An imaginary judgment
(I am extremely grateful in the construction of the legal framework of this judgment to Lord Justice Wilson’s careful and precise analysis of the law in RE P and Q 2010 – often known as the MIG and MEG case. Almost everything in this that you think is well-written was written by Lord Justice Wilson, and everything shabby and feeble is my own)
The Court is today dealing with an application by those representing the parents of a young man named L, to the effect that his accommodation in the Minos Taurus care facility amounts to a Deprivation of Liberty under the Mental Capacity Act 2005, and that as this has been done without authority, the facility, and the Local Authority who placed him there are in breach of Article 5 of the Human Rights Act 1998 in that his liberty is being restricted without lawful excuse.
The Local Authority and the owners of Minos Taurus – Mr Ian K Harris and his dad, Ellis, contend that there is no restriction on L’s liberty and that there is an open door that L can leave by at any time and a path that can be followed to the outside world should he wish to leave at any time; and that thus L is effectively remaining in the placement of his own wish.
Matters are complicated when the Court looks, as I am strenuously urged to, beyond the face value of that statement and at the reality of the layout of the Minos Taurus care home. The care home has a front door, which is locked at all times. Staff members have a key, and visitors will be admitted, but residents are not able to freely enter or exit through that door. That much is common ground between the parties.
The rear door is indeed, unlocked at all times and any resident is free to go through it and staff would not attempt to prevent or discourage a resident from doing so.
However, emerging from that back door does not grant the resident immediate access to the public highway or the world at large, but rather to the grounds of the Minos Taurus home, which are over two acres in size. I have been shown aerial photography taken by the applicants of those grounds and it is plain that what has been constructed is an array of hedges, constructed in such a way that only one path moves from the entrance to the exit.
The hedges themselves are impenetrable, and could not be scaled without considerable difficulty, being both prickly and twelve feet in height.
In short, what lies at the rear of Minos Taurus can best be described as a labyrinth. The entrance to this labyrinth is the back door of the physical Minos Taurus building and the exit is to the public footpath that runs outside the rear of the property. There is no physical gate, or barrier to that exit.
Minos Taurus therefore contend that L, or any other resident, would simply have to walk a path between the entrance and the exit. If they walked that path, which they are free to do at any time of the day or night, nothing would prevent them from reaching the footpath and thus leaving the land owned by Minos Taurus. Thus, there is no deprivation of liberty.
I note that they contend that describing their grounds as a labyrinth is pejorative and that it is, in reality ‘a restful and soothing arrangement of hedges in a classical form’.
They are to be admired for their chutzpah in that submission, but I find that quite the simplest of this entire tangled and byzantine case to unpick. The grounds are laid out in the form of a maze (I note in passing that whilst I may, as counsel did throughout, flit between the term maze and labyrinth, that what we are dealing with here is a maze – since it has an entrance and exit and branching paths, whereas a labyrinth leads to the centre and is not intended to be difficult or puzzling to navigate).
I am satisfied that the applicant’s claim that the grounds of Minos Taurus are intentionally laid out as a maze, and that it is not a merely coincidental happenstance or an intention to create a geometrically and horticulturally pleasing arrangement which simply happened to also take the form of a maze. Nor is it a homage to Hampden Court, or the many other notable horticultural efforts that are set out in glossy photographs in Section J of the bundle. Whilst those photographs have indeed been soothing to consider and admire, they have not assisted me as Minos Taurus had hoped they might.
The grounds are laid out in the form of a maze and this has been a deliberate intention on the part of Minos Taurus.
L’s family contend, that L, being a person who lacks capacity to make decisions in his own regard, is incapable of navigating a maze or labyrinth, and that whilst theoretically, he is free to leave at any time, in reality he is imprisoned by this maze and his liberty is just as restricted as if he were blocked by a locked and barred door.
They state that it is of significance that their Freedom of Information request gleaned that :-
(a) Since the construction of the maze, no member of staff has chosen to enter by the back door rather than the front
(b) Since the construction of the maze, no resident has left the home by way of the back door.
(c) All residents who have left the home have done so by the front door, which had been unlocked for them by staff.
Turning now to the law, which one might rightly muse is almost as impenetrable as the hedge and with as many twists and turns as the construction in question. The issue whether the arrangements for L amount to a deprivation of his liberty and whether the arrangements engage Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950.
Article 5 provides: “1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law – … (e) the lawful detention … of persons of unsound mind …; … 4 Everyone who is deprived of his liberty by … detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
The practical effect of a conclusion that the arrangements for L amount to a deprivation of his liberty is to be found in the valuable right provided by paragraph 4 of Article 5. For in that event his right would be to take court proceedings for a decision in relation to the lawfulness of their detention The paragraph would impose a duty on the court itself periodically, again probably at least annually, to review the continued necessity for the arrangements which deprive him of his liberty, albeit perhaps only on paper unless requested otherwise: see Re BJ (Incapacitated Adult)  EWHC 3310 (Fam),  1 FLR 1373, at  – . The court’s review would probably again require independent representation of him.
It is not, therefore, a merely academic question, but one which goes to the heart of L’s rights. I shall not go into details of the nature of L’s problems, suffice to say that his day to day functioning is approximately that of a five year old child and that it is beyond dispute and accepted by all parties to these proceedings that he lacks capacity to make decisions for all matters relevant to these proceedings pursuant to section 2 of the Mental Capacity Act 2005. There is expert evidence, undisputed, to that effect.
L came into the Minos Taurus care home as a voluntary patient, his family having brought him there for a period of respite. They say that they had no idea that having taken him there, they did not have the power to discharge him. Although he is free to leave whenever he wishes, he is, they say, prevented from doing so by the practical barriers that have been put in place.
As indicated earlier, Minos Taurus and the Local Authority who are assisting in the funding of L’s placement there, and supporting his remaining in that placement, are of the view that L can leave the placement at any time and that there is a route or path which can be followed which is completely unimpeded to L, if he chose to follow it. Minos Taurus have indicated that if the Local Authority determined that L should leave the home by the front door, or were to cease funding the placement, they would facilitate L leaving by the front door.
The European Court of Human Rights (“the ECtHR”) has made clear that a deprivation of liberty has three elements:
(a) “the objective element of a person’s confinement to a certain limited place for a not negligible length of time”: Storck v. Germany (2005) 43 EHRR 96, at ;
(b) the “additional subjective element [that] they have not validly consented to the confinement in question”: the Storck case, also at ; and
(c) the confinement must be “imputable to the State”: the Storck case, at .
That is not disputed by any of the parties. The critical issue that is in dispute is whether, as a matter of fact, L is confined to a certain limited place, or whether he is not. I am invited by L’s family to reword the test as being whether L is confined to a certain limited place or whether he is free to come and go as he chooses, but I decline to replace the construction that has been carefully arrived at by the ECtHR in Storck with a different formulation. It is not incumbent on the State to demonstrate that L is free to come and go as he chooses, but to refute the claim that he is confined to a certain limited place for a not negligible length of time. The classic exposition of the nature of the enquiry into the objective element, on which no doubt has been cast for 30 years, is that of the ECtHR in Guzzardi v. Italy (1981) EHRR 333, at  – , as follows: “… the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question … The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance … the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion …”
These are prescient words indeed and ones that have survived the last three decades better than tastes in literature, music, art or fashion. It certainly is no easy task to determine the clear bright line that separates a restriction of liberty from a deprivation of liberty. One is reminded of the philosophical debate about a pile of stones, and one stone being removed at a time, and at what point there ceases to be a pile.
To the layperson it would seem a relatively easy task to determine whether objectively someone is deprived of their liberty. They would probably begin with asking the question “What’s stopping them from leaving?” , but there is no question no matter how simple or blindingly obvious the answer that cannot be obfuscated by the combined efforts of Parliament, the judiciary and the focussed minds of the Bar.
In relation to the objective element there are two more recent decisions of the ECtHR of great importance.
The first decision is HL v. UK (2005) 81 BMLR 131; Mr HL was an incapable 48-year-old man who was autistic, unable to speak and had a history of self-harm. For 30 years prior to 1994 he had been an inpatient in Bournewood Hospital; and for the final seven of them he had been in its Intensive Behavioural Unit. Then, in 1994, without being formally discharged, he was moved into the home of paid carers. In July 1997, following an incident of self-harm at a day-care centre, he was readmitted to the unit at the hospital and he remained there for four months, whereupon he was returned to the carers. For the first three of those months he was an informal patient, i.e. not compulsorily detained there under the Mental Health Act 1983; and such was the period during which, so the ECtHR held, he had been deprived of his liberty in breach of Article 5. Thus did the court identify “the Bournewood gap” in our legal framework for control over the deprivation of liberty in the case of an incapable person effected otherwise than pursuant to the Act of 1983; and Parliament sought to fill the gap by making insertions into the Mental Capacity Act 2005 which, by s.4A(5) and Schedule A1, set up a framework for such control in the case of a person receiving care or treatment in a hospital or a care home and which, by s.4A(1) and (3), rendered any other such deprivation lawful only if made pursuant to a court order that such was in her (or his) best interests. In its submissions in the case of HL the UK government had laid considerable emphasis on the fact that Mr HL had been compliant with his return to live in the unit and had never attempted to leave it nor expressed the wish to do so. But the court held, at , that, in that Mr HL was incapable, his compliance was not of central importance. The fact was that, irrespective of whether his ward was locked or lockable, he had not been free to leave the unit:  and . The court said, at : “the Court considers the key factor in the present case to be that the health care professionals treating and managing [Mr HL] exercised complete and effective control over his care and movements from 22 July 1997, when he presented acute behavioural problems, to 29 October 1997, when he was compulsorily detained.”
The second decision is the case of Storck cited above. A young woman aged 18 was placed by her father in a locked ward of a private psychiatric clinic and she remained there for 20 months. Very strong medication was administered to her, at times by force. On a number of occasions she attempted to flee from the clinic and was prevented from doing so by being fettered. Once she succeeded in escaping and the police forcibly returned her there. She was unable to maintain regular social contact with persons outside the clinic. The ECtHR held that all three elements of a deprivation of liberty were present and that, in respect of the objective element, the case was a fortiori that of HL.
In the case of RE P (known as MIG) and Q (known as MEG) 2010, the Court of Appeal determined that there were some important factors to be considered when determining whether there was objectively a deprivation of liberty.
1. A person’s happiness, as such, is not relevant in determining whether there has been a deprivation of liberty.
2. However, an objection is relevant, even where a person lacks capacity. If they do not want to be in a place and they object, there will be conflict. At the very least there will be arguments and they will suffer the stress of having their argument overruled. This would be a factor which could be properly taken into account when determining if a person’s liberty were being deprived, rather than restricted.
3. From the relevance of objections and also of the lack of them, it is logical to move to the relevance of medication and also of the lack of it . The administration to a person of medication, at any rate of antipsychotic drugs and other tranquilisers, is always a pointer towards the existence of the objective element: for it suppresses her liberty to express herself as she would otherwise wish. Indeed, if the administration of it is attended by force, its relevance is increased. Furthermore, in that objections may be highly relevant, medication which has the effect of suppressing them may be relevant to an equally high degree. But again, conversely, the absence of medication is a pointer in the other direction.
4. The purpose of the arrangements under scrutiny can be relevant.
5. the relative normality, or otherwise of the arrangements under scrutiny can be relevant
6. an enquiry into the residential arrangements and the degree of outside social contact. “Whether a certain situation constitutes a deprivation of liberty may depend on the living conditions of the person concerned and the degree of freedom he or she enjoyed otherwise”: “The European System for the Protection of Human Rights,” by Macdonald, Matscher and Petzold, 1993, 289.
I propose to analyse the case on the basis of those principles, to form an objective view of whether, as a preliminary issue the first of the three limbs of Starck are made out. Has there been the objective element of a person’s confinement to a certain limited place for a not negligible length of time ?
I am however, before conducting that exercise, mindful of the following authorities , and indeed that the Court of Appeal in Re P and Q determined that there was NO deprivation of liberty in that case and this body of caselaw strives to convince me that there is far more to the objective question that considering the commonsense formulation that an ordinary person would use “What’s stopping them from leaving?” , in that these cases illustrate that locked doors, tranquiliser medication and physical restraint can all, in certain circumstances be deployed to stop a person leaving somewhere without his liberty being deprived.
(I wonder, in an idle moment, whether a Judge in a civil trial to determine a tort of False Imprisonment, would wrestle for even a moment with the issue of whether someone who was drugged, locked up or sat on was being prevented from leaving, but that is by the by)
RE C (BY THE OFFICIAL SOLICITOR) v (1) BLACKBURN WITH DARWEN BOROUGH COUNCIL (2) A CARE HOME (3) BLACKBURN WITH DARWEN TEACHING CARE TRUST (2011)  EWHC 3321 (Fam) Where an individual who was living in a care home with locked doors was not considered by the High Court to be deprived of his liberty.
The Honourable Mr Justice Peter Jackson commented here, and they are sentiments which I would not only echo, but shout into the Grand Canyon via a megaphone and perhaps even go so far as to embark upon a process of chiselling these words into Mount Rushmore:-
It is a truly unhappy state of affairs that the law governing the fundamental rights and welfare of incapacitated people should be so complex. As this case shows, its intricacies challenge the understanding of professionals working in the field and are completely inaccessible to those for whose benefit the legislation has been devised, including those with a relatively high level of understanding, such as Mr C. This judgment, while keeping citation from statute, regulation, codes of practice and reported cases to the necessary minimum, still remains more focused on technical issues than I would like
I wish that my own meagre contribution to the law in this regard could add illumination, but I fear it is likely to do little other than complicate matters still further.
I am also referred to the case of CHESHIRE WEST & CHESTER COUNCIL v P (BY HIS LITIGATION FRIEND THE OFFICIAL SOLICITOR) (2011)  EWCA Civ 1257 In which the Court of Appeal determined that restrictive measures taken in relation to a man who lacked capacity did not amount to a deprivation of his liberty.
HELD: (1) After reviewing the relevant authorities, the court identified the following factors which were likely to be significant in the type of deprivation of liberty cases coming before the Court of Protection: (a) the starting point was the “concrete situation”, taking account of a range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see paras 32-33, 188, 102 of judgment); (b) deprivation of liberty had to be distinguished from restraint because restraint alone was not deprivation of liberty (paras 23, 102); (c) account had to be taken of the individual’s whole situation and context was crucial, Guzzardi v Italy (A/39) (1981) 3 E.H.R.R. 333 and Engel v Netherlands (A/22) (1979-80) 1 E.H.R.R. 647 applied, Secretary of State for the Home Department v JJ  UKHL 45,  1 A.C. 385 followed (paras 32-35, 102); (d) mere lack of capacity to consent to living arrangements could not in itself create a deprivation of liberty and the fact that a domestic setting could involve a deprivation of liberty did not mean that it often would, Surrey CC v CA  EWHC 785 (Fam),  M.H.L.R. 108 approved (paras 27-28, 41-59, 102-103); (e) it was legitimate to have regard both to the objective “reason” for a placement and treatment and also the objective “purpose”, Austin v Commissioner of Police of the Metropolis  UKHL 5,  1 A.C. 564 followed (paras 60-75, 102); (f) subjective motives or intentions had only limited relevance since an improper motive or intention might have the effect that what would otherwise not be a deprivation of liberty was, for that very reason, a deprivation whilst a good motive or intention could not render innocuous what would otherwise be a deprivation of liberty (paras 74-77, 102); (g) it was always relevant to evaluate and assess the ‘relative normality’ of the situation, Secretary of State for the Home Department v JJ and others followed (paras 78-97, 102); (h) the assessment had to take account of the particular capabilities of the person concerned since what might be a deprivation of liberty for one person may not be for another (paras 92, 97, 102); (i) in most contexts the relevant comparator was the ordinary able bodied adult but not in the kind of cases that came before the Family Division and the Court of Protection, concerning children and adults with disabilities whose lives were dictated by their own cognitive and other limitations (paras 86, 102); (j) in such cases, the comparator was an adult of similar age with the same capabilities as the adult concerned, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations. In the case of a child, the comparator was a child of the same age and development, Surrey CC v CA  EWCA Civ 190,  2 F.L.R. 583 applied (paras 86-97, 102). (2) In the instant case, the judge had not compared P’s situation with the kind of life he would have been leading as someone with his disabilities and difficulties in a normal family setting. There was nothing to show that the life he was living there was significantly different from the kind of life that anyone with those difficulties could normally expect to lead, whatever kind of setting they were living in. On the contrary, there was a strong degree of normality in his life, assessed by reference to the relevant comparator (paras 105-112). The judge’s reasoning in relation to the measures applied to P from time to time was equally problematic. The measures involved the kind of occasional restraint that anyone caring for P in any setting would have to adopt from time to time. The finger sweep was obviously intrusive but had to be looked at in context. It was little different from what any properly attentive parent would do if a young child was chewing something unpleasant or potentially harmful. It involved a degree of restraint but that was far removed from anything approaching a deprivation of liberty. P’s care plan did not involve a deprivation of his liberty (paras 113-117).
The Minos Taurus unit, and the Local Authority urge that I exercise caution before determining that the arrangements for L amount to a deprivation of his liberty. They contend that :-
1. There is an unlocked door through which L may leave at any time.
2. L’s needs are being met in the unit
3. L is not making attempts to leave through the unlocked door. Setting aside whether he could navigate the maze (about which they make no concessions) he has not attempted to step out of the physical building and into the grounds at the rear of the building.
4. L does attend social functions and some educational/play facilities outside of the unit and has a quality of life comparable to that which persisted before his admission
5. L is not on any medication
6. L has not been the subject of any restraint
7. There are no entries in any of the records of L objecting to the placement, or of wishing to leave. It is plain that he is asking for his family and making positive comments about them and his time with them.
On the evidence that has been placed before me, there is nothing to counteract these facts and I have to find that these contentions are all made out.
Set against that, I am satisfied that the purpose of the arrangements, in having a maze built in the grounds of the building and there being an open door leading into that maze is in order to provide the illusion of a person being free to leave. This illusion does not sit well with me, leaving as it does, an indelible impression of an attempt to circumvent the need to make the application to detain a person using the Mental Capacity Act, which application could be challenged.
I am also satisfied that none of the residents at Minos Taurus, who are there on a “voluntary” basis are capable of negotiating or navigating that maze successfully and that within a few short minutes of being in the maze unaccompanied they would become fearful, lost and no doubt calling for staff to help them. That is not an indication of them consenting to be in the home or wishing to remain there, but the reality of them being simply incapable of negotiating the obstacle that has been placed in their path by Mr Ian K Harris and his father, Ellis.
This, however, is the only matter that I can set against the 7 positive factors listed above to indicate that there might be a degree of deprivation of liberty rather than restriction of it. I do not feel able to imbue that matter, grave as it is, with sufficient weight to tip the scales against those 7 positive factors.
Much as this conclusion might leave a bad taste in my mouth, the construction of the maze being a clear device to circumvent suggestion that L and his fellow residents are deprived of their liberty, I am in difficulties on the authorities to reach the objective conclusion that L’s family invite me to make. Given that some of the authorities find that locked doors and physical restraint need not amount to an objective deprivation of liberty, and that those factors are not present in this case, I am driven by the authorities and an analysis of the law to find that there is no such deprivation of liberty.
However, my conclusion is that L would like to have a member of his family to visit him in the unit and to walk with him in the grounds. Should they happen to wish to wander in the maze, and should they happen to find their way out (perhaps with the benefit of the aerial photography that can be found at G42 of the Court bundle) then that might be a coincident outcome.
If the unit were to refuse to allow L to be visited by his family and to walk with them in the grounds, or to refuse to allow L to leave by the exit of the maze, should he find his way there, then I would be minded to find that a deprivation of liberty had occurred at that point. Indeed, I determine that if they were minded to do so, they should make the relevant application to give them authority to deprive L of his liberty to walk in the garden with his family.
The same would be true of any of the other residents of Minos Taurus, and I am happy for this judgment to be published and made available to the family members of all other residents of the unit.
I apologise that my solution and judgment in this case is more akin to the Gordian Knot than Ariadne’s ball of thread, but I trust that it will meet with some satisfaction in at least some of the participants of this fascinating piece of litigation.