GT Stewart successfully resisted an attempt by Enfield Council to initially dismiss, then drastically reduce the scope of, a challenge to the deprivation of liberty of an 81 year old lady with dementia, DL, in a care home.

DL had consistently expressed a wish to return home, displaying signs of anxiety, necessitating an application in the Court of Protection (“COP”) on DL’s behalf under s.21A Mental Capacity Act 2005 (“MCA”) in accordance with the Deprivation of Liberty Safeguards. However, Enfield argued the application shouldn’t have been made, as DL’s anxiety was “caused by her dementia” rather than any true desire to leave the care home.

Enfield later accepted the case had been brought appropriately, but still argued the issues raised within the application (for example, whether steps to improve DL’s mental health could be taken) were not within the scope of the application.

The Court dismissed Enfield’s arguments, stressing local authorities must “never [be] allowed to become cavalier about the significance of deprivation of liberty to the individual concerned and to society as a whole… Article 5 rights do not become less precious because of… administrative burden”.

The Court accepted “Article 5.4 is first and foremost a guarantee of a fair procedure for reviewing the lawfulness of detention. An applicant is not required as a precondition to enjoying that protection to show that on the facts of his case he stands any particular chance of success in obtaining his release”.

The Court went on to award costs against the local authority.

This judgment is a helpful restatement of the importance of allowing those deprived of their liberty to access their Article 5 rights. Judgment can be found here https://www.bailii.org/ew/cases/EWCOP/2019/B1.html