On Wednesday 19 March 2014, the Supreme Court allowed two appeals, which concerned the test for determining whether arrangements for the care of a person who lacks capacity in that regard amount to a deprivation of liberty.

The cases

Cheshire West concerned P, a 39 year-old man who has cerebral palsy and Down’s Syndrome. P lacks capacity and lives in a staffed small group home. He has evidenced challenging behaviour, such as accessing his incontinence pads and putting them into his mouth. To stop him from reaching them, he was put into all-in-one babygro. P also requires one-to-one support and intervention. At first instance, the Court of Protection ruled that P was being deprived of his liberty. However, the Court of Appeal reversed this judgment. In the Court of Appeal judgment, it was said that what might be a deprivation of liberty for one person may not be a deprivation for another. Consequently, a number of factors were suggested for determining whether there had been a deprivation. These included the relative normality of the arrangements (where the comparator would be a person similarly disabled), the purposes of the arrangements and whether the person objects to the arrangements.

P&Q (also referred to as MIG & MEG) concerned two sisters, now in their twenties, one of whom lived in a foster home with the other living in a residential unit. The Court of Protection held that their arrangements were in their best interests and did not constitute a deprivation of liberty. The Court of Appeal agreed.

The Supreme Court decision

The Supreme Court allowed the appeals and ruled that P, MIG and MEG had been deprived of their liberty. In the Cheshire West case, it did so unanimously. In the P&Q case, it did so by a majority of four to three.

In her leading judgment, Lady Hale rejected the Court of Appeal’s approach in Cheshire West for determining whether or not someone was being deprived of their liberty. She stated that since disabled people enjoy the same rights as everyone else, what constitutes a deprivation of liberty for an able bodied person is also a deprivation for a disabled person. As such, it is not relevant that a mentally disabled person’s surroundings are ‘relatively’ normal; that he or she does not object to the placement; or that the arrangements are an appropriate means of achieving the best outcome for the person. These factors may justify a deprivation of liberty - but they do not determine whether there has been a deprivation in the first place… that would be putting the cart before the horse. Instead, Lady Hale stated that the test for identifying a deprivation of liberty is whether the person is under continuous supervision and control and not free to leave.

The possible consequences

Under the Deprivation of Liberty Safeguards (DOLS) regime, vulnerable people who are being deprived of their liberty, otherwise than under the Mental Health Act 1983, enjoy statutory legal protection. This protection includes a requirement on the relevant managing authority (a hospital or care home) to obtain authorisation for the deprivation from the supervisory body.  It also means that many more people may be deprived of their liberty in their own home (e.g. a supported living arrangement) and in those cases an application will need to be made to the Court of Protection for authorisation.

What happens now?

The objective nature of Lady Hale’s test means that even the most benevolent arrangements now amount to a deprivation where there is continuous supervision and control, and where the person is not free to leave. It is irrelevant whether or not the person objects to the arrangements or has tried to leave.  The quality of care or treatment is not relevant to this question, for, as Lady Hale put it, ‘a gilded cage is still a cage’.

Any providers and commissioners responsible for a person who lacks capacity, whether this is in hospital, a care home or in their own home, therefore need to urgently review the arrangements in light of this judgment and assess whether or not the person is under continuous supervision and control and not free to leave that place (i.e. to move somewhere else). If they are, then authorisation for deprivation of liberty needs to be obtained urgently from the relevant local authority as supervisory body or the Court of Protection.

How local authorities and the court will cope with what will inevitably be a large increase in applications remains to be seen.

The House of Lords Committee has recently considered the effectiveness of the Mental Capacity Act and DOLS and has recommended that the Government replace the DOLS regime. However, there is no indication as yet as to how this may be done and the current requirements must be complied with. Failure to do so will leave public bodies at risk of claims for unlawful detention and breach of Article 5 rights under the European Convention of Human Rights (the right to liberty).

It is also essential that staff training is up to date on this issue.