipatory decisions under s.16 MCA 2005 where the subject of the proceedings currently has capacity. Whilst the court can make declarations of lawfulness on a ‘contingency’ basis under s.15(1)(c), Hayden J was clear in GSTT that to the extent that the effect of the relief being granted by the court gives rise to a deprivation of liberty, any such deprivation of liberty can only be authorised under the inherent jurisdiction of the High Court. As Lieven J brought the order to an end, these rather knotty jurisdictional questions did not – thankfully – have to confront her.