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In this blog I look at the position of severely disabled people who are looked after in their own home, and are essentially not allowed to leave it, following a recent case in the Court of Protection. Are they being deprived of their liberty (freedom) in breach of article 5 of the European Convention on Human Rights (ECHR) 1950?
By Paul Rumley
Katherine, aged 52, was left severely mentally incapacitated as a result of a bleed on the brain. As at the time of this case, she was being cared for in her own home.
Unfortunately the brain damage had left Katherine trapped in the past – she would therefore wander off looking for her very young children, who by this time were all grown up. She had carers provided for her by the Local Authority, who would bring her back to the house if she wandered off. As at the time of the assessment, her mental and physical condition was deteriorating.
The question for the Court was whether such a care regime, namely 24 hour care, 7 hours per day which in essence confined Katherine to her own home was a deprivation of her liberty in breach of Article 5 of the ECHR 1950.
The case was heard in the Court of Protection, which decides issues on behalf of those people who are unable to make decisions for themselves.
After much deliberation, the Court decided that Katherine’s severe mental and physical disability meant that there was no Article 5 of the ECHR deprivation of her liberty as she was not physically and mentally able to exercise her freedom to leave her home. Furthermore, it was in Katherine’s best interests for her not to be allowed to leave the home and/or to be brought back to it if she wandered off.
The Judge was very careful to make it clear that the decision was not a case of disability discrimination – instead and looking objectively at the factual situation, if Katherine could not exercise her freedom to leave home in a meaningful way, then she could not be deprived of that freedom.
• The Judge referred on 2 occasions to money – how much it cost to provide the care regime to Katherine at home, and how much more it would cost to review her case if it was found that she was being deprived of her liberty in breach of Article 5 of the ECHR – this is important because the Courts normally shy away from the money involved in such situations, so as not to give the impression that it affected the judgement;
• The Judge also referred to the historical context of the ECHR, in terms of that having been created to prevent the abuses of the Second World War ever being repeated. The Judge said that context was important but not determinative as to how they should interpret Article 5 of the ECHR but referred to the fact that Katherine’s situation was a world away from the protection that Article 5 was originally envisaged to provide;
• The Judge referred quite a lot to a philosophical essay in the judgement – that implies that case law and legislation were not able to provide a complete answer in this case;
• The Judge referred to the fact that if it was found that Katherine was deprived of her liberty in breach of Article 5 of the ECHR, that would also be the case for hundreds or thousands of other people – sometimes referred to as the “flood gates” issue in that the Court will not make a decision which will lead to lots of other similar claims;
• This was very much a paternalistic decision, that is the Court deciding what it thought was in Katherine’s best interests – as it had to in the circumstances;
• The Judge strongly suggested that this matter should be appealed to the Supreme Court – the highest Court in England and Wales – to review this particular set of circumstances, and the issue of whether or not it does amount to depriving someone of their liberty to leave home and therefore is in breach of Article 5 of the ECHR.
This was clearly a very difficult decision for the Court to reach, for all of the interesting points referred to above. The judgement was however a very eloquent and rounded one.
On balance, this was probably the right decision in these particular circumstances, but plenty of “grey areas” remain, for example would someone with less severe disabilities still be found for it to be in their best interests to, in essence, keep them within their own home? This is an issue which will affect a huge number of people. It is clear that this matter needs to be revisited by the most senior Judges in the land – and therefore “watch this space” in terms of the Supreme Court’s decision upon this. It raises fundamental issues as how we approach severely disabled people being cared for in our communities and who decides what is in their best interests.
I am part of a very specialist team of lawyers, who regularly deal with very complex medical law issues involving severely disabled people and their families and know that issues such as the care someone requires and decisions that need to be taken in someone’s best interests, while at the same time enabling them to live their life to the full, require very careful consideration and are not clear cut, as this recent case demonstrates.