The Supreme Court defines the meaning of deprivation of liberty
27th March, 2014
The Supreme Court has handed down important judgements in two appeals addressing the meaning of the deprivation of liberty under Article 5 of the European Convention of Human rights.
Lady Hale gave the main judgement in the cases 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 On appeal from [2011] EWCA Civ 1257; [2011] EWCA Civ 190
The judgment essentially confirmed that where a person without capacity is under the control of a local authority (or the state in general) and that person is not free to leave and is under constant supervision, they are deemed to have been deprived of their liberty and will therefore be subject to legal protection via Deprivation of Liberty Safeguards (DOLS).
However, the Supreme Court emphasised that just because someone is deemed to have been deprived of their liberty and is thus subject to DOLS, this does not mean that the deprivation is not justified or that it is not in the person’s best interest.
Background
The appeals from the Court of Appeal concerned the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty.
If they do, the deprivation must be authorised by a court or by DOLS in the Mental Capacity Act 2005 (‘the Act’) and be subject to regular independent checks.
If they do not, the specific checks and safeguards do not have to be complied with.
The facts
P and Q (also known as MIG and MEG) are sisters with learning disabilities who became the subject of care proceedings in 2007 when they were respectively 16 and 15.
MIG was placed with a foster mother to whom she was devoted and went to a further education unit daily.
She never attempted to leave the foster home by herself but would have been restrained from doing so had she tried.
MEG was moved from foster care to a residential home for learning disabled adolescents with complex needs.
She sometimes required 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. This finding was upheld by the Court of Appeal.
P is an adult born with cerebral palsy and Down’s syndrome who requires 24 hour care.
Until he was 37 he lived with his mother, but when her health deteriorated the 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 authority.
Since November 2009 he 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 is sometimes required when he exhibits challenging behaviour.
The judge held that these arrangements did deprive him of his liberty but that it was in P’s best interests for them to continue.
The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty, after comparing his circumstances with another person of the same age and disabilities as P.
The Judgment
The Supreme Court (unanimously in the appeal of P and by a majority of 4 to 3 in the appeal of MIG and MEG) allowed the appeals, noting that in their view MIG, MEG and P have all been deprived of their liberty.
What were the reasons for the Judgment?
The DOLS were introduced into the Mental Capacity Act following the case of HL v United Kingdom (2004) 40 EHRR 761 and their purpose is to secure independent professional assessment of (a) whether the person concerned lacks the capacity to make his own decision about whether to be accommodated in the hospital or care home for care or treatment, and (b) whether it is in his best interests to be detained.
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.
The Supreme Court held that 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 therefore whether the person concerned is under continuous supervision and control and is not free to leave.
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.
It was therefore held that in P’s case the judge applied the right test and his decision should be restored, i.e. that the arrangements in place did deprive P of his liberty but that it was in P’s best interests for them to continue.
It was also held that MIG and MEG were 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).
Accordingly, a declaration was made that their living arrangements constitute a deprivation of liberty and that periodic independent checks are needed for such vulnerable people to ensure that the arrangements remain in their best interests.
What are the implications of the Judgment?
As noted above, the Judgement makes it clear that the human rights have a universal character and that physical liberty is the same for everyone, regardless of their disabilities.
Therefore, what would be a deprivation of liberty for a non-disabled person is also a deprivation for a disabled person.
Consequently, if and when a person’s liberty is restricted, even if the same is necessary and justified, the Deprivation of Liberty Safeguards will have to be complied with and the suitability of the person’s placement would have to be reviewed regularly to ensure that the restrictions placed on them remain appropriate and in the person’s best interests.
Please click here to read the Judgment.
How can I find out more?
For further information on the implications of this Judgment, please get in touch.
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