JE v DE & Ors

For an adult, the question whether there has been a deprivation of liberty under Article 5 depends on the person’s concrete situation, assessed by reference to the type, duration, effects and manner of implementation of the restrictions. The key practical question is whether the person is free to leave, viewed in the light of the control exercised over care and movements. Locked doors and physical restraint are not essential.

The assessment also requires a subjective element. Valid consent requires capacity. A person who lacks capacity cannot be treated as consenting merely because he does not physically resist or has submitted to the arrangement. Beneficial purpose and best interests do not determine whether a deprivation has occurred; they concern justification after deprivation is established.

JE commenced proceedings under the inherent jurisdiction concerning the accommodation and care arranged for her husband, DE, by Surrey County Council. DE had significant disabilities and was placed first in one residential care home and then in another. He repeatedly expressed a wish to return home and live with JE.

The claim raised issues under Articles 5 and 8 of the Convention, including whether DE had been deprived of his liberty. The Official Solicitor made a cross-application concerning the same issue. The court was asked to determine whether DE had been deprived of his liberty at any time since 4 September 2005 and whether he remained so deprived.

1. Issue and result. The court held that DE had been deprived of his liberty at the X home and had been, and remained, deprived of his liberty at the Y home from 4 September 2005. The remaining Article 5 issues were left for a later hearing if necessary.
2. Applicable test. The Convention concept has an autonomous meaning. The court applied the Strasbourg approach in Guzzardi v Italy (1980) 3 EHRR 333 and Ashingdane v United Kingdom (1985) 7 EHRR 528: the assessment starts with the concrete situation and considers the type, duration, effects and manner of implementation of the measures. The distinction from a restriction on liberty is one of degree or intensity, not nature.
3. Objective element. In this context, the central question was whether DE was free to leave. That required consideration of whether SCC exercised complete and effective control over his care and movements. Whether the homes were locked or lockable was relevant but not determinative. A person may be deprived of liberty despite substantial freedom inside an institution, extensive social contact, occasional outings and the absence of physical or chemical restraint.
4. Subjective element. The court accepted the formulation derived from Storck v Germany (2005) 43 EHRR 96. Valid consent requires capacity. A person lacking capacity cannot be treated as consenting because he is compliant or does not attempt to leave. DE’s repeated objections and wishes to return home were inconsistent with consent in any event.
5. Purpose and best interests. SCC’s benevolent purpose did not prevent the restrictions from constituting a deprivation. The court expressed doubt that Nielsen v Denmark (1988) 11 EHRR 175 and HM v Switzerland (2002) 38 EHRR 314 could safely support a general proposition that measures principally taken in a person’s interests are not a deprivation of liberty. The question whether there has been a deprivation must be separated from whether it can be justified.
6. Application. SCC’s records and instructions repeatedly indicated that DE could not leave, that the police would be called if JE removed him, and that his return home required SCC’s approval. Those communications were intended to prevent removal and did prevent it. The court rejected the suggestion that the police would lack power to prevent removal as ex post facto legal sophistry. DE was therefore not free to leave and was deprived of his liberty.