This judgment was handed down in private but the judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the patient and members of his family must be strictly preserved.
Strand, London, WC2A 2LL
B e f o r e :
| In the matter of DE (an adult patient) And in the matter of the inherent jurisdiction of the High Court And in the matter of a claim under section 7 of the Human Rights Act 1998
|- and -
|(1) DE (by his litigation friend the Official Solicitor)
(2) SURREY COUNTY COUNCIL
Miss Jenni Richards (instructed by Mackintosh Duncan) for the first defendant
Ms Fenella Morris (instructed by Legal and Insurance Services, Surrey County Council) for the second defendant
The third defendant appeared in person
Hearing dates: 1, 8 November 2006
Crown Copyright ©
Mr Justice Munby :
"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 for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants."
Article 5(4) provides that:
"Everyone who is deprived of his liberty by arrest or 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."
Article 5(5) provides that:
"Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."
"(1) Everyone has the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
i) a declaration that DE has capacity to decide where and with whom to live;
ii) alternatively, a declaration that DE lacks such capacity and that it is in his best interests to return to live with the claimant at the matrimonial home;
iii) a declaration that SCC has "detained" DE since 4 September 2005;
iv) a declaration that SCC has acted incompatibly with DE's rights under Article 5(1) of the Convention (and therefore unlawfully contrary to section 6 of the Human Rights Act 1998) in that:
a) DE's detention has not been "in accordance with a procedure prescribed by law"; and/or
b) DE is not "of unsound mind" and his detention is not necessary;
v) a declaration that SCC has acted incompatibly with DE's and/or JE's rights under Article 8(1) of the Convention (and therefore unlawfully contrary to section 6 of the Human Rights Act 1998) in that:
a) DE's detention has not been "in accordance with the law"; and/or
b) it is not necessary in a democratic society to detain DE; and/or
c) it is not necessary in a democratic society to prevent DE from returning home to live with JE;
vi) an injunction requiring SCC to take such steps as necessary to bring DE's "unlawful" detention to an end; and
vii) a declaration that SCC's failure to make an application to the High Court for a 'best interests' declaration to sanction its treatment of DE is incompatible with DE's rights under Article 5(4) and/or Article 8(1).
i) a declaration that DE has been, and is being, unlawfully deprived of his liberty contrary to Article 5(1); and
ii) damages for breach of DE's Article 5(1) rights.
"upon [JE] and [DE] reserving their position as to whether the interim declaration satisfies the requirements of Article 5 …
It is declared in the interim by consent that:
1 [DE] lacks capacity to make decisions about where he should live.
2 It is lawful being in [DE]'s best interests to reside in accommodation arranged by [SCC] at [the Y home]."
"Has DE at any (and if so at what) time or times since 4 September 2005 been and is DE now being deprived of his liberty by SCC?"
"Although this Court will have regard to the domestic courts' related findings of fact, it does not consider itself constrained by their legal conclusions as to whether the applicant was detained or not, not least because the House of Lords considered the question from the point of view of the tort of false imprisonment rather than the Convention concept of "deprivation of liberty" in art 5(1), the criteria for assessing those domestic and Convention issues being different."
"The Court recalls that in proclaiming the 'right to liberty', paragraph 1 of Article 5 is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. As was pointed out by those appearing before the Court, the paragraph is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No. 4 which has not been ratified by Italy. In order to determine whether someone has been 'deprived of his liberty' within the meaning of Article 5, 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 Court added (at para ):
"The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance."
Considering the applicant's circumstances the Court continued (at para ):
"The Government's reasoning … is not without weight. It demonstrates very clearly the extent of the difference between the applicant's treatment on Asinara and classic detention in prison or strict arrest imposed on a serviceman. Deprivation of liberty may, however, take numerous other forms."
"According to the established case-law of the Court, Article 5(1) is not concerned with mere restrictions on liberty of movement, which are governed by Article 2 of Protocol No 4. In order to determine whether circumstances involve deprivation of liberty, the starting point must be the concrete situation of the individual concerned 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 distinction between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance."
Virtually the same formulation was adopted by the Court in Nielsen v Denmark (1988) 11 EHRR 175 at para , in HM v Switzerland (2002) 38 EHRR 314 at para , in HL v United Kingdom (2004) 40 EHRR 761 at para  and in Storck v Germany (2005) 43 EHRR 96 at para .
"The Strasbourg jurisprudence is closely focused on the facts of particular cases, and this makes it perilous to transpose the outcome of one case to another where the facts are different."
The law – the Strasbourg case-law
"The applicant was in need of medical treatment for his nervous condition and the treatment administered to him was curative, aiming at securing his recovery from his neurosis. This treatment did not involve medication, but consisted of regular talks and environmental therapy.
The restrictions on the applicant's freedom of movement and contacts with the outside world were not much different from restrictions which might be imposed on a child in an ordinary hospital: it is true that the door of the Ward, like all children's wards in the hospital, was locked, but this was to prevent the children exposing themselves to danger or running around and disturbing other patients; the applicant was allowed to leave the Ward, with permission, to go for instance to the library and he went with other children, accompanied by a member of the staff, to visit playgrounds and museums and for other recreational and educational purposes; he was also able to visit his mother and father regularly and his old school friends and, towards the end of his stay in hospital, he started going to school again; in general, conditions in the Ward were said to be 'as similar as possible to a real home'.
The duration of the applicant's treatment was five and a half months. This may appear to be a rather long time for a boy of 12 years of age, but it did not exceed the average period of therapy at the Ward and, in addition, the restrictions imposed were relaxed as treatment progressed."
i) First, that Article 5 was only designed to protect individuals against deprivations of liberty carried out by a public authority, not from the acts of private persons. In the instant case, it said, the decision as to the applicant's hospitalisation was solely that of the mother, acting in the exercise of her parental rights.
ii) Secondly, that the restrictions imposed on the applicant's freedom of movement during his stay in the child psychiatric ward could not be said to amount to a deprivation of liberty within the meaning of Article 5. Seemingly (see at para ), the Government's argument was "that there was no deprivation of liberty because the child was subject to parental authority."
"The care and upbringing of children normally and necessarily require that the parents or an only parent decide where the child must reside and also impose, or authorize others to impose, various restrictions on the child's liberty. Thus the children in a school or other educational or recreational institution must abide by certain rules which limit their freedom of movement and their liberty in other respects. Likewise a child may have to be hospitalised for medical treatment."
"The restrictions imposed on the applicant were not of a nature or degree similar to the cases of deprivation of liberty specified in paragraph (1) of Article 5. In particular, he was not detained as a person of unsound mind so as to bring the case within paragraph (1)(e). Not only was the child not mentally ill within the meaning of the 1938 Act, but the Psychiatric Ward at the Hospital was in fact not used for the treatment of patients under the 1938 Act or of patients otherwise suffering from mental illnesses of a psychotic nature. Indeed, the restrictions to which the applicant was subject were no more than the normal requirements for the care of a child of 12 years of age receiving treatment in hospital. The conditions in which the applicant stayed thus did not, in principle, differ from those obtaining in many hospital wards where children with physical disorders are treated.
Regarding the weight which should be given to the applicant's views as to his hospitalisation, the Court considers that he was still of an age at which it would be normal for a decision to be made by the parent even against the wishes of the child. There is no evidence of bad faith on the part of the mother. Hospitalisation was decided upon by her in accordance with expert medical advice. It must be possible for a child like the applicant to be admitted to hospital at the request of the holder of parental rights, a case which clearly is not covered by paragraph (1) of Article 5."
"The Court concludes that the hospitalisation of the applicant did not amount to a deprivation of liberty within the meaning of Article 5, but was a responsible exercise by his mother of her custodial rights in the interest of the child. Accordingly, Article 5 is not applicable in the case."
"we attach great importance to the fact that the committal lasted over a period of several months and involved the placing in a psychiatric ward of a twelve-year-old boy who was not mentally ill. In our view, that constituted a deprivation of liberty within the meaning of Article 5."
Two of the dissenting judges subscribed to a further joint dissenting opinion in which they said:
"The applicant's committal could not be based on any of the grounds which could have justified it under [paragraph 5(1)].
It did not constitute the normal exercise of parental authority or the normal practice of psychiatry. In fact it represented an abuse of both."
"the majority's reliance on the "comparable circumstances in Nielsen" does not, I think, provide a solid ground for their conclusion that Article 5(1) is not applicable in the present case. Like Judge Gaukur Jörundsson, I find that the circumstances of the present case differ from those in Nielsen v Denmark. The factual basis of the latter case was the placement of a 12-year-old boy in the psychiatric ward of a hospital at the request of the mother, who had sole parental rights. Such a situation cannot be compared with the placement of an adult against her will in a nursing home, which was what happened in the present case. The Court considered that the facts in Nielsen amounted to an exercise of parental rights by the mother, not a restriction on freedom of movement by the State. In so far as the Court went on to state that the restriction involved in the child's placement in a secure psychiatric ward did not amount to a deprivation of liberty, this statement (which has been subject to certain extra-judicial criticism) is linked to the particular facts and circumstances of that case and, specifically, the fact that the decision to hospitalise the child was taken by the mother in the exercise of her parental rights; Nielsen is again clearly distinguishable from the present case."
"That case turned on the specific fact that the mother had committed the applicant minor to an institution in the exercise of her parental rights, pursuant to which rights she could have removed the applicant from the hospital at any time."
That, as I read it, is an authoritative pronouncement by the Strasbourg court itself as to the true basis of the decision in Nielsen v Denmark (1988) 11 EHRR 175. Read in that way, Nielsen v Denmark (1988) 11 EHRR 175 is, in my judgment, of no assistance in a case such as the one with which I am here concerned.
"An elderly or incapacitated person may be placed or retained in a suitable institution on account of mental illness, mental disability, alcoholism, other addictions or serious neglect, if the person cannot otherwise be afforded the necessary personal care.
… The person concerned must be released as soon as the situation permits."
The basis of the applicant's placement was that she required permanent treatment in view of her leg sores and cataract, that she no longer received care from a doctor or an association, that it was not certain that she had enough to eat, that the conditions of hygiene in her unheated flat were "intolerable", and that this situation, which had already lasted for many years, would not change in the foreseeable future. She was placed in the nursing home on 20 December 1996.
"Bearing these elements in mind, in particular the fact that the [authorities] had ordered the applicant's placement in the nursing home in her own interests in order to provide her with the necessary medical care and satisfactory living conditions and standards of hygiene, and also taking into consideration the comparable circumstances in Nielsen, the Court concludes that in the circumstances of the present case the applicant's placement in the nursing home did not amount to a deprivation of liberty within the meaning of Article 5(1), but was a responsible measure taken by the competent authorities in the applicant's interests. Accordingly, Article 5(1) is not applicable in the present case."
"It is true that the applicant was not "under lock and key" within the nursing home, and that she was able to have personal contacts, to write letters and to telephone the outside world. In my opinion, however, it is clear that she was not permitted to leave the institution and go home, and that, if she did, she would have been brought back to the nursing home. Thus, I find that the present circumstances differ from those in Nielsen v. Denmark which involved a minor who was temporarily placed in a locked psychiatric ward of a State hospital, at his mother's request, for therapeutic purposes. Thus, the present applicant had been placed under guardianship, though the latter measure was eventually lifted.
In these circumstances, I consider that the applicant's placement in the nursing home amounted to a deprivation of liberty within the meaning of Article 5(1) of the Convention."
"As regards my finding that there has been a deprivation of the applicant's liberty, I adopt the reasoning of Judge Gaukur Jörundsson. But I would like to add on this subject the following: The applicant's placement in the nursing home was against her will. It was implemented by the police under an order explicitly defined by the national law itself and referred to by the national authorities as a measure of deprivation of liberty, and she was not permitted to leave the nursing home. In these circumstances, I cannot see how her situation could be regarded as anything else than a deprivation of liberty.
In Ashingdane v The United Kingdom … it was found that a person kept compulsorily in a mental hospital was protected by Article 5 even though he was in an "open" (that is to say, unlocked) ward and was permitted to leave the hospital unaccompanied during the day and over the weekend. Therefore, the fact referred to by the majority that "the applicant was not placed in the secure ward of the nursing home ... Rather, she had freedom of movement and was able to maintain social contact with the outside world" does not in any way change the reality and severity of the restrictive regime in which the applicant was placed, as described above.
Detainees in prisons and other places of detention, which amount to typical cases of deprivation of liberty for the purposes of Article 5 of the Convention, may be allowed to move freely within defined areas and have social contact with the outside world through telephone calls, correspondence and visits, for example; some may also be allowed day release. Yet, so long as they (like the applicant) are not permitted to leave the place where they are detained and go anywhere they like and at any time they want they are certainly "deprived of their liberty"."
"The majority appear to have relied heavily on "the fact that the [authorities] ordered the applicant's placement in the nursing home in her own interests in order to provide her with the necessary medical care and satisfactory living conditions and standards of hygiene" (emphasis added). Relying on that consideration and taking into account the "comparable circumstances in Nielsen", the majority concluded that "the applicant's placement in the nursing home did not amount to a deprivation of liberty within the meaning of Article 5(1), but was a responsible measure taken by the competent authorities in the applicant's interests" (emphasis added).
It is my opinion that the question whether a measure amounts to a deprivation of liberty does not depend on whether it is intended to serve or actually serves the interests of the person concerned. This is illustrated by De Wilde, Ooms and Versyp v Belgium (1971) 1 EHRR 373 and the examples of minors and persons of unsound mind requiring educational supervision, whose detention is expressly justified under the provisions of Article 5(1)(d) and (e) on the premise that their case concerns "deprivation of liberty", even though such detention may be exclusively in the detainees' interests."
"Considerable reliance was placed by the Government on HM v Switzerland, in which it was held that the placing of an elderly applicant in a foster home, to ensure necessary medical care as well as satisfactory living conditions and hygiene, did not amount to a deprivation of liberty within the meaning of Article 5 of the Convention. However, each case has to be decided on its own particular "range of factors" and, while there may be similarities between the present case and HM v Switzerland, there are also distinguishing features. In particular, it was not established that HM was legally incapable of expressing a view on her position. She had often stated that she was willing to enter the nursing home and, within weeks of being there, she had agreed to stay. This, combined with a regime entirely different to that applied to the present applicant (the foster home was an open institution which allowed freedom of movement and encouraged contact with the outside world), leads to the conclusion that the facts in HM v Switzerland were not of a "degree" or "intensity" sufficiently serious to justify the finding that she was detained (see Guzzardi v Italy at para )."
"The applicant's lack of consent must also be regarded as the decisive feature distinguishing the present case from the case of HM v Switzerland, in which it was held that the placing of an elderly person in a foster home to ensure the necessary medical care had not amounted to a deprivation of liberty. However, the applicant in that case, who had been legally capable of expressing a view, had been undecided as to whether or not she wanted to stay in the nursing home. The clinic could then draw the conclusion that she did not object."
This, as it seems to me, is an authoritative pronouncement by the Strasbourg court as to the true basis of the decision in HM v Switzerland (2002) 38 EHRR 314. And read in this way, HM v Switzerland (2002) 38 EHRR 314 is of very little assistance in the present case, where DE seemingly lacks capacity to consent and in any event, as we shall see, has throughout vigorously objected to his stay in both the X home and the Y home.
"It is unnecessary to attempt a comprehensive definition of detention. In my view, this case falls on the wrong side of any reasonable line that can be drawn between what is or what is not imprisonment or detention. The critical facts are as follows. (1) When on 22 July 1979 at the day centre L became agitated and started injuring himself, he was sedated and then physically supported and taken to the hospital. Even before sedation he was unable to express dissent to his removal to hospital. (2) Health care professionals exercised effective power over him. If L had physically resisted, the psychiatrist would immediately have taken steps to ensure his compulsory admission. (3) In hospital staff regularly sedated him. That ensured that he remained tractable. This contrasts with the position when he was with carers: they seldom resorted to medication and then only in minimal doses. (4) The psychiatrist vetoed visits by the carers to L. She did so, as she explained to the carers, in order to ensure that L did not try to leave with them. The psychiatrist told the carers that L would be released only when she, and other health care professionals, deemed it appropriate. (5) While L was not in a locked ward, nurses closely monitored his reactions. Nurses were instructed to keep him under continuous observation and did so.
Counsel … argued that L was in truth always free not to go to the hospital and subsequently to leave the hospital. This argument stretches credulity to breaking point. The truth is that for entirely bona fide reasons, conceived in the best interests of L, any possible resistance by him was overcome by sedation, by taking him to hospital, and by close supervision of him in hospital. And, if L had shown any sign of wanting to leave, he would have been firmly discouraged by staff and, if necessary, physically prevented from doing so. The suggestion that L was free to go is a fairy tale.
At one stage counsel … suggested that L was not detained because he lacked the necessary will, or more precisely the capacity to grant or refuse consent. That argument was misconceived. After all, an unconscious or drugged person can be detained: see Meering v Grahame-White Aviation Co Ltd (1919) 122 LT 44, 53-54, per Atkin LJ (dictum approved in Murray v. Ministry of Defence  1 WLR 692, 701-702, per Lord Griffiths). In my view L was detained because the health care professionals intentionally assumed control over him to such a degree as to amount to complete deprivation of his liberty."
"maintained that the Convention notion of detention was more flexible than that of the House of Lords and included notions of psychological detention, potential detention (perceived threat of restraint) and the removal of the means of escape. He also agreed that the Ashingdane test had to be applied in order to determine in a specific case whether a person had been detained so that the type, duration, effects and manner of implementation of the measure in question had to be examined."
"considerable emphasis was placed by the domestic courts, and by the Government, on the fact that the applicant was compliant and never attempted, or expressed the wish, to leave. The majority of the House of Lords specifically distinguished actual restraint of a person (which would amount to false imprisonment) and restraint which was conditional upon his seeking to leave (which would not constitute false imprisonment). The Court does not consider such a distinction to be of central importance under the Convention. Nor, for the same reason, can the Court accept as determinative the fact relied on by the Government that the regime applied to the applicant (as a compliant incapacitated patient) did not materially differ from that applied to a person who had the capacity to consent to hospital treatment, neither objecting to their admission to hospital. The Court reiterates that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention (see De Wilde, Ooms and Versyp v Belgium (1971) 1 EHRR 373 at paras -), especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action."
" Turning therefore to the concrete situation, as required by Ashingdane, the Court considers the key factor in the present case to be that the health care professionals treating and managing the applicant 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.
More particularly, the applicant had been living with his carers for over three years. On 22 July 1997, following a further incident of violent behaviour and self-harm at his day-care centre, the applicant was sedated before being brought to the hospital and subsequently to the IBU, in the latter case supported by two persons. His responsible medical officer (Dr M) indicated clearly that, had the applicant resisted admission or subsequently tried to leave, she would have prevented him from doing so and would have considered his involuntarily committal under section 3 of the 1983 Act. Indeed, as soon as the Court of Appeal indicated that his appeal would be allowed, he was compulsorily detained under the 1983 Act. The correspondence between the applicant's carers and Dr M reflects both the carers' wish to have the applicant immediately released to their care and, equally, the clear intention of Dr M and the other relevant health care professionals to exercise strict control over his assessment, treatment, contacts and, notably, movement and residence; the applicant would only be released from the hospital to the care of Mr and Mrs E as and when those professionals considered it appropriate. While the Government suggested that "there was some evidence" that the applicant had not been denied access to his carers, it is clear from the above-noted correspondence that the applicant's contact with his carers was directed and controlled by the hospital, his carers not visiting him after his admission until 2 November 1997.
Accordingly, the concrete situation was that the applicant was under continuous supervision and control and was not free to leave. Any suggestion to the contrary is, in the Court's view, fairly described by Lord Steyn as "stretching credulity to breaking point" and as a "fairy tale".
 The Court would therefore agree with the applicant that it is not determinative whether the ward was "locked" or "lockable" (the evidence before the House of Lords and the Commissioner appearing to differ on this point). In this regard, it notes that the applicant in Ashingdane was considered to have been "detained" for the purposes of Article 5(1)(e) even during a period when he was in an open ward with regular unescorted access to the unsecured hospital grounds and the possibility of unescorted leave outside the hospital."
That, it will be recalled, was the very point made by Judge Loucaides in his dissenting opinion in HM v Switzerland.
" The applicant maintained that she had been detained against her will in Dr Heines's clinic. Referring to the findings of the Bremen Regional Court, she stressed that she had objected to her confinement in that clinic, where she had been placed in a locked ward and had been unable to contact others.
 The Government contested this view. They submitted that the applicant had not been deprived of her liberty, as she had consented to her stay in Dr Heines's clinic. Otherwise, the applicant would certainly not have returned voluntarily to that clinic in 1981."
"Having regard to the factual situation of the applicant in the clinic in Bremen, the Court notes that it is undisputed that the applicant was placed in a locked ward at that clinic. She was under the continuous supervision and control of the clinic personnel and was not free to leave the clinic during her entire stay there of some 20 months. When the applicant attempted to flee it was necessary to shackle her in order to secure her stay in the clinic. When she once succeeded in escaping, she had to be brought back by the police. She was also unable to maintain regular social contact with the outside world. Objectively, she must therefore be considered to have been deprived of her liberty."
" However, the notion of deprivation of liberty within the meaning of Article 5(1) does not only comprise the objective element of a person's confinement in a particular restricted space for a not negligible length of time. A person can only be considered to have been deprived of his or her liberty if, as an additional subjective element, he or she has not validly consented to the confinement in question. The Court notes that in the present case, it is disputed between the parties whether the applicant had consented to her stay in the clinic.
 Having regard to the national courts' related findings of fact and to the factors which are undisputed between the parties, the Court observes that the applicant had attained the age of majority at the time of her admission to the clinic and had not been placed under guardianship. Therefore, she was considered to have the capacity to consent or object to her admission and treatment in hospital. It is undisputed that she did not sign the clinic's admission form prepared on the day of her arrival. It is true that she came to the clinic herself, accompanied by her father. However, the right to liberty is too important in a democratic society for a person to lose the benefit of the Convention protection for the single reason that he may have given himself up to be taken into detention.
 Having regard to the continuation of the applicant's stay in the clinic, the Court considers the key factor in the present case to be that – as is uncontested – the applicant tried on several occasions to flee from the clinic. She had to be shackled in order to prevent her from absconding and had to be brought back to the clinic by the police when she managed to escape on one occasion. Under these circumstances, the Court is unable to discern any factual basis for the assumption that the applicant – presuming that she had the capacity to consent – agreed to her continued stay in the clinic. In the alternative, assuming that the applicant was no longer capable of consenting following her treatment with strong medication, she cannot, in any event, be considered to have validly agreed to her stay in the clinic."
"Indeed, a comparison of the facts of this case with those in HL v the United Kingdom cannot but confirm this finding. That case concerned the confinement of an individual who was of the requisite age but lacked the capacity to consent in a psychiatric institution which he had never attempted to leave; the Court found that there had been a deprivation of liberty. In the present case, a fortiori, it must be concluded that there was a deprivation of liberty. The applicant's lack of consent must also be regarded as the decisive feature distinguishing the present case from the case of HM v Switzerland, in which it was held that the placing of an elderly person in a foster home to ensure the necessary medical care had not amounted to a deprivation of liberty. However, the applicant in that case, who had been legally capable of expressing a view, had been undecided as to whether or not she wanted to stay in the nursing home. The clinic could then draw the conclusion that she did not object."
"(1) [PH] continue to take and receive medication as prescribed.
(2) [PH] accept and comply with regular supervision by a consultant psychiatrist and social supervisor.
(3) [PH] reside at suitable specialist accommodation which provides 24 hour trained nursing care and daytime trained psychiatric nursing care and appropriate security.
(4) [PH] shall not leave the accommodation without an escort."
The question then arose as to whether the Tribunal had power to impose those conditions, the argument being (see para ) that the conditions imposed by the Tribunal, in particular conditions 3 and 4, were so restrictive as to deprive PH of his liberty, with the result that he would continue to be detained, albeit in a situation of lower security. (It was common ground that the Tribunal only has the power to discharge a patient from detention and to impose conditions upon discharge. It has no power to direct the transfer of a patient from one detaining institution to another. Therefore, it was said, the Tribunal had acted ultra vires.)
"In her statement, Miss Sullivan emphasises that one of the major factors underpinning the Tribunal's approach to the conditions was their awareness of PH's need for assistance and care in respect of his physical needs. She states that:
"in view of his long incarceration, [PH] would require (initially at least) a significant amount of support in terms of his interaction with the public and with the outside world."
The reference in condition 3 to "appropriate security" was not intended to suggest that he needed to be in any kind of locked facility, but that there would be a degree of supervision in place for the benefit of the residents, such as that which obtains for residents with problems such as dementia who would not be best placed to safeguard their own welfare. As for the requirement that he be escorted when outside the home, this, according to the witness statement, was imposed so as to facilitate rather than inhibit his freedom. The Tribunal was aware that he had not lived in the outside world for many years and there were concerns that he would become disorientated or would find it difficult to cope with such things as traffic and the value of money, especially since decimalisation."
"I cannot accept that conditions 3 and 4 inevitably mean that this man would be in a regime so restrictive that he would be deprived of his liberty. Condition 3 is sufficiently broadly phrased as to allow for measures which would fall short of such a deprivation, and both it (where it deals with security) and condition 4 have as their purpose the protection of PH himself and would therefore be in his interests. I should add that there is some evidence to indicate that, in at least one care home, the staffing arrangements would be such as to enable PH to go out with an escort whenever he chose to do so. On this principal issue, therefore, I conclude that the conditions would not involve his transfer from one state of detention to another state of detention. They are therefore not ultra vires."
" There is little dispute about the principles established in the Strasbourg jurisprudence as applicable to the interpretation of Article 5(1). First, a basic distinction is to be drawn between mere restrictions on liberty of movement and the deprivation of liberty. The former are governed by Article 2 of Protocol no. 4 and do not amount to a breach of Article 5. This has been repeatedly spelt out by the European Court of Human Rights in cases such as Guzzardi v Italy (1980) 3 EHRR 333, Ashingdane v United Kingdom (1985) 7 EHRR 528 and HM v Switzerland (2002) 38 EHRR 314.
 Secondly, the distinction is one merely of degree or intensity of restrictions, not of nature or substance. Thirdly, the court must start with the concrete or actual situation of the individual concerned and take account of a range of criteria, such as the type, duration, effects and manner of implementation of the measure in question. Fourthly, account must be taken of the cumulative effect of the various restrictions. All these principles flow from the cases cited above.
 Fifthly, the purpose of any measures of restriction is a relevant consideration. If the measures are taken principally in the interests of the individual who is being restricted, they may well be regarded as not amounting to a deprivation of liberty and so no breach of Article 5(1) would arise. This principle can be seen in two Strasbourg decisions. In Nielsen v Denmark (1988) 11 EHRR 175 a child of about 12 was placed in a hospital psychiatric ward for children as a result of a decision by his mother, based upon medical advice. He claimed that there had been a breach of his Article 5 rights, but the European Court of Human Rights found that the objective of his hospitalisation was the protection of his health. The restrictions imposed were not in principle different from those obtaining in many hospital wards where children with physical disorders were treated. It was concluded that this regime did not amount to a deprivation of liberty within the meaning of Article 5 but was:
"a responsible exercise by his mother of her custodial rights in the interests of the child" – para 73.
 The second decision illustrating this principle is perhaps of greater relevance to the present appeal. In HM v Switzerland the applicant was a woman who at the age of 84 had been placed compulsorily in a foster home. The Court found that she had been placed there by the Swiss authorities in her own interests in order to provide her with necessary medical care and satisfactory living conditions and hygiene. In those circumstances the Court concluded, citing the Nielsen case, that her placement did not amount to a deprivation of liberty within Article 5(1), but was a responsible measure taken by the competent authorities in the applicant's interests. Therefore, there was no violation of Article 5(1)."
The law – SCC's submissions
The law – the claimant's submissions
"Any detention of a mentally ill person for treatment may be regarded as in his best interests, but that cannot prevent such detention being a deprivation of liberty within the meaning of Article 5."
The law – discussion
i) There are three elements relevant to the question of whether in the case of an adult there has been a 'deprivation' of liberty engaging the State's obligation under Article 5(1) (different considerations may apply in the case of a child where a parent or other person with parental authority has, in the proper exercise of that authority, authorised the child's placement and thereby given a substituted consent):
a) an objective element of a person's confinement in a particular restricted space for a not negligible length of time (Storck v Germany (2005) 43 EHRR 96 at para );
b) a subjective element, namely that the person has not validly consented to the confinement in question (Storck v Germany (2005) 43 EHRR 96 at para );
c) the deprivation of liberty must be imputable to the State (Storck v Germany (2005) 43 EHRR 96 at para ).
I need say no more about the third of these three matters for it is common ground that both the X home and the Y home are managed by SCC, a public authority.
ii) As regards the objective element:
a) The starting point must be the concrete situation of the individual concerned 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 distinction between a deprivation of and a restriction upon liberty is merely one of degree or intensity and not one of nature or substance (Guzzardi v Italy (1980) 3 EHRR 333 at para , Nielsen v Denmark (1988) 11 EHRR 175 at para , HM v Switzerland (2002) 38 EHRR 314 at para , HL v United Kingdom (2004) 40 EHRR 761 at para  and Storck v Germany (2005) 43 EHRR 96 at para ).
b) In the type of case with which I am here concerned, the key factor is whether the person is, or is not, free to leave (HL v United Kingdom (2004) 40 EHRR 761 at para ). This may be tested by determining whether those treating and managing the person exercise complete and effective control over the person's care and movements (HL v United Kingdom (2004) 40 EHRR 761 at para ).
c) Whether the person is in a ward which is 'locked' or 'lockable' is relevant but not determinative (HL v United Kingdom (2004) 40 EHRR 761 at para ).
iii) As regards the subjective element:
a) A person may give a valid consent to their confinement only if they have capacity to do so (Storck v Germany (2005) 43 EHRR 96 at paras  and ).
b) Where a person has capacity, consent to their confinement may be inferred from the fact that the person does not object (HL v United Kingdom (2004) 40 EHRR 761 at para  and Storck v Germany (2005) 43 EHRR 96 at para  explaining HM v Switzerland (2002) 38 EHRR 314 at para ).
c) No such conclusion may be drawn in the case of a patient lacking capacity to consent (HL v United Kingdom (2004) 40 EHRR 761 at para ).
d) Express refusal of consent by a person who has capacity will be determinative of this aspect of 'deprivation of liberty' (Storck v Germany (2005) 43 EHRR 96 at para ).
e) The fact that the person may have given himself up to be taken into detention does not mean that he has consented to his detention, whether he has capacity (Storck v Germany (2005) 43 EHRR 96 at para ) or not (HL v United Kingdom (2004) 40 EHRR 761 at para ). The right to liberty is too important in a democratic society for a person to lose the benefit of the Convention protection for the single reason that he may have given himself up to be taken into detention.
"19-30hrs. PC Black rang to inform [JE] had put her husband out on the street. Following a report from a neighbour he attended home address to find [DE] who is 75 & blind, wandering down the road. [JE] told him she is not getting help from the Social Services & has thrown him out. This having happened about half an hour ago, & [DE] not having eaten all day. PC had taken him to PS for a meal. [JE] is refusing to open the door & he does not have keys. He is dressed only in pyjama bottoms & shirt with slippers. No-one locally available to take him in. Following discussion with Homecare RRT rang [JE]. She spoke almost incessantly & very critical of Social Services & [JE]'s family. She said she could no longer afford to keep him in Fags, food & pay his bills. Said [DE] should ring his family in Devon, for which she had 4 tel. no's and tell them to Fuck off out of his life for good & to unfreeze his money. She said this should happen at the police station, where it should be recorded. Said not prepared to have him home till that happened. She was very critical of services being provided & of some services not being provided at all. Referred to [DE] needing 24 hr care but she only got 2 hrs help a day during week & 1 hour at W/E's. Said carer had not brought shopping as requested yesterday & did not turn up today at all. Consequently neither of them had eaten today. Following further discussions with RRT to confirm attendance of [carer] tomorrow spoke again to [JE] but she was adamant she would not let her husband home till her demands met that he contact his family. Subsequently in liaison with police & [DE] emergency placement arranged for him at [the X home] & escorted there by police. Message left for daughter … but no reply."
"[DE] is of course free to leave his room unaccompanied at any time he wishes. Due to his visual and cognitive impairments, he does not feel safe doing this. He has unfettered access to the communal garden, the dining room, the lounge area and any other resident's room. He is able to use the telephone when he wants. It is situated in the front hall. He can also use the telephone in my office when it is busy. However, the reality is that [DE] is unable, due to his needs, to remember a number and dial it himself. He tends not to ask to make phone calls. Instead staff prompt him to make phone calls for example when his wife is in hospital. He is contacted regularly by both his daughter and his wife.
[The Y home] has a key pad entry system, so service users would need to be able to use the key pad to open the doors to get out into the local areas. If service users wish to go out generally they ask the staff and we enter the code. This system was installed not to stop service users from leaving, but following an incident in another Surrey home where people were able to enter and exit the building without staff knowledge. [JE] was pleased when this system was installed as she voiced concerns previously that people were free to enter the building as they liked. This system was only installed in or around February , prior to this service users were free to enter or exit the building without asking/informing staff."
"[DE] never tried to leave [the Y home] prior to February 2006, and since the key pad system has been installed he has never asked staff to open the door for him to enable him to leave [the Y home].
[DE] has not in fact expressed any wish to leave the home for any reason other than to live with [JE]. [DE] has however been taken out by staff for short walks into the community. These trips arise following prompting and encouragement by the staff. [DE] only sometimes responds positively to these suggestions. Due to his high level of dependency it would be inappropriate for [DE] to go for walks on his own. [DE] himself has never suggested that he might want to go anywhere unaccompanied.
… [DE] does make statements that he wants to be with [JE] generally these follow visits from his wife, or other visiting professionals. On occasions [DE] does say to the Night Staff that he wants to be with [JE]. All these are recorded in his care notes …
[DE] also states that he wants to go home to live with [JE]. When this happens, staff endeavour to reassure [DE] that [JE] is trying to do that. He has never requested to go immediately with [JE]. The team do not get into any detailed discussions with [DE] about this. They listen, support and reassure. As a regular daily occurrence [DE] does not request to be taken home to [JE]."
"[DE] continually requested to go home with [JE]. I have informed him he cannot leave, neither can [JE] take him home" (14 November 2005). "[DE] stated to [JE] that "his life isn't worth living if he can't be with [JE]" … [DE] has been say [sic] he's ready and well enough to return home with his wife" (15 November 2005). "[DE] constantly reassuring his wife he wanted only her in his life" (16 November 2005). "[DE] kept asking [JE] if "he was ready to go home" and saying his place was with her" (17 November 2005). "[DE] … mentioned about "being held here … against his will"" (18 November 2005). "[DE and JE] were talking about [DE] being a prisoner here" (20 November 2005). "[DE] stated "You are holding me against my civil rights, all I want to do is be with my wife"… he still insists that he wants to go home: no man should put asunder" (21 November 2005). "[DE] … still insists he wants to go home" (23 November 2005). "He was telling the advocate come and get me I want out of here" (24 November 2005). "(In the course of a telephone conversation with JE) "I'm coming home … I am bloody coming home"" (26 November 2005). "(In the course of a telephone conversation with JE) "It's my human right to be with my wife"" (1 December 2005). "[DE] kept on saying he wanted to go home and meet his wife" (7 December 2005). "[DE] told me that he wanted to go home and to be with his wife as this was his human right" (9 December 2005). "[DE] told me he wanted to home to back [sic] to stay with his wife" (13 December 2005). "Still wishing to return home to wife" (24 January 2006). "[DE] … saying that "he was a prisoner" and that he wanted "to go home to [JE]"" (10 February 2006). "[JE] asked when he could go back home to [JE]; chatted about wanting to go home to get on with his life" (14 February 2006). "[DE] seems quite concerned about wanting to [go] home and be with [JE]" (21 March 2006). "[DE] rather concerned about [JE] his wife and wanting to go home to her" (22 March 2006). "[DE] told me he just wanted to go home with [JE]. He told me he is being kept here against his will, that he is here under some sort of "section". Reassured him. [DE] … seemed very unsettled and cross about the fact he could not "go home to [JE]"" (28 March 2006). "Said he hopes to go home to [JE] soon" (2 May 2006). "[DE] has been asking about his wife [JE] and when he will be going back home" (9 May 2006). "[DE] continuing to talk about going home to look after [JE]" (10 May 2006). "[DE] has been asking constantly about his wife and where he is. Wanting to go home" (7 June 2006). "He has asked a lot about his wife" (12 June 2006). "He keeps asking of his wife" (1 July 2006). "[DE] has just told me that he wants to quit smoking. He said he believes "it will help me to get home". I explained "[I] could not guarantee that he goes home. Only the courts could decide that"" (7 July 2006). "Asking after his wife frequently" (9 August 2006).
i) On 5 September 2005, Mr Peter Wickwar, a solicitor who had previously acted for DE in June 2005 in relation to a will, was telephoned by JE. He then telephoned the X home and spoke to DE, who told him, as he recorded in a contemporaneous attendance note, that he was "alright" but "wanted to go home to [JE]."
ii) On 6 September 2005 DE was seen by Dr S M N Zaidi, a Consultant Psychiatrist. In a letter he wrote the next day, Dr Zaidi recorded that the first thing DE had said to him was "I want to go to [JE]." In the same letter Dr Zaidi commented that DE's "strong wish" to be with his wife had to be taken seriously. SCC's case notes record that when "escorted" back to the X home after meeting Dr Zaidi, DE "kept saying that he just wanted to go home" though he indicated that he was "prepared to stay at [the X home] as long as he had made it clear that he wants to go home eventually".
iii) On 13 January 2006, DE was seen by Mr Tim Hockin, the advocate acting for both DE and JE. In a letter he wrote on 20 January 2006 to JE's solicitor, Ms Sophy Miles, Mr Hockin said:
"I found [DE] to be quite coherent, but he was obviously greatly distressed at his detention in this residential establishment away from their marital home.
[DE]'s comments are in direct response to my non–directive questions about how he feels and what he wishes to happen … They are as follows:
I wish to go home. I am blind, not barmy. I want home to [JE]. I pray for [JE] and I to be happy. I want my civil rights, being in here is against my civil rights and liberty. I feel like a prisoner. I am lost and lonely. If I could see I would get out of here. More than anything else I want to be with [JE], she is my wife. There is no way this should be happening, this is not nazi germany …"
iv) Also on 13 January 2006, and again on 18 April 2006, DE was seen by another Consultant Psychiatrist, Dr Phil Hall. In a letter dated 3 May 2006, Dr Hall recorded DE as having "clearly and consistently, over an extended period of time, been expressing a wish to return home. In fact this is a major theme he spontaneously raised in the two discussions I have had with him."
v) A care plan dated 1 February 2006 records DE's comments as follows: "I get fed. I am treated kindly and all is fine but I would like to go home." SCC's case notes record a conversation with DE the same day "who was insisting he should return home".
vi) On 16 February 2006 SCC completed a community care assessment of DE. DE was recorded as saying that he was being treated kindly. "However he says "he still wants to go to [JE]'s house to live"."
vii) On 30 August 2006 DE was interviewed by Ms Nicola Mackintosh, the solicitor instructed by the Official Solicitor. Her detailed attendance note records DE as saying repeatedly that he wanted to live with JE, that he wanted to be home with JE, that his life is with JE, that it did not matter to him where he was living so long as it was with JE. "I only want to be with [JE] … Have I made myself clear? I want to be with [JE]."
viii) On 14 September 2006 DE was interviewed by another Consultant Psychiatrist, Dr Peter Jefferys. In his report dated 27 September 2006 Dr Jefferys records that DE's first statement to him was "I just want to be home with [JE]." Asked about the pluses and minuses of living at the Y home, DE responded "I am glad of the care and the food and everything because I need help. But I want to go home to [JE]." At the end of the interview DE said "I want to go home to [JE] … It is my human and legal right to be with my wife. I swore a vow – "let no man put asunder" and that should mean what it says." Dr Jefferys also records staff at the Y home telling him that DE "consistently says he wishes to be with his wife (JE) when discussing his wishes about his future care." Dr Jefferys expressed the view in his report that DE's stated wish to be with JE "appears to be deeply held and consistent."
ix) On 15 September 2006 DE was seen again by Mr Hockin. In a letter to Ms Mackintosh dated 21 September 2006, Mr Hockin records that DE "was again adamant about his own wish to return home to live with his wife."
x) On 12 October 2006 DE was interviewed by Mr Stewart Sinclair, an expert witness in social work who has great expertise in cases such as this. In his report dated 30 October 2006 he records how, asked how he was feeling, DE replied "I feel fine here actually … I am fine but I want to go home to JE, that is what I want, I want to be with JE … as I say it is fine here; I chat away, and I live from one meal to the next and I sleep and I go to the toilet, but I want to be with JE."
i) On 5 September 2005, as I have said, Mr Wickwar, telephoned the X home. He spoke to a member of the staff. She told him, as he recorded in a contemporaneous attendance note, that "[the X home] was instructed not to allow access to [DE] even by his wife."
ii) SCC's case notes record on 8 September 2005 a decision "that we cannot prevent [JE] from seeing [DE], and she cannot physically be prevented from removing him … if [JE] arrives in a taxi to remove [DE], they" – that is, the X home – "will not try to detain him but will inform us" – that is, SCC.
iii) The minutes of an adult protection case conference on 28 September 2005 record that "currently, on the advise of [the police], [JE] is not being allowed to speak to [DE] because she has been phoning him up and shouting at him which has left him agitated." The minutes also record the advice given by Akidi Ocan of SCC's legal services. It included the following:
"Common Law Doctrine of Necessity: This could be used to keep [DE] at [the X home] and would allow time to be taken to plan decisions but as time goes on a decision will need to be made of how specific authority is going to be obtained to make the placement.
Akidi further advised that if [JE] turns up at [the X home] to take [DE] and he wants to go, only a Common Law Doctrine of Necessity could be used to prevent this and plans need to be made as to what to do if [JE]'s visits are causing [DE] distress.
… In the longer term, [JE] and [DE] have the right to see each other but the visits will need to be monitored to see what affect her visits have on him and if it causes him any distress."
Under the heading "Actions" the minutes record that, pending what was described as "a thorough risk assessment", "in the meantime, the Common Law Doctrine of Necessity will be used to maintain [DE]'s placement at [the X home]." This followed advice from clinicians that DE lacked capacity, following which, as Ms Morris put it in her skeleton argument, "it was decided to accommodate him at [the X home] under the doctrine of necessity."
iv) SCC's understanding of that advice is set out in a case note recording a meeting with the X home later the same day (28 September 2005):
"In adult protection conference Akidi advised that if LA decision is that [DE] should remain in residential care, on basis of common law doctrine of necessity we could restrict [JE]'s access of [DE] and could prevent her from taking [DE] out of [the X home] while legal issue resolved.
Plan agreed with [the X home]:
1 [JE] will not be allowed to visit [DE] or to take him from [the X home].
2 OK for [JE] to speak to [DE] on phone if when she rings he is not abusive … "
v) On 1 October 2005 DE was taken to hospital following a suspected stroke. SCC's case notes record that the social worker was to contact the hospital "and explain the situation, we could not stop his wife visiting [DE] but she was not to remove him from the hospital."
vi) A chronology of incidents and events prepared by SCC, containing information apparently taken from DE's personal files, records that on 8 October 2005, JE was "dissuaded from taking [DE] to the pub." According to Ms Hills, in her witness statement, JE was "persuaded" not to take DE out.
vii) In a letter written on behalf of SCC by Ms Anne Wright, a senior care manager, to JE on 4 November 2005, JE was told that SCC was making a guardianship application under section 7 of the Mental Health Act 1983 and that DE would be transferring from the X home to the Y home. The letter went on:
"We are well aware that it is important for you and for [DE] that you visit him regularly, but we must ask you not to attempt to remove him from [the X home] or [the Y home] while the Guardianship Application is being made." – In the event the application was not pursued after JE, DE's nearest relative, refused her consent on 1 December 2005. – "If you should attempt to do this it would be necessary to call the police."
A copy of this letter was provided to the X home. According to her witness statement, when DE was admitted to Y on 14 November 2005, Ms Soper reiterated to JE what the letter had said. (For Ms Soper's contemporaneous note in the Y home care notes see the entry for 14 November 2005 quoted in paragraph  above.)
viii) The same day as she sent the letter (4 November 2005) Ms Wright circulated a memorandum to SCC staff which included the following:
"The plan is for [DE] to move to [the Y home] on 14 November. It is important to inform [JE] about this, and, at the same time, to ensure that she is aware that she must not try to move him from Residential Care. Recently she has been talking about doing this … If [JE] attempts to remove [DE] the police must be called. He is at [the X home] under the Common Law Doctrine of Necessity (emphasis in original)."
A copy of this note was also supplied to the X home.
ix) A care plan dated 11 November 2005 records that "[JE] will be asked not to remove [DE] from [the Y home] while an application for Guardianship is being made."
x) On 2 December 2005 SCC wrote to JE's Member of Parliament:
"The team will be looking at supporting [JE] to visit her husband, but there are no plans for him to return home. There are no restrictions on [JE] visiting her husband, but police assistance would be sought if she tries to remove him."
xi) SCC's case note dated 8 December 2005 records a conversation the day before (7 December 2005) with Mr Hockin telling him that "it will not be possible for [DE] to leave [the Y home], all the history of contact with [JE] suggests that she would not allow him to return."
i) The Y home's care notes on 7 December 2005 contain a lengthy account of the incident. They record:
"Advice sought from Care Manager. Advised to contact Police + for [JE] to be removed due to [DE]'s distress. Managed to resolve this situation and [JE] left … without the necessity to contact the Police."
ii) SCC's case notes on 8 December 2005 record that:
"[JE] requested to take [DE] out to the pub. It seems likely that she had decided to remove him. Therefore request refused … Lisa advised she should call the police if necessary. Lisa managed to persuade [JE] to leave."
iii) The minutes of an inter-agency planning meeting held on 14 December 2005 (see below) record Ms Soper as reporting that she had "refused" JE's request to take DE out as it was too cold and too late in the afternoon.
"I suggested to [JE] that there were few places in [town] open at that time of day and would it not be better to take him out earlier in the day. I also suggested that it may be an option to have a member of the care team to support her when taking [DE] out due to his poor mobility. [JE] began shouting and saying that I was refusing to let her take him out. I explained that I wasn't I was just trying to ensure that [DE] and herself were supported safely in outings. [JE] became angry and stated that I was holding him a prisoner. I explained I wasn't and that she was free to take him out but I felt that it was in his best interests and hers that a carer supported them. During this discussion, [DE] became distressed.
I was aware at the time that I could not have prevented [JE] from taking [DE] out of [the Y home]. I strongly discouraged her from doing so, and eventually persuaded her that it was not a good idea."
i) On 14 December 2005 there was an inter-agency planning meeting which, according to the minutes, had been called in response to JE's behaviour and the difficulties it was causing – this appears to have been a reference to the incident on 7 December 2005. An approved social worker is recorded as advising that "[the Y home] should not attempt to restrain [DE], but … if [JE] removes him the police and the involved Approved Social Worker should be informed so that we are able to apply for his return."
ii) In the run-up to Christmas 2005, Mr Hockin was involved in discussions with SCC about the possibility of DE going home for Christmas. This culminated in a conversation between Mr Hockin and Ms Wright on 23 December 2005. According to Mr Hockin's contemporaneous note, SCC was prepared to fund a taxi to take JE to the Y home on both Christmas Day and Boxing Day so she could spend each day from 11am to 5pm with DE. In a witness statement, which he reiterated before me in the witness box, Mr Hockin elaborated. Ms Wright told him "emphatically" that DE could not go home for Christmas. When asked to reconsider she would not. He added: "During the course of this conversation it was absolutely clear that Ms Wright considered that [SCC] had complete control over the decision as to where [DE] should stay over Christmas."
iii) A care plan dated 19 February 2006 contains the following:
"[DE] is staying at [the Y home] under the Common Law doctrine of necessity … Sometimes, after speaking with his wife, he will say that he wants to go to [his home address]. Staff need to be very patient and supportive to [DE] at these times and offer him reassurance."
iv) On 2 March 2006 there was a meeting attended by, amongst others, SCC's legal adviser, Akidi Ocan, and JE's solicitor, Sophy Miles. The minutes record the following interchange:
"SM You don't have authority to keep him where he is.
AO We can't allow him to go home today because of the risk
SM … We say the current position is not lawful."
v) On 23 May 2006 an internal SCC e-mail recorded the writer's view as being that because DE "does not have capacity to determine where he should live … this does not mean that a supervised visit or even living at home would be unsuitable or not in his interests. It does not mean that his views should not be given due weight but does mean that his wishes can be overridden in his best interests."
vi) A position statement prepared by SCC's counsel on 18 August 2006 for the hearing on 7 September 2006 summarised SCC's stance in the following words:
"A decision was taken in the inter-agency planning meeting of 14 December 2005 that the police should be called if [JE] attempted to take [DE] out of the home. This was considered necessary to protect [DE]'s safety … There was a real concern that [JE] would not return [DE] to [the Y home] …
There has now been a more settled period … Accordingly [SCC] are no longer opposed to [JE] (if she were settled and calm) taking [DE] out into the community from [the Y home], as long as she did not take him back to [the matrimonial home]. Such visits need to be appropriately planned. Initially at least, [SCC] would want such visits to be both monitored and reviewed."
"[DE] would have been able to leave the building if he had wanted to but would have required the assistance of another person because of his impairments. [JE] would have been able to assist him to leave had the couple wanted this and the home would not have done anything to stop her other than try to dissuade her.
If however it was clear that [JE] was seriously mentally unwell and that this would pose a risk to [DE] or if she had been abusive to [DE] and it appeared that he did not want to accompany her, the Police would have been called if she insisted on removing him or continued to cause a disturbance."
"What I understand this statement to mean is that the police would be called to inform them that a vulnerable adult was being removed from [the Y home]. I would not ask police (and the police would not be able) to prevent [JE] from removing [DE] from [the Y home]."
Referring to the letter and the memorandum of 4 November 2005, she says: "on the basis of this e–mail, and the letter … had [JE] been determined to remove [DE] from [the Y home] I would have called the police to inform them of what was happening." But, she adds: "Neither I nor the police would have been able to prevent his removal."
The facts – SCC's submissions
"[SCC] does not consider that [DE] should reside with [JE] because it is not in his best interests given the substantial risks to him. [SCC] will therefore continue to make arrangements to accommodate [DE] at [the Y home] and does not propose to facilitate a move to [DE] residing with [JE].
Should [JE] remove [DE] from the home, neither [SCC] nor the home will physically prevent her. [SCC] and the home will, however, remind [JE] of the terms of the interim declaration in these proceedings and attempt to persuade [DE] and [JE] that he should not leave. If [JE] is abusive to [DE] or he appears not to want to leave, or if there is some disturbance or some other good reason relating to [DE]'s condition as to why he should not leave, then the police will be called. It is accepted, however, that the police will not be able to prevent [JE] from removing [DE].
There are absolutely no restrictions on [DE]'s contacts with [JE] at [the Y home]. Indeed [SCC] facilitates contact by meeting some of [JE]'s travel costs for her visits to [DE]. Nor are there restrictions on [DE]'s contact with [JE] outside [th Y home], save that she should not take him far from his home at [the Y home], there should be an estimated time of return, and [JE] should be sufficiently well to ensure his safety; ideally the trip should be planned so a member of staff should be available to be called out to assist them if needed. [SCC] considers that contact should not be at [JE]'s home because of the risks to him. As with all vulnerable persons, [SCC] would not agree to [JE] taking [DE] on a visit away from the home if she were not reasonably settled and calm and able to protect [DE]. It would be desirable that any outing be local and planned so that they may be suitably supported by a member of staff to ensure [DE]'s safety. However, if [JE] decided to remove [DE] without these arrangements, then [SCC] could not physically prevent her. If the police were summoned, they might act to prevent an assault or breach of the peace, or once away from the home, if [DE] were in danger, the police could be asked to exercise their powers under section 136 of the MHA.
There are no other external restrictions on [DE]'s life: his movements and contacts are completely unrestricted, and he is not subject to any physical or chemical restraints. Dr Jefferys observed the wide range matters over which, having regard to the circumstances, [DE] was able to exercise a choice and his autonomy. In particular, [DE] has regular contact with his daughter which they both enjoy. She is supportive of his placement at [the Y home]."
i) Although there are some restrictions of DE's liberty, these restrictions, understood in their full context and in all the circumstances of the case, do not involve such a degree of interference in DE's life as to amount to a deprivation of liberty. In short, DE is merely subjected to restrictions on his liberty, not a deprivation of his liberty.
ii) Within the home the following factors support this conclusion:
a) DE has his own room, shared use of communal space and free access to the entire home;
b) DE is not subject to any physical or chemical restraint;
c) DE is not subject to continuous observation (as HL was) and only has contact with care staff which is either initiated by him or otherwise necessary to meet his care needs;
d) DE is offered as much choice as possible about his day–to–day life within the constraints of his disabilities;
e) there are no issues of dispute or compulsion arising out of DE's care or treatment.
iii) Contact with the outside world: Ms Morris says that there are no restrictions on:
a) DE's telephone contacts with others, save those arising out of his own disability – and care is provided to enable him to overcome those;
b) DE's movements outside the home: he regularly goes, and is encouraged to go, out of the home, as far as his disabilities and inclinations allow;
c) DE's contacts with any other person, and steps are taken to encourage him to engage with others;
d) DE's unlimited contact with JE in the home, which is indeed facilitated by SCC and the home and is limited only to the extent that is absolutely necessary in order to protect DE's safety.
In sum, there are no restrictions on DE's movements and he can move around the community unhindered.
iv) The only limitation is that it is the clearly–expressed view of SCC that it would not be in his best interests for DE to return to live with JE; indeed SCC "will not agree" to DE returning to live or visit with JE. On the other hand, SCC would not object in principle to DE living in some other suitable place, for example, with his daughter or in some other residential establishment selected by DE or on his behalf in accordance with the relevant regulations under the National Assistance Act 1948.
v) Likewise, it is SCC's view that it is not in DE's best interests to go on unplanned, unaccompanied outings with JE when she is unsettled or unstable, so that she would not be able to keep him safe (these restrictions, it is said, being those ordinarily applied to all friends or relatives of vulnerable adults in order that care providers may discharge their duty of care to the vulnerable whom they accommodate).
vi) On the contrary, SCC expressly acknowledges that it does not have the power to prevent JE removing DE contrary to its advice and either taking him home or taking him out on whatever outing she may wish. That said:
a) SCC will attempt to dissuade JE or anyone else who wishes to take this course; and
b) if they persist, SCC will contact the police (though acknowledging that the police would have no power to act if summoned unless there was, for example, an assault or threatened assault or breach of the peace or unless the circumstances were such as make it appropriate for the police to exercise their powers under section 136 of the Mental Health Act 1983).
a) the restrictions which are imposed on DE are in his best interests having regard to his vulnerability and lack of capacity to make the decisions; moreover, they arise in the context of abuse and neglect and lack of co–operation with care leading to a deterioration in his condition when efforts were made to enable him to reside with JE in the community;
b) DE is not distressed by the restrictions placed on him, nor does he take steps to resist or avoid them; the strength of his expressed wish to return to reside with JE falls to be assessed within the context of his incapacity in respect of that very decision.
The facts – the claimant's submissions
i) the entry made in the notes by Ms Soper on 14 November 2005 (see paragraph  above);
ii) the instructions issued by SCC that if JE attempts to remove DE the police must be called – instructions that have been communicated to JE by the letter dated 4 November 2005;
iii) the entry in the case notes for 7 December 2005 recording Mr Hockin being told that "it will not be possible for [DE] to leave" (paragraph  above);
iv) SCC's refusal to allow DE to go home for Christmas 2005;
v) the statement at the meeting on 2 March 2006 that "we can't allow him to go home today" (paragraph ).
i) As regards the objective element, SCC has exercised complete and effective control over DE's care and movements and he has not been 'free to leave' either the X home or the Y home since 4 September 2005.
ii) As regards the subjective element, DE lacks capacity and, in any event, has made it perfectly clear that he wishes to leave and does not consent to his confinement.
The facts – discussion
i) 28 September 2005: The plan agreed with the X home that "[JE] will not be allowed to visit [DE} or take him from [the X home]" (see paragraph [92(iv)] above).
ii) 1 October 2005: SCC told the hospital that JE was "not to remove [DE] from the hospital" (paragraph [92(v)]).
iii) 4 November 2005: Letter to JE "asking" her not to attempt to remove DE from the X home and saying "If you should attempt to do this it would be necessary to call the police" (paragraph [92(vii)]).
iv) 4 November 2005: Memorandum to SCC staff and copied to the X home stating (in bold type) that "If [JE] attempts to remove [DE] the police must be called" (paragraph [92(viii)]).
v) 14 November 2005: Ms Soper's statement "I have informed him he cannot leave" (paragraph ).
vi) 2 December 2005: Letter from SCC to JE's Member of Parliament stating that "police assistance would be sought if she tries to remove him" (paragraph [92(x)]).
vii) 7 December 2005: Mr Hockin told by SCC that "it will not be possible for [DE] to leave [the Y home]" (paragraph [92(xi)]).
viii) 8 December 2005: SCC "advised [Ms Soper] she should call the police if necessary." Ms Soper "refused" JE's request to take DE out (paragraph ).
ix) 14 December 2005: An approved social worker advised the Y home that "if [JE] removes him the police and the involved Approved Social Worker should be informed so that we are able to apply for his return" (paragraph [97(i)]).
x) 23 December 2005: Ms Wright told Mr Hockin "emphatically" that DE could not go home for Christmas" (paragraph [97(ii)]).
xi) 2 March 2006: SCC's legal adviser told JE's solicitor that "We can't allow him to go home today because of the risk" (paragraph [97(iv)]).
xii) 7 July 2006: "[I] could not guarantee that he goes home. Only the courts could decide that" (paragraph ).
xiii) 18 August 2006: SCC's position statement records SCC's position as being "no longer opposed to [JE] … taking [DE] out into the community … as long as she did not take him back to [the matrimonial home]" (paragraph [97(vi)]).
i) JE says that it was "made clear to me that I was not allowed to take [DE] home with me" and that she interpreted the letter of 4 November 2005 as meaning that if she attempted to do so the Police would be called to stop her (paragraph ).
ii) Ms Soper said that she understood her instructions to be that the Police should be called if JE attempted to remove DE (paragraph ). She accepted that her understanding was that DE was not free to go home with his wife and agreed that she had told him he could not leave to return home with JE (paragraph .
Note 1 Although I have given the relevant references to the reports of the various Strasbourg cases in EHRR, I have taken the texts of the judgments from the versions that are published on the official web–site of the ECtHR. These sometimes differ in minor respects from the versions printed in EHRR. [Back]
Note 1 Although I have given the relevant references to the reports of the various Strasbourg cases in EHRR, I have taken the texts of the judgments from the versions that are published on the official web–site of the ECtHR. These sometimes differ in minor respects from the versions printed in EHRR. [Back]