The following comment is provided by Jenni Richards QC and Neil Allen, both of whom were instructed (along with Peter Mant) on behalf of the local authority respondents to both appeals.

According to Lady Hale, “these cases are not about the distinction between a restriction on freedom of movement and the  deprivation of liberty” (paragraph 48). For the respondents, at least, that distinction went to the very heart of the appeals.2 Indeed, this was the seventh time in as many years that the highest Court had been approached for guidance on it. The distinction is reflected in the European jurisprudence between Article 2 of Protocol 4 and Article 5 ECHR. It can be seen in the Mental Capacity Act 2005 between s.6 (restriction on movement) and s.4A (deprivation of liberty), despite s.4A being confusingly entitled, “restriction on deprivation of liberty.”

So why does the distinction matter? “Depriving” liberty is unlawful unless the procedural and substantive safeguards of Article 5 are met. Care homes, hospitals, supported living schemes, and foster parents, for example, cannot care for a “deprived” person unless a prescribed legal procedure is first followed and their detention is justified on one of six grounds. Lord Kerr helpfully defined “liberty”: it is “the state or condition of being free from external constraint. It is predominantly an objective state. It does not depend on one’s disposition to exploit one’s freedom. Nor is it diminished by one’s lack of capacity” (paragraph 76). Liberty is intrinsic to the person: whether they be running around an open park or lying in a persistent vegetative state on a hospital bed, the degree of liberty remains the same.

The threshold at which the constraints upon such liberty are so intense as to constitute a deprivation of it is the same throughout the justificatory grounds in Article 5 and throughout the Council of Europe. Indeed, Parliament in MCA 2005 s.64(5) expressly aligns our domestic threshold with that of Strasbourg. Thus, whether it is a man with schizophrenia being kept in a Bulgarian care home, or a man with autism informally kept in Bournewood psychiatric unit; whether it is a woman kettled by police at Oxford Circus for 7 hours; or someone with a brain injury in a medically   induced   coma, the threshold for triggering Article 5 remains the same. In our opinion, that threshold cannot alter depending on whether the deprivation is potentially justifiable (type 1) or not (type 2)3: this puts the cart before the horse. It conflates the primary question of whether Article 5 is engaged with the secondary question of whether it can be justified.

The relevance of Strasbourg

Domestic courts must usually “take into account” European jurisprudence: Human Rights Act 1998 s.2. Doing no less but certainly no more than the ECtHR avoids judicial legislation and prevents member states from forging ahead out of kilter, albeit with the risk of falling behind in trying to stay level. Uniquely, however, MCA s.64(5) expressly gives “deprivation of a person’s liberty” the same meaning as in Article 5(1). Parliament’s intention was thereby to align our judicial definition with that of Strasbourg. It was, essentially, to give Strasbourg decisions direct effect in domestic law. Our threshold for Article 5 thereby rises and falls with every Strasbourg decision with no margin of appreciation.

This has the potential to create significant legal uncertainty. Strasbourg does not follow the doctrine of precedent. Its case law is not even binding upon  itself. And  yet  Parliament  has required our courts to abide by it. The Supreme Court accepted that there was an absence of direct authoritative guidance from across the water. None of the ECHR decisions concerned the Article 5 threshold in “ordinary” homes, only institutional (and often isolated) settings like social care homes and psychiatric hospitals. Moreover, the case law that was available was “clear in some respects but not in others” (paragraph 32). The majority of four lowered the threshold beyond that recognised – thus far - by Strasbourg; the minority of three did not.

Key Aspects of the Decision

Relative normality and the vexed question of a comparator

The concept of relative normality originates from Engel and resonates in some of the previous House of Lords decisions. It was embraced in the Surrey proceedings. And the more controversial yardstick of disabled normality originated in the Cheshire West proceedings. But none of the parties in the appeals supported a disabled comparator and its disappearance is welcome.

Disabled normality has gone; and so too has relative normality, in the sense used by the Court of Appeal in the Surrey case. Lady Hale considered comparing lives of MIG and MEG with the ordinary lives which young people of their ages might live to be “both sensible and humane” (paragraph 47), although it did not answer the question. Indeed, “the relative normality of the placement (whatever the comparison made) is not relevant” (paragraph 50). As for comparisons, paragraph 46 of her judgment suggests that an appropriate comparator is Lady Hale herself: “if it would be a deprivation of my liberty … then it must also be a deprivation of liberty of a disabled person”.

Lords Carnwath and Hodge recognised that “the comparator should in principle be a person with unimpaired health and capacity” (paragraph 80), whereas Lord Kerr’s comparator compared the person’s age and station in life4. Thus, for MIG and MEG the relevant comparator was “a teenager of the same age and familial background as them”. Lord Clarke, by contrast, expressly endorses the approach of Parker J. which considered the sisters’ lives as dictated by their own cognitive limitations. What role a comparator now plays in determining whether there is a deprivation of  liberty is, we suggest, not as clear as it could be.

Objections

Both the English and the Strasbourg courts have often referred to the relevance of the person’s objections. And, of course, the “effect” of the measures is one of the criteria to be taken into account, according to the consistent jurisprudence of the ECtHR. However, objection or lack of objection is now irrelevant. The right to liberty is of course too important for a person to lose the benefit of protection for the single reason that he may have given himself up to detention. But ruling out objection entirely seems to render redundant the Strasbourg court’s “effect” criterion.

Purpose or Context?

In the control order case of JJ, Lady Hale held that, “… restrictions designed, at least in part, for the benefit of the person concerned are less likely to be considered a deprivation of liberty than are restrictions designed for the protection of society”. But benevolence is now irrelevant. It is also unclear whether the context of the restrictions is relevant: at best they “may not” be irrelevant (paragraph 43).

The Acid Test

The Supreme Court’s decision winds the law back to the time before the deprivation of liberty safeguards came into force. We have an acid test. But its parameters and contents are not as clear as was hoped. Lady Hale refers to “complete supervision and control” and “not free to leave” (paragraph 54). For Lord Neuberger, the essential ingredients are “continuous supervision and control and lack of freedom to leave” as well as “the area and period of confinement” (paragraph 63). What is meant by area of confinement is not explained. For Lord Kerr the duration of the restriction seemed paramount (paragraph 78).

Regrettably the twin concepts are not straightforward. Practitioners have been told which factors are irrelevant. But no guidance is given as to when “supervision” is not “control”; or when “supervision and control” are not “complete” or “continuous.” There is no analysis as to what it means to be “free to leave” or its inter-relationship with its twin concept. Reference is made to Munby LJ’s, “I mean leaving in the sense of removing himself permanently in order to live where and with whom he chooses… ” But that does not take us much further, particularly if there is no alternative to go to or no-one else to live with or if the person is living in their own home.

If the person lacks capacity to take these decisions, someone else  will  decide what is in their best interests. Thus, someone lacking such capacity is not free to leave by operation of the MCA. That seems clear. Finally, the area and period of confinement is said to be essential, but there is no guidance as to what this means or how these relate to complete supervision and control without freedom to leave. The most helpful aspect of the acid test is that its application to the particular facts of these individuals amounted to a deprivation. The facts of the individual cases may therefore offer some touchstone or guidance for practitioners.

We note with interest a decision of the ECtHR that post-dates the Supreme Court hearing – Chosta v Ukraine (Application no. 35807/05, 14 January 2014) – in which the  ECtHR observed that “relevant objective factors to be considered include the possibility to leave the restricted area,

the degree of supervision and control over a person’s movements and the extent of isolation” (emphasis added). Whilst the first two of these factors are consistent with the twin components of the acid test, the reference to the extent of isolation seems to us to reflect precisely those aspects of relative normality put forward by the Court of Appeal in the Surrey case but rejected by the majority in the Supreme Court.

Implications

The fact that the acid test identified these “ordinary” placements as deprivations of liberty has far-reaching implications. According to the Alzheimer’s Society, there are 200,000 people with dementia in care homes in England and Wales. In addition, between 2012 and 2013 there were over 28,000 people aged 18-64 with learning disability in care and nursing homes. It would seem that all of those unable to give valid consent are now likely to be deprived, necessitating a DOLS authorisation. The same must surely apply to hospitals, with resulting ineligibility issues. It seems particularly odd to think of the unconscious hospital patient receiving life-sustaining treatment as deprived of their liberty, but that may be the consequence of this decision.

The impact of dropping the Article 5 threshold will also reverberate throughout supported living and shared lives schemes. All disabled and vulnerable adults lacking the relevant capacity who receive care or support funded by, or arranged by, a public body may now need to be reviewed to see if the acid test satisfied. Foster carers, children in local authority care, and family members receiving support from health or social services may now be acting unlawfully unless the procedural and substantive safeguards in Article 5 are met. Indeed, the implications for children are far- reaching. Given the relatively limited avenues for authorising a deprivation of liberty in the case of a child, the possibility of a new Bournewood gap – this time for children - arises.

Whether they will “retract the surprise” at being told that a person living in their domestic setting could complain of deprivation of liberty after the consequences are explained, as Lord Neuberger foresees, remains to be seen. If overcoming the ordinary usage of “deprivation of liberty” was difficult for hospital and care home managers, imagine how difficult it will be in these more familial settings. After all, the Court of Appeal has, in a different case, found that those with parental responsibility cannot consent to their child’s deprivation of liberty: RK v BCC [2011] EWCA Civ 1305, [14]. Moreover, according to the MCA Code of Practice, everyone working with and/or caring for an adult who may lack capacity must comply with the MCA (including therefore spouses or other family members).

Going beyond Strasbourg also has implications for the use of the Mental Health Act. Incapacitated informal patients are not free to leave if others are deciding what is in their best interests. Guardianship is vulnerable because patients have no choice over their place of residence and the intensity of their package of care may tip their regime into Article 5. No one can lawfully be deprived under that prescribed legal procedure because, amongst other things, the burden of proof is on the patient not the detaining authority. Although the point has yet to be argued, it is likely to be similarly unlawful to deprive liberty under a community treatment order. The judgment also makes it more difficult for restricted patients to be lawfully conditionally discharged from hospital detention: Secretary of State for Justice v RB [2011] EWCA Civ 1608.  

The MCA seeks to strike a careful balance between empowerment and protection. No-one would deny the importance of  safeguards. The controversy surrounds the extent to which those safeguards found in Article 5 should be used by manipulating the language of “deprivation of liberty”. Whether the increased juridification of care resulting from this decision will lead to better safeguards for those that need it is a question for a later day. Some might say the best safeguards would be regular, unannounced inspections of these care settings with the threat of criminal sanction for ill-treatment and wilful neglect. And let it not be forgotten that those at Winterbourne View were tortured by “carers” despite having the benefit of their procedural and substantive safeguards of Article 5.