Courts Must Take Ageing Persons' Freedom Seriously - Legal Comment

Ann Stanyer 24 April 2019

Courts Must Take Ageing Persons' Freedom Seriously - Legal Comment

The author of this article considers an aspect of how court decisions concerning those with dementia and other forms of cognitive impairment should be treated with regard to their physical liberty and dignity.

This publication continues to track the problems and considerations connected with cognitive decline. Ageing populations bring a fresh set of challenges and put managers’ fiduciary responsibilities under a bright light. There have been controversies about whether to change the process of lasting power of attorney, for example. 

In this article, Ann Stanyer, a partner at law firm Wedlake Bell, writes on a recent court ruling, and ponders the implications. The editors of this news service are pleased to share views with readers and invite them to respond. We do not necessarily endorse all views of guest contributors. Email the editor at

The recent case of CB v Medway Council & Anor (Appeal) [2019] EWCOP 5 was an appeal brought by the Official Solicitor against a summary judgment by a Court of Protection Judge. This had decided that a 91 year-old woman (CB), who suffers from dementia, should remain in a care home rather than return to her home with a full-care package. CB had expressed a wish to return home. 

It is an important judgment as it reinforces the message that decisions about a person's physical liberty should not be taken lightly, and only after careful consideration of all the evidence, but also in a timely fashion. The Appeal Court Judge said: "What is involved here is nothing less than CB’s liberty. Curtailing, restricting or depriving any adult of such a fundamental freedom will always require cogent evidence and proper enquiry. I cannot envisage any circumstances where it would be right to determine such issues on the basis of speculation and general experience in other cases".

The Official Solicitor had argued that the court ought to see if it were possible for CB to go home as she would like to and, in that sense, it would be in her best interests. It might be a less restrictive environment, although she would still have to be subject to restrictions on her liberty to prevent her wandering. The local authority would need to carry out a “best interests” evaluation. It appeared that a consultant in old age psychiatry went beyond his instructions to not only comment on questions of capacity but also to evaluate her best interests – that is, where she should live and how she should be cared for. It was agreed that the doctor did not have the information to carry out that evaluation. 

Article 5 of the European Convention on Human Rights (as enshrined in the UK's Human Rights Act 1998) gives everyone the right to liberty and security of the person. It also provides that everyone who is deprived of his liberty 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. This applies equally to a resident detained in a care home as it does to the detention of a prisoner. 

It was clear that the local authority had collated evidence as to a 24-hour care plan and CB's nephew was also prepared to give evidence. However, the Judge launched into her judgment without calling for any submissions. She said: "Having considered the issue carefully, I am going to dismiss this application at this stage. The Official Solicitor is saying that as part of a belt and braces exercise, the court ought to see if it is possible for CB to go home as she would like to and in that sense, it would be in her best interests. It might be a less restrictive environment, although she would still have to be subject to restrictions on her liberty to prevent her wandering".

The judge concluded: "All the evidence is that the care home is appropriate to meet her needs, and, indeed, CM says it is a very caring environment for her. Therefore, while I hear what the Official Solicitor says, I do not think that it is proportionate to make this Local Authority spend the time and cost of going through a balancing exercise which will tell me what I already know in terms of the difficulties, risk and cost of a package of care at home. In my judgement, the evidence is already there to show that the risks of returning home outweigh the benefits to CB of such a return. It is in CB’s best interests to remain where she is, properly looked after and safe. Therefore, for those reasons, I consider that the deprivation of liberty is justified, and I will dismiss this application.”

As Lady Hale said in the Cheshire West case in 2014: "In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else."

This case is a timely reminder that we should all be treated equally regardless of our physical or mental disabilities. The courts are reminded to take care when deciding on someone's liberty. This is an important message for our increasingly elderly population and those who care for them.

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