The Court of Appeal handed down judgment on 9 November 2011 in relation to P, a man with cerebral palsy and Down’s Syndrome. The case will be of particular interest to clients as the Court provided guidance about the factors that will be taken into account in determining whether or not someone is considered to be deprived of their liberty in relation to Article 5 of the European Convention on Human Rights.
P is a 39-year-old man who was born with cerebral palsy and Down’s Syndrome. He had a history of cerebral vascular accidents. He has significant physical and learning disabilities. He lacks capacity to make decisions in relation to his care and residence.
P lived with his mother from birth until 2009 but, from December 2008, her health began to deteriorate to the point where the local authority concluded that she was no longer able to care for P. The local authority thereafter made arrangements for his care provision in a care home.
The matter first went to court in September 2009 and His Honour Judge Allweis declared, on an interim basis, that it was lawful and in P’s best interests for him to reside at the local authority establishment at which he was then placed, or in any other placement with the local authority, until a final hearing took place.
In November 2009, P moved to live at Z House, where he remains.
The matter in relation to whether P was deprived of his liberty came before the High Court in April 2011 for final determination. Mr Justice Baker declared that P had been deprived of his liberty and that it was lawful for him to continue to reside at Z House.
The local authority appealed the High Court’s decision in relation to the deprivation of liberty.
P had a long history in the care home of exhibiting challenging behaviour by being uncooperative and harming himself and others. Specific concerns included:
- Accessing/destroying continence pads, grabbing or smearing the contents (faeces) and placing them in his mouth or ingesting it.
- Picking at his skin causing wounds.
- Aggression towards others (including trying to throw things).
- Banging/slapping his head.
- Becoming un-cooperative (including sitting down on the floor, including in ways that meant that he became unsafe).
Staff would intervene to prevent these behaviours. The details are set out at paragraphs 8 – 10 of the judgment. For example, he was clothed on occasions in an all in one suit that zipped up the back, in order to prevent him accessing his continence pads.
Other relevant aspects of P’s care plan included P going to a day centre (with staff escort) and P’s evenings involving such activities as going swimming, going to a club and going to a local pub for a curry night. Importantly, it was noted that although P cannot leave Z House without a member of staff accompanying him, he had 98 hours a week of 1:1 staff support to facilitate this “whenever he chooses”.
It was not disputed within the case that P was in an appropriate placement. Z House was commented upon favourably throughout the judgment.
Factors for and against an assessment of deprivation of liberty
Various arguments were presented to the Court which help to illustrate common considerations for those assessing whether there is a deprivation of liberty or not.
The local authority pointed to the following as indicating that there was no deprivation of liberty :
- P’s move to Z House was planned carefully and conscientiously. No force, threats, sedation or subterfuge were involved.
- Z House is a large and spacious bungalow.
- P has his own room, which has been personalised and is equipped with his possessions such as his own music system. Occupational therapy ensures that P’s accommodation is as homely as possible.
- P has shared use of communal space and free access to the entire building. P and the three other residents often sit and eat together. There is a garden which P can use whenever he likes.
- Z House is situated close to P’s family so they can visit regularly. Contact with his family is encouraged.
- P is sociable and has the opportunity to mix with staff and other residents.
- The external doors of the property are unlocked during the day but locked at night for security reasons.
- P has never attempted to leave the property.
- P needs prompting and assistance with all activities of daily living, including nutrition, mobility, personal hygiene and continence. He requires 1:1 close personal supervision with self-care and sometimes 2:1 care to help with his continence problems.
- The 98 hours of extra care and support provided to him promote his freedom of movement.
- He attends a day centre Monday to Friday, leaving Z House at about 9.30am and returning about 5.00 pm.
- He takes part in other activities such as pub lunches, visits to the park and garden centres. He enjoys going out into the community. On these occasions, 1:1 support is provided because P has no concept of danger.
- His behaviour is not controlled by medication.
All this, said the local authority, amounted to the most normal life possible for P.
P’s counsel pointed to the following to indicate there was a deprivation:
- Every aspect of P’s life is monitored and supervised by those working for the local authority. There is complete and effective control over his care and movements.
- P is obliged to live at Z House. He cannot return to his mother’s care, nor move anywhere else.
- He is unable to leave the premises unescorted.
- He has little privacy within Z House. Every aspect of his personal care is supported by staff.
- Z House records show that his behaviour is challenging and requires management. A wide range of measures is used for that purpose.
- Some of his behaviour is extremely challenging and needs urgent intervention, including on occasions physical restraint.
- In particular, his tendency to self-harm may require physical intervention. On occasions he can assault others unless restrained. In the community, he is often restrained in a wheelchair by a strap.
- Furthermore, his tendency to tear off his continence pads and ingest bits of padding and the contents requires a range of measures, including the wearing of a bodysuit that restricts his freedom, and on occasions, in his own interests, intrusive physical interventions, which can include having his arms held by one member of staff whilst a second inserts a gloved finger into his mouth to forcibly remove any retained material.
- The use of restraint is part of his care package. The local authority has been prompted in the course of this case to introduce a new policy which clarifies and articulates the circumstances in which restraint may be used.”
For those of you who are interested in the details, you will find fascinating references made by Lord Justice Mumby to cases relating to domestic servitude dating back to 1891 or even just 1969! Before all the authors were born we might add!
He has also considered and highlighted the most helpful aspects of many recent cases on deprivation of liberty including:
- HM v Switzerland (2002)
- HL v United Kingdom (2004)
- Stork v Germany (2005)
- DE and JE v Surrey County Council (2006)
- Secretary of State for the Home Department v JJ and others (2007)
- Austin and another v Commissioner of the Police of the Metropolis (2009)
- G v E, A Local Authority and F (2010)
- Re MIG and Meg (2010)
- Re A and C (Equality and Human Rights Commission Intervening) (2010)
- P and Q v Surrey County Council (2011)
- London Borough of Hillingdon v Neary (2011)
The judgment is divided up to look at different areas of deprivation of liberty as follows:
- Basic Principles
- Context and Comparator
- The Domestic Context
- Purpose, Motive and Intention
- Normality and Relative Normality
- Case Law
Guidance from case law to date
Lord Justice Mumby very helpfully draws together threads from previous case law relating to deprivation of liberty as follows:
- The starting point is the “concrete situation”, taking account of a whole range of criteria such as the “type, duration, effects and manner of implementation” of the measure in question. The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, not nature or substance.
- Deprivation of liberty must be distinguished from restraint. Restraint by itself is not deprivation of liberty.
- Account must be taken of the individual’s whole situation.
- The context is crucial.
- Mere lack of capacity to consent to living arrangements cannot in itself create a deprivation of liberty.
- In determining whether or not there is a deprivation of liberty, it is legitimate to have regard both to the objective “reason” why someone is placed and treated as they are and also to the objective “purpose” (or “aim”) of the placement.
- Subjective motives or intentions, on the other hand, have only limited relevance. An improper motive or intention may have the effect that what would otherwise not be a deprivation of liberty is in fact, and for that very reason, a deprivation. But a good motive or intention cannot render innocuous what would otherwise be a deprivation of liberty. Good intentions are essentially neutral. At most they merely negative the existence of any improper purpose or of any malign, base or improper motive that might, if present, turn what would otherwise be innocuous into a deprivation of liberty. Thus the test is essentially an objective one.
- In determining whether or not there is a deprivation of liberty, it is always relevant to evaluate and assess the “relative normality” (or otherwise) of the concrete situation.
- But the assessment must take account of the particular capabilities of the person concerned. What may be a deprivation of liberty for one person may not be for another.
- In most contexts (as, for example, in the control order cases) the relevant comparator is the ordinary adult going about the kind of life which the able-bodied man or woman on the Clapham omnibus would normally expect to lead.
- But not in the kind of cases that come before the Family Division or the Court of Protection. A child is not an adult. Some adults are inherently restricted by their circumstances. The Court of Protection is dealing with adults with disabilities, often, as in the present case, adults with significant physical and learning disabilities, whose lives are dictated by their own cognitive and other limitations.
- In such cases the contrast is not with the previous life led by X (nor with some future life that X might lead), nor with the life of the able-bodied man or woman on the Clapham omnibus (a phrase commonly used to describe the “average” or “usual” adult). The contrast is with the kind of lives that people like X would normally expect to lead. The comparator is an adult of similar age with the same capabilities as X, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations as X. Likewise, in the case of a child the comparator is a child of the same age and development as X.
- The fact that a domestic setting can involve a deprivation of liberty does not mean that it very often will. Indeed, typically it will not. In the kind of context with which we are here concerned – the care of children or vulnerable adults – there will normally be no deprivation of liberty if someone is being cared for by their parents, friends or relatives in a family home. Nor will there normally be any deprivation of liberty if they are in a foster placement or its adult equivalent or in the kind of small specialist sheltered accommodation.
This led him to conclude that there was not a deprivation of liberty.
He also commented, in relation to the spectrum of cases relating to a deprivation of liberty (beginning where there was obviously no deprivation through to there clearly being a deprivation), that it would only be in borderline cases that protracted investigations would be required and that he would expect that the Court of Protection will be able to deal with most cases simply and quickly. Lord Justice Munby advised against, in most cases, an exhaustive examination of all facts. He was concerned that the call to examine the facts of a case can too easily lead to the worrying and ultimately stultifying conclusion that the decision in every case can safely be arrived at only after a minute examination of all the facts in enormous detail.
In one respect, the first instance decision was a surprise and despite the lack of helpful case law prior to this case, we found it difficult to see how there was a deprivation of liberty.
This case provides very helpful guidance to those involved in decision making about the placement and care of patients who might be deprived of their liberty as a result of care arrangements in place.
The case confirms that choice of comparator in order to determine whether there is a deprivation of liberty is crucial and that the comparator is not the “normal” person but the expected situation of someone in a similar position.
We do not consider however that the case lends itself to being read in a way that indicates that any patient who might be receiving a care package that the decision maker would deem as “relatively normal” for a person in the patient’s position will automatically be exempt from a deprivation of liberty. Decision makers must also consider the degree and intensity of any restrictions in place. The fact remains that each case must be decided on its own facts.
This remains a complex area of law. We would be delighted to organise training on the subject of deprivation of liberty or the Mental Capacity Act more generally.