In a case of vital importance for the elderly and vulnerable, a judge has ruled that a woman who lives in a dream world and is looked after in her home, around the clock, by a state-funded team of carers, is not suffering any ‘deprivation of liberty’.
The mother-of-three suffered brain damage following an operation in 1996 and, from then onwards, time had stopped for her. Stricken by powerful delusions, she tended to wander off in search of her ‘young children’, who were in fact adults, and required 24-hour supervision and a care regime costing almost £1,500 a week.
There was no dispute that she was of ‘unsound mind’ and that, when she wandered off, her carers would bring her back home. However, given the very high level of supervision she receives, an issue arose as to whether she is being ‘confined’ in her own home and deprived of her liberty, within the meaning of Article 5 of the European Convention on Human Rights.
In ruling that she is not – and that there is no need for her care to be periodically reviewed by judges – the Court of Protection noted that she is barely able to walk and is thus close to being housebound in any event. If judicial supervision was required in her case, then 'tens, if not hundreds, of thousands' of similar cases would have to be dealt with in the same way, with serious consequences for the scarce resources of local authorities and the courts alike.
If her care regime was being funded by her family, instead of the state, no one would suggest that her right to liberty was being infringed and the idea that she was being confined against her will was 'arguably irrational'. Quoting philosopher, John Stuart Mill – who wrote the classic essay 'On Liberty' in 1859 – the judge said he would have viewed it as 'utterly impossible' that the woman was being deprived of her liberty by being cared for in her own home at public expense.
Although the judge 'wholeheartedly agreed' that any discrimination against disabled people should be denounced, he found that the woman was not in any realistic way being constrained from exercising the freedom to leave her home ‘for the essential reason that she does not have the physical or mental ability to exercise that freedom’. Recognising the vital importance of the case, and the prevailing confusion in the law on the issue, the judge concluded, "I am of the view that the matter should be reconsidered by the Supreme Court."