JMcA’s Application  NIQB 77
Guardianship – deprivation of liberty
This is a decision of the High Court in Northern Ireland but is of significant interest. Mr J McA had been under the guardianship of Belfast Health and Social Care Trust since 2004. He had a learning disability, diabetes, and a history of serious aggression and sexual risk. Using its powers analogous to those in England and Wales, the guardian required him to reside in supported accommodation which he shared with two other men. He was happy living there; participated in the running of the household; had complete freedom of movement inside; attended a day centre every week day; was a member of a garden centre group and drama group; had social and sporting interests, attending events across the United Kingdom; and attended a college course.
His supervision and support plan enabled him to walk to local shop without supervision twice per week, to go to the local shopping centre for around 30 minutes unsupervised once per week, and to go to the shops from the day centre unsupervised once a week if he needed to make a purchase. Aside from this, he could not leave the place of residence or the day centre unless accompanied by someone approved by his guardian. He could be brought back if he went absent without leave. He received one to one support for all community outings, sports trips and holidays and was isolated from his family.
Amongst the issues considered were whether the guardian’s restrictions on him leaving the property at any time of his choosing and unaccompanied were beyond its powers, and whether his rights under Articles 5 and 8 ECHR were violated. These were determined on the basis that Mr McA had legal capacity to participate in the proceedings.
The High Court held that guardianship did not provide authority to deprive a patient of their liberty. Parliament intended for guardianship not to restrict liberty but to create a flexible vehicle to maximise their freedom (para 27). A deprivation of liberty had to be distinguished ‘from appropriate supervision and in cases of adults of impaired mental ability the distinction between these two things may be harder than expected to pin down accurately’ (para 19). The court found Cheshire West and Chester Council v P  EWCA Civ 1257 to be helpful in this regard (para 20).
The Court went on to rule that the power to return a person under guardianship to their required place of residence where they are absent without leave meant that there was an implicit power ‘that the guardian can impose a reasonable and lawful condition on the grant of leave of absence, including a condition that leave, express or implied, must be obtained in advance of the person absenting himself from the place at which he is required to reside’. The rationale was that otherwise the guardian would not know who was still ‘residing’ there. Thus ‘The failure to have the requisite leave gives rise to the discretionary power to retake and return’. Thus, there was no reason ‘why a condition cannot be imposed requiring a person to seek leave of absence before he/she departs the place of residence’; indeed such a condition was ‘a de facto necessity’ if the power to return was to have any meaning in practice (para 28).
The court went on to state:
“ It seems to me that a Guardianship system which envisages use of coercive powers in relation to residents who are ‘absent without leave’ presupposes knowledge of /control by the Guardian of when leave is given and when it is not: i.e. the Guardian must make this decision in relation to the movements of every resident within his/her Guardianship. In exercising this discretion the Guardian should take account of the purposes of Guardianship which include supervision of the person subject to Guardianship in a manner which maximizes his/her freedoms whilst also protecting him/her from harm and protecting the interests of the wider community. Given this entire context it seems to me to be quite appropriate for the Guardian to impose such conditions on the grant of leave as are necessary to achieve all the purposes of the Guardianship arrangement. Such conditions may well include the imposition of a requirement that the person be supervised by a person appointed by the Guardian during periods of agreed absence. Of course all such conditions must be required by the individual circumstances of each case and must be proportionate and reasonable in light of those prevailing circumstances.
 Where a person subject to Guardianship feels that a condition or restriction is not warranted in his/her case he/she should have the opportunity to raise these concerns in an effective way and should be facilitated to explain why they say the disputed conditions/limitations are inappropriate. In the present case I am satisfied that the applicant did have such opportunities and they were rendered effective especially by the provision of an independent advocate to support the applicant at planning/review meetings.
 If a person subject to Guardianship flouted reasonable, proportionate and lawful conditions proposed by a Guardian then the Guardianship arrangement may cease to be appropriate since it is based upon consensus and cooperation. In such circumstances the guardian must take whatever steps are necessary to ensure that the person receives appropriate supervision and support via some other legal channel.
 Parents or those in loco-parentis will frequently impose restrictions on, for example, children who want to stay out later than is appropriate for them, or to associate with persons who their parents consider it would be better for them to avoid. Restrictions on time out and/or rights to associate with others do not result in a deprivation of liberty for these children: on the contrary, they are often the means whereby they are facilitated to enjoy their freedom to the fullest extent possible given the age, life experience and understanding of the children in question. Similarly, in the case of vulnerable adults the impositions of restrictions designed to protect them and those around them, are rarely likely to amount to ‘deprivations of liberty’.
 Guardians who impose restrictions/supervision to protect those whom they are guarding are discharging their functions appropriately and are maximizing rather than limiting the freedoms of those subject to their care. It appears to me on the evidence that this is what happened in the present case and that, despite some complaints by the applicant about the level of restriction to which he was subject, the reality was that he generally accepted the conditions judged necessary by his support team and used the space within them to live as full and varied a life as would be available to most individuals with cognitive and other limitations comparable to his own. It appears to me on the evidence that this applicant is comparable to an older teenager who, whilst he may complain about some restrictions imposed by his parents, nevertheless generally complies and does not find the limitations sufficiently burdensome to wish to change his living arrangements entirely. Far from that being this case the applicant, who as we have seen, has a learning disability and a history of serious aggression, is a capable person co-operating with the day to day working of his care plan and he has never departed from the supervision in place. The fact that he may wish that some of the restriction on his freedom could be removed does not convert his position from one of compliance into one where he suffers deprivation of liberty.”
It followed that the measures used by the guardian were not unlawful.
It has long been thought that the curious feature of guardianship is that the guardian can require the person to reside somewhere, can return them if they abscond, but cannot prevent them from leaving. According to this decision, which is not legally binding in English law but of persuasive authority, there is such a power, albeit implicit. The whole tenor of decision seems to envisage a heavily regulated regime of guardianship, with the person every movement being determined and monitored by the guardian. Whether potential local authority guardians would find this attractive or not remains to be seen.
Some will find surprising the Court’s conclusion that these circumstances did not amount to a deprivation of liberty. Comparing the patient’s circumstances with parental restrictions imposed on a stroppy teenager is novel, perhaps even wayward. And the broad-sweeping statement that restrictions imposed to protect vulnerable adults and those around them are rarely likely to amount to a deprivation of liberty is a matter of deep concern. No doubt the relevance of purpose will be considered by the Supreme Court this October. The Strasbourg Court appears to be talking semantics. Previously purpose was relevant (HM v Switzerland). Then it was not (Austin v UK) but regard could be had “to the specific context and circumstances surrounding types of restriction.” But then, five months later, purpose was relevant (Munjaz v UK). No doubt all will become clear.