Judge: Upper Tribunal Judge Jacobs
Citation:  UKUT 475 (AAC)
The Upper Tribunal has now pronounced upon the application of the decision in Cheshire West in the context of guardianship.
Mr L, who had mild to moderate learning disabilities, was made subject to the guardianship of his local authority. Both parties before the First Tier Tribunal (‘FTT’) had agreed that he met the statutory criteria for guardianship. They also agreed that the Tribunal should proceed on the basis that he was deprived of his liberty and that he did not consent to such deprivation. It is also important to note (although this is implicit rather than explicit in the judgment) that Mr L had capacity to take the material decisions.
The issue put to the FTT was whether, in those circumstances, it should exercise its discretionary power under s.72(4) MHA 1983 to discharge Mr L from guardianship. It decided not to do so, applying the decision in GA v Betsi Cadwaladr University Health Board  UKUT (AAC) 0280 (AAC), in which the Upper Tribunal made clear the very narrow scope of the discretionary power. The FTT identified the source of Mr L’s dissatisfaction to be the way that the care plan was being implemented rather than with the guardianship itself. The FTT refused to exercise its discretionary power to discharge.
Mr L appealed (with the permission of the FTT) to the Upper Tribunal. The central argument advanced on his behalf was that the ‘force’ that caused the deprivation of his liberty was the guardianship. The local authority contended that the material cause was the care plan and the arrangements to which he was subject under that plan. It is also important to note – because it does not appear from the face of the judgment and the judgment does not otherwise make sense – that the local authority were not imposing the care arrangements. If, therefore, the local authority was correct and the material cause of any deprivation of Mr L’s liberty would have been the care plan, then on this premise, there would in fact have been no deprivation of his liberty. It is perhaps worth noting that – given that Mr L had capacity in the material domains, given that he did not consent to the arrangements in the care plan, there would have been no lawful basis upon which it could have been imposed: it would only been possible to impose a care and treatment plan amounting to such a deprivation of liberty by way of detaining him under the MHA 1983.
Judge Jacobs’ discussion of the interrelationship between guardianship and deprivation of liberty is sufficiently important to merit reproduction in full:
“G. Guardianship and deprivation of liberty
4. There are three components to a deprivation of liberty. They were conveniently set out by Baroness Hale in Surrey County Council v P at :
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 consent; and (c) the attribution of responsibility to the state.
Component (a) is not limited to physical confinement. It requires more than this, as Lord Neuberger identified at :
I consider that the Strasbourg court decisions do indicate that the twin features of continuous supervision and control and lack of freedom to leave are the essential ingredients of deprivation of liberty (in addition to the area and period of confinement).
Mr Pezzani relied in particular on a passage from Baroness Hale’s judgment at . She was making the point that the test was the same for everyone, whether or not they were disabled. In doing so, she gave a description of what could be a deprivation of liberty:
If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person.
5. Like the First-tier Tribunal, I will deal with the case on the basis that Mr L was deprived of his liberty. The question is: what was the cause of the deprivation? Was it, as Mr Pezzani argued, the guardianship? Or was it, as Mr Patel argued, the care plan? I accept Mr Patel’s argument.
6. It is possible for guardianship to be set up in a way that does involve a deprivation, but guardianship of itself does not necessarily involve a deprivation of liberty. Mr Pezzani accepted that and that is what the Code of Practice says. Guardianship provides a minimal legal framework of control within which other care can be provided. The features of guardianship are set out by section 8(1). They allow the guardian to control only three aspects of the patient’s life:
Those are the statutory limits on the powers of a guardian as such. I find it difficult to imagine a case that could realistically arise in which those basic powers could be used in a way that would satisfy the conditions for deprivation of liberty.
7. Guardianship does not exist for its own sake. It exists for the purpose of providing a basic framework of compulsion within which care can be provided, as paragraph 26.2 of the Code of Practice explains. That is why an application for guardianship should be accompanied by a comprehensive care plan, as advised by paragraph 26.19 of the Code. It is in the details of that plan that the potential for restriction, supervision and control sufficient to amount to a deprivation of liberty lies. That is what the tribunal found and I can find no flaw in the tribunal’s conclusion. It was a realistic analysis and, I consider, the only realistic analysis.
8. I accept that it is necessary to take account of what the caselaw calls the whole situation. I also accept that guardianship and a care plan go together, but a care plan need not involve a deprivation of liberty. It would be a distortion of the limited effect of guardianship in this case, and I suspect generally, to see it as the cause of a deprivation of liberty that arises from the contents of the care plan.
9. I therefore dismiss this appeal on the ground that the guardianship did not give rise to a deprivation of liberty and the tribunal was not obliged to exercise its discretion to discharge the patient. It exercised its discretion rationally, relying on relevant considerations only. For what it is worth, I consider that it came to the correct conclusion.”
This decision is of no little importance for its conclusion that, as a matter of general principle, the use of guardianship will not, itself, give rise to a deprivation of liberty. Given the emphasis of the majority in Cheshire West upon the requirement not merely that a person is not free to leave but also that they are subject there to continuous supervision and control, we would suggest that Judge Jacobs was plainly correct to find that the ability of a guardian to direct where a patient lives will be insufficient in and of itself to give rise to a deprivation of liberty even if a guardian can deprive a person of the freedom to leave a particular place (a point which we note – in fact – Judge Jacobs appears not to have decided as opposed to have assumed).
It is, however, equally important to emphasise – as did Judge Jacobs – that guardianship can only work where it is accompanied by a detailed care plan which – if it amounts to a deprivation of liberty to which the person cannot consent – can be the subject of authorisation either under Schedule A1 or by way of an order under s.16(2)(a) MCA 2005.
It is, further important to emphasise that guardianship should not be used as a mechanism to determine genuine disputes about residence in the case of a person lacking the material decision-making capacity: C v Blackburn with Darwen Council  EWHC 3321 (COP) (a decision that is plainly wrong post-Cheshire West as regards the question of whether C was deprived of his liberty, but otherwise remains entirely correct).
The decision in NL makes this point all the clearer. Although the outcome of the case was that Mr L was, in fact, not considered to be deprived of his liberty, the outcome could easily have been very different had the local authority imposed the care plan and the arrangements therein. It could only have done so, as a matter of logic, had Mr L lacked the requisite capacity and the deprivation of liberty been authorised under Schedule A1 or a court order. If Mr L had been deprived of his liberty as a result of the combination of the residence requirement imposed by the guardian (which the Court of Protection could not consider) and the care plan (which the FTT could not consider), then it is far from obvious precisely how Mr L could be afforded the effective remedy to challenge that deprivation of liberty required by Article 5(4) ECHR.
Thank you to Counsel for the local authority, Parishil Patel, for clarifying certain elements of the factual matrix without which this judgment would be unclear.