The Supreme Court handed down the long awaited judgment today in relation P v Cheshire West and Chester Council (& Ors) and P and Q v Surrey County Council (referred to in the judgment as MIG and MEG). The Lords agreed that P was deprived of his liberty and by a four to three majority decided that MIG and MEG were also deprived of their liberty.

The judgment will be of particular interest to clients struggling with the question as to whether or not someone is considered to be deprived of their liberty in relation to Article 5 of the European Convention on Human Rights.

Key points

  • The judgment marks a change in the law relating to DOLS.
  • NHS organisations and Local Authorities should review their case loads to consider whether any patients require assessment under the DOLS regime given the new objective test in place.
  • What would be a deprivation of liberty of 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.

Background

In both P v Cheshire West and Chester Council and P and Q v Surrey County Council (MIG and MEG) the Court of Appeal had decided that neither P nor MIG and MEG were deprived of their liberty. These decisions were appealed and heard in the Supreme Court late last year.

The factual background of each individual is set out below:

P was born with cerebral palsy and Down’s syndrome. He has significant physical and learning disabilities and lacks capacity to make decisions in relation to his care and residence. For most of his life he lived with his mother but in 2009 he moved to Z house as his mother was no longer able to care for him.

P exhibits challenging behaviour. He will tear at his continence pads, grabbing or smearing the contents (faeces) placing them in his mouth and ingesting them. He picks at his skin and bangs or slaps his head. He sometimes shows aggression towards others (including trying to throw things). He will also, at times, be uncooperative (including sitting down on the floor in ways that mean that he becomes unsafe).

Staff will intervene to prevent these behaviours. For example, clothing him on occasions in an all in one suit that zips up the back, in order to prevent him accessing his continence pads.

P goes to a day centre regularly (with staff escort) and P’s evenings involve such activities as going swimming, going to a club and going to a local pub for a curry night. P cannot leave Z House without a member of staff accompanying him but he has 98 hours a week of 1:1 staff support to facilitate this “whenever he chooses”.

P and Q (MIG and MEG) are two sisters who were removed from the family home following various allegations of abuse. Both have substantial and permanent learning disabilities.

MIG has a mental age of two and half years. She has sight and hearing problems and has little communication. At the material time she lived with a foster mother. She had her own room. She never attempted to leave the house but she would have been prevented from doing so if she had tried. She attended further education. She had a limited social life but did go on trips and holidays with her foster mother and had contact with her sister and half sister. She was accompanied at all times when out of the house.

MEG has a mental age of four or five and is able to communicate to an extent. She also displays challenging behaviour. On occasions MEG will have outbursts which require physical restraint and she is administered Risperidone. At the material time MEG lived in a small shared house for four residents. She was under continuous supervision and control but attended further education and had a full social life. She had contact with her sister and half sister. She did not attempt to leave the house but would have been prevented or escorted if she had done so.

Court of Appeal

The Court of Appeal, in both cases had concluded that neither P, MIG or MEG were deprived of their liberty. One of the key factors of the judgment at the Court of Appeal was the “relative normality” of the lives of P, MIG and MEG.

The Court of Appeal determined that the lives of P, MIG and MEG should be compared to a person with the same difficulties. If such a comparator would be subject to the same restrictions by virtue of their difficulties then there could not be a deprivation of liberty.

Supreme Court

The Supreme Court rejected this principle. Lady Hale, who gave the leading judgment, said:

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….What it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities.…If it would be a deprivation of my liberty to be obliged to live in a particular place, subjected to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage. 

She determined that the question of whether someone is deprived of their liberty is an objective test which can be summarised as:

Is the person under complete and effective control in respect of their care and movements (such as under constant supervision) and not free to leave without permission?

The person in question should NOT be compared to someone with the same disabilities but to someone of the same age who has no disability. If you look at the restrictions and disregard them because they are to be expected for someone with the same disabilities this is confusing the issue of justification with the question of whether there is a deprivation of liberty. She also said:

If the fact that the placement was designed to serve the best interests of the person concerned meant that there could be no deprivation of liberty, then the deprivation of liberty safeguards…would scarcely, if ever, be necessary.

She said that the following subjective factors should not be considered when determining whether someone is deprived of their liberty: whether the person objects or shows signs of resistance to their placement; is content with or compliant with the placement; the relative normality of the placement and the purpose of the placement.

Lord Carnwath, Lord Hodge and Lord Clarke agreed that P was subject to a deprivation of liberty but did not agree that MIG and MEG were subject to a deprivation of liberty.

They observed that the ECtHR had not looked at a situation such as this before. They believed the Supreme Court should be cautious about extending a concept as sensitive as “deprivation of liberty” beyond the meaning which it would be regarded as having in ordinary useage. They also looked at the freedoms enjoyed by P, MIG and MEG and referred to cases where ECtHR had commented that such a life would be unlikely to involve a deprivation of liberty. They also considered the fact that P, MIG and MEG would be living under the same conditions if they were living at home and therefore they expressed concern that nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty.

However, it was the majority view that P, MIG and MEG were being deprived of their liberty because the test   should be a simple objective test of whether the staff have complete and effective control and the person is not free to leave without permission.

Conclusion

This decision released today marks a fundamental shift in determining whether there is a deprivation of liberty. There are likely to be thousands of people who were not considered to be deprived of their liberty yesterday who will be today in light of this judgment.

Local Authorities and health bodies alike will now have to re-consider their case load and determine whether they are caring for people whose circumstances amount to a deprivation of liberty and make the necessary referral for an assessment or indeed an application to the Court of Protection if the person is not resident in a care home or hospital.

Just last week the House of Lords Select Committee published their report on the Mental Capacity Act 2005. One of their recommendations was that the DOLS regime should be scrapped and re-written. The Government has not yet responded so it is too early to say whether there will be any fundamental changes to the system.

Lady Hale acknowledges the difficulties with the system and suggests that the current deprivation of liberty safeguards could be simplified and extended to placements outside hospitals and care homes.