Judge: Mostyn J
Citation:  EWCOP 39
Ben was 28 years old. He was on the autistic spectrum, had mild learning disability, and needed continuous care. Since 2011 he had been living in a two-bedroom bungalow with staff, 24 hours a day. There was constant observation and monitoring. He was assisted with personal care and encouraged to engage in a timetable of daily tasks. Due to previous risky incidents, Ben was not allowed to access the kitchen when staff were cooking; during this time he had free unsupervised access to all parts of the bungalow and garden. All kitchen utensils and medication were locked away. And when staff were not cooking, he could go into the kitchen but only with staff. He was given complete privacy to masturbate in his bedroom when he wished.
With no sense of road or traffic awareness, one to one staff support was required at all times in the community. Sensors would alert staff if Ben sought to leave the bungalow by himself, although he had never tried. But if he did leave, staff would follow him, attempt to engage with him and monitor him in the community. If he did not want to return home, an escalation of measures would be used, which if unsuccessful ultimately would lead to consideration being given to calling the police to exercise their powers under s 136 of the Mental Health Act 1983. Past sexually inappropriate incidents in public toilets meant that staff had to be nearby when he used them.
Ben’s wishes fluctuated between wishing to return to hospital, where everything was done for him, to wishing to live with his mother. Neither option was possible. Indeed, contact with his mother only took place on a monthly, supervised basis, although this was to be increased and reviewed to see whether it could be unsupervised. The issue was whether Ben was deprived of his liberty. He had been discharged as a party. But his wishes and feelings were made known by a court-appointed independent mental capacity advocate.
Mostyn J summarised the earlier decisions in Rochdale and Tower Hamlets, addressing some of the concerns expressed in our commentaries. One important aspect of the analysis concerns the freedom to leave limb of the acid test. His Lordship noted:
His Lordship observed that the “intensive support and care a person requires to meet their to meet their needs plainly does engage Article 5 ECHR, but not necessarily in the way suggested by the advocates of the term-of-art definition promulgated by the Supreme Court. Rather, it engages and gives effect to the right to security mentioned in that Article” (emphasis in original). Ultimately, whether the circumstances satisfy the acid test was likely to be determined by the “I know it when I see it” legal technique. Or, using the zoological metaphor attributed to the American Poet, James Whitcomb Riley, “when I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck” (para 29).
Mostyn J held that Ben was not deprived of his liberty:
“33. I cannot say that I know that Ben is being detained by the state when I look at his position. Far from it. I agree with Mr Mullins that he is not. First, he is not under continuous supervision. He is afforded appreciable privacy. Second, he is free to leave. Were he to do so his carers would seek to persuade him to return but such persuasion would not cross the line into coercion. The deprivation of liberty line would only be crossed if and when the police exercised powers under the Mental Health Act. Were that to happen then a range of reviews and safeguards would become operative. But up to that point Ben is a free man. In my judgment, on the specific facts in play here, the acid test is not met. Ben is not living in a cage, gilded or otherwise.
Many may empathise with his Lordship’s call for the acid test to be revisited at the highest level. But unless and until that happens, the Supreme Court’s approach to duck-spotting rules. Indeed, the intensity of Ben’s care regime appears to be far greater than that of MIG in the Surrey case. Why she was deprived and Ben was not is therefore difficult to reconcile. Both factual situations walk, swim and quack in a similar fashion. Similarly, according to Lord Kerr in the majority, freedom to leave did “not depend on one’s disposition to exploit one’s freedom.” Again, this is difficult to reconcile with para 25 of the Rochdale decision. The “plan” for returning Ben to the bungalow was far more robust than that in any of the three cases before the Supreme Court.
The case also illustrates the potential impact of the Court of Appeal’s decision in Re X that was handed down two weeks after his Lordship’s decision. It now appears that the person must be joined as a party to deprivation of liberty proceedings in every case (paras 104 and 108). As discussed in the Practice and Procedure Newsletter, it may be that a different direction can be made under Rule 3A (with effect from 1 July 2015), a rule in contemplation by his Lordship. At present, it may be that what Mostyn J did would not satisfy the Court of Appeal as being ECHR compliant. If Ben did have to be a party (which Alex for one would doubt is compelled by the observations in Re X), Ben’s financial circumstances vividly illustrate the unfairness that would have otherwise resulted. Had he been joined as a party, owing to his savings it appears he would have had to pay his legal costs. Why the most vulnerable members of society have to pay the costs incurred in the State acting compatibly with Article 5 remains a mystery.