Deprivation of Liberty Defined by the Supreme Court: a difference of views concerning deprivation of liberty of disabled persons

Tim Baldwin comments on today’s Supreme Court judgment regarding the deprivation of liberty of people with disabilities.

This note concerns the case of P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents); P and Q (by their litigation friend, the Official Solicitor)(Appellants) v Surrey County Council (Respondent) [2014] UKSC 19 handed down on the 19 March 2014

The issues

These conjoined appeals concern the criteria for determining when the living arrangements made for a person who lacks mental capacity to make decisions for themselves constitute a deprivation of liberty. If they do, the deprivation must be authorised by a court or by the procedures known as the deprivation of liberty safeguards (DOLS) contained within the Mental Capacity Act 2005 (MCA 2005) and consequently be subject to regular independent checks.

The background facts

P and Q (MIG and MEG) are sisters who were the subject of care proceedings which commenced in 2007 when they were respectively 16 and 15. MIG and MEG have learning disabilities, with MIG being placed with a foster mother and went to a further education unit daily. MIG never attempted to leave the foster home by herself. In any event MIG would have been restrained from doing so had she tried to leave on her own. MEG was moved from foster care to a residential care home for adolescents with learning disabilities and complex needs. MEG sometimes experienced physical restraint and received tranquillising medication. When the care proceedings were transferred to the Court of Protection in 2009, the judge held that these living arrangements were in the sisters’ best interests and did not amount to a deprivation of liberty which was upheld by the Court of Appeal.

P is an adult with cerebral palsy and Down’s syndrome from birth who requires 24 hour care. Until P was 37 he lived with his mother but when P’s mother’s health deteriorated local social services authority obtained orders from the Court of Protection that it was in P’s best interests to live in accommodation arranged by the local authority. From November 2009 P has lived in a staffed bungalow with other residents near his home and has one to one support to enable him to leave the house frequently for activities and visits. Intervention by staff sometimes occurs when P exhibits what is defined as challenging behaviour. The judge of the Court of Protection held that these arrangements did deprive him of his liberty but that it was in P’s best interests for them to continue. However, the Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty, after comparing P’s circumstances with another person of the same age and disabilities as P.

The decision of the seven-member Supreme Court

The court unanimously allowed the appeal of P, and by a majority of 4 to 3 allowed the appeal of MIG and MEG. Further the court held that MIG, MEG and P have all been deprived of their liberty. Lady Hale, with whom Lord Sumption agrees, gives the main judgment. With Lord Neuberger and Lord Kerr agreeing with Lady Hale in separate judgements. However both Lord Carnwath and Lord Hodge give a joint judgment dissenting in the appeal of MIG and MEG with agreement by Lord Clarke  in an additional judgment.

DOLS were introduced into the MCA 2005 following the case of European Court of Human Rights HL v United Kingdom (2004) 40 ECHR 761 following on from the “Bournewood Gap” case in the House of Lords, which found that the treatment of a severely mentally disabled adult after his informal admission to a psychiatric hospital amounted to a deprivation of his liberty by the hospital. The purpose of DOLS is to secure that an independent professional assessment of (a) whether the person concerned lacks the capacity to make their own decision about whether to be accommodated in the hospital or care home for care or treatment, and (b) whether it is in their best interests to be detained.

The European Court of Human Rights had established general principles relating to the deprivation of liberty of people with mental disorders or disabilities, albeit that it has not yet had to decide a case involving, as here, a person without capacity, who appears content with their care placement, which is in a small group or domestic setting as close to home life as possible, and which has been initially authorised by a court. The general principles make it clear that it is important not to confuse the question of the benevolent justification for the care arrangements with the concept of deprivation of liberty. Human rights have a universal character and physical liberty is the same for everyone, regardless of their disabilities. What would be a deprivation of liberty for a non-disabled person is also a deprivation for a disabled person. The key feature is whether the person concerned is under continuous supervision and control and is not free to leave [paragraph 49 of the judgment]. The person’s compliance or lack of objection, the relative normality of the placement and the purpose behind it are all irrelevant to this objective question [see paragraphs 50 and 87 of judgment].

The court held that It must follow that in P’s case the judge applied the right test and his decision should be restored [paragraph 51] and that MIG and MEG were also both under continuous supervision and not free to leave the place where they lived. The deprivation of their liberty was the responsibility of the state and therefore different from similar constraints imposed by parents in the exercise of their ordinary parental responsibilities [paragraph 54].

As a result of this decisions of the courts below were set and a declaration made that P, MIG and MEG’s living arrangements constituted a deprivation of liberty within the meaning of section 64(5) of the MCA 2005 and that periodic independent checks are needed for such vulnerable people to ensure that the arrangements remain in their best interests, although it is not necessary that the checks be as elaborate as those currently provided for in the Court of Protection or in the DOLS.

In the dissenting judgments Lord Carnwath, Lord Hodge and Lord Clarke would have upheld the decision of the judge in both cases. By contrast they considered that the degree of intrusion is relevant to the concept of deprivation of liberty in MIG and MEGs’ cases the care regime is no more intrusive or confining than required for the protection and well-being of the persons concerned [see paragraph 90]. Further that the European Court of Human Rights had yet to decide a case of this kind and it is far from clear that it would adopt a universal test which disregarded any disabilities [see paragraph 94]. Lords Carnwarth, Hodge and Clarke were concerned that nobody using ordinary language would describe persons living happily in a domestic setting, like MIG and MEG, as being deprived of their liberty.

For a full copy of the judgment click here.

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