(1) P v Cheshire West and Chester Council and another; (2) P and Q v Surrey County Council   UKSC 19 (Supreme Court ((Lord Neuberger, Lady Hale, Lords Kerr, Clarke, Sumption, Carnwath and Hodge))
Article 5 ECHR – Deprivation of liberty
The Supreme Court has now determined the Official Solicitor’s appeals against the conclusions of the Court of Appeal that MIG, MEG and P were not deprived of their liberty. The appeals were allowed unanimously in the case of Mr P, and by a majority of 4 to 3 in the cases of P and Q (or MIG and MEG). The lead judgment was given by Lady Hale, with whom Lord Sumption agreed. Lords Neuberger and Kerr expressly agreed with Lady Hale in their separate concurring judgments. Lords Carnwath and Hodge gave a joint dissenting judgment in the cases of P and Q; they were, however, satisfied that Baker J had directed himself as to the correct legal principles in the case of Mr P (even if they might not have reached the
same decision), so the decision of the Supreme Court was unanimous in relation to allowing the appeal on P’s behalf. Lord Clarke also dissented in the case of P and Q, giving a separate judgment. In total, therefore, there are four judgments for the majority, albeit all of them state themselves to be in agreement with Lady Hale.
The ultimate question
The ultimate question before the Supreme Court was, in some ways, simple to pose: does liberty mean something different to an adult who is (for reasons of disability) unable to take advantage of it? Or does liberty mean the same for all? As Lady Hale put it (at paragraph 33): “The first and most fundamental question is whether the concept of physical liberty protected by article 5 is the same for everyone, regardless of whether or not they are mentally or physically disabled.”
Lady Hale had no hesitation in holding that it was:
“45. [.] 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. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.
46. Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. But, as it seems to me, 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, subject 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.”
Lord Kerr, who agreed with Lady Hale and Lord Neuberger (and who had posed the ultimate question during the course of argument), noted that:
“Liberty means 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).
Guidance from Strasbourg
Parliament by enacting s.64(5) MCA 2005 tied the operation of the DOLS regime not to a statutory definition of when it was to operate, but rather to a definition that required judges to seek to determine what, exactly, the European Court of Human Rights would consider constituted a deprivation of liberty. Both s.64(5) MCA 2005 and the consequent requirement identified to seek to find clear guidance from Strasbourg gave rise to considerable discussion in the judgments. Indeed,
perhaps the main point of division between the majority and the minority was whether such guidance existed and, if did not, what the Supreme Court should do in consequence.
It was common ground that, as Lady Hale – rightly
– noted after summarising the jurisprudence of the ECtHR:
“32. The Strasbourg case law, therefore, is clear in some respects but not in others. The court has not so far dealt with a case combining the following features of the cases before us: (a) a person who lacks both legal and factual capacity to decide upon his or her own placement but who has not evinced dissatisfaction with or objection to it; (b) a placement, not in a hospital or social care home, but in a small group or domestic setting which is as close as possible to “normal” home life; and (c) the initial authorisation of that placement by a court as being in the best interests of the person concerned. The issue, of course, is whether that authorisation can continue indefinitely or whether there must be some periodic independent check upon whether the placements made are in the best interests of the people concerned.”
The majority went on to find that it was possible to discern clear principles from the Strasbourg jurisprudence which were applicable to the circumstances of the cases before them.
The acid test
Lady Hale “entirely sympathised” with the desire of Munby LJ to produce an acid test and thus to avoid the minute examination of the living arrangements of each mentally incapacitated person for whom the state makes arrangements which might otherwise be required. Asking herself what the particular features of their
concrete situation on which focus is needed, she held that:
“The answer, as it seems to me, lies in those features which have consistently been regarded as ‘key’ in the jurisprudence which started with HL v United Kingdom 40 EHRR 761: that the person concerned ‘was under continuous supervision and control and was not free to leave’ (para 91)” (paragraph 49)
Lady Hale found to be helpful the intervention of the National Autistic Society and Mind, in which they listed the factors which each of them has developed as indicators of when there is a deprivation of liberty. As she noted:
“Each list is clearly directed towards the test indicated above. But the charities do not suggest that this court should lay down a prescriptive list of criteria. Rather, we should indicate the test and those factors which are not relevant. Thus, they suggest, the person’s compliance or lack of objection is not relevant; the relative normality of the placement (whatever the comparison made) is not relevant; and the reason or purpose behind a particular placement is also not relevant. For the reasons given above, I agree with that approach” (paragraph 50).
Lord Neuberger, in a separate judgment agreeing with Lady Hale, recognised the importance of having as much authoritative guidance as possible to decide whether the circumstances of a particular case involve a deprivation of liberty falling within article 5 or a restriction on liberty falling outside article 5. As he noted (paragraph 60), “[w]hether a particular case involves deprivation or restriction must depend on the specific facts of that case, but that does not mean that there can be no focussed guidance. It is also true that, however clear the guidance, there will be cases where it will be difficult to decide which side of the line the facts fall, but that is not a reason for
the courts not seeking to minimise the uncertainty. On the contrary.”
Lord Neuberger, who agreed with Lady Hale that the Strasbourg court decisions indicated that the twin features of continuous supervision and control and lack of freedom to leave are the essential ingredients of deprivation of liberty (in addition to the area and period of confinement), went on to dissect the reasons advanced by Lords Carnwath and Hodge for distinguishing the facts of the cases before the Supreme Court from those Strasbourg cases in which those propositions had been repeated. They identified four factors, and against each we give the reasons why Lord Neuberger disagreed with them:
- the person concerned lacks capacity to decide upon her placement but has not evinced dissatisfaction with or objection to it.
As Lord Neuberger noted, this conclusion would mean:
“67… that, however confining the circumstances, they could not amount to a deprivation of liberty if the person concerned lacked the capacity to object. That cannot possibly be right. Alternatively, there would be a different test for those who were unable to object and those who could do so. That would be a recipe for uncertainty.
68. In addition, the notion that the absence of objection can justify what would otherwise amount to deprivation of liberty is contrary to principle. It is true, and indeed sensible, that a person’s consent (provided that it is freely and properly given) may serve to defeat a contention that she has been deprived of her liberty. However, it involves turning that principle on its head to say that the absence of objection will justify what would otherwise be a deprivation of liberty – save in those rare circumstances where the absence of objection
can be said to amount to consent, as in Mihailovs v Latvia, paras 138-139.” He further found that it would tend to undermine the universality of human rights to which Lady Hale referred.
the placement is in a small group or domestic setting which is as close as possible to “normal” home life;
As Lord Neuberger noted (at paragraph 71), “it is a fair point that the Strasbourg court has never had to consider a case where a person was confined to what may be described as an ordinary home. However, I cannot see any good reason why the fact that a person is confined to a domestic home, as opposed to a hospital or other institution, should prevent her from contending that she has been deprived of her liberty.”
Lord Neuberger noted that, in the case of children living at home, what might otherwise be a deprivation of liberty would normally not give rise to an infringement of article 5 because it will have been imposed not by the state, but by virtue of what the Strasbourg court has called “the rights of the holder of parental authority.” He noted, though, that it was fair to say that;
“while this point would apply to adoptive parents, I doubt that it would include foster parents (unless, perhaps, they had the benefit of a residence order). But in the great majority of cases of people other than young children living in ordinary domestic circumstances, the degree of supervision and control and the freedom to leave would take the situation out of article 5.4. And, where article 5.4 did apply, no doubt the benignly intimate circumstances of a domestic home would frequently help to render any deprivation of liberty easier to justify.”
- a court authorised that placement for the best interests of the person concerned;
Lord Neuberger was not impressed:
“The court’s involvement in cases such as those to which these appeals relate is not equivalent to that of a court sentencing a criminal to a specific term of imprisonment. It is deciding that the circumstances of an innocent and vulnerable person, suffering from disability, are such that there must be an interference with his liberty. If that interference would otherwise amount to a deprivation of liberty, I find it hard to understand why it should be otherwise simply because the court has approved it. The court’s approval will almost always justify the deprivation from its inception, but, again, it is hard to see why it should continue to justify it for a potentially unlimited future. The only reason which can be advanced to justify such a conclusion is, as I see it, based on the purpose of the interference with liberty which brings one back to the observations in the Grand Chamber referred to in para 8 above.”
- the regime is no more intrusive or confining than is required for the protection and well- being of the person concerned.
As Lord Neuberger noted (paragraph 66), ‘purpose’ was comprehensively rejected by Strasbourg in Austin and, more recently, Creanga v Romania (2012) 56 EHRR 361
Lord Kerr agreed with Lady Hale and Lord Neuberger, concluding that:
“87. … for the reasons given by Lady Hale, it is apparent that two central features of the current Strasbourg jurisprudence point clearly to the conclusion that there is a deprivation of liberty in these cases. These are that the question of whether there has been a deprivation is to be answered primarily by
reference to an objective standard and that the subjective element of the test is confined to the issue of whether there has been a valid and effective consent to the restriction of liberty. I do not accept that this clear guidance can be substituted with an “ordinary usage” approach to the meaning of deprivation of liberty. If deprivation of liberty is to be judged principally as an objective condition, then MIG, MEG and P are unquestionably subject to such deprivation, no matter how their situation might be regarded by those “using ordinary language.”
The individual cases Mr P
P was 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 had lived in a staffed bungalow with other residents near his home and had one to one support to enable him to leave the house frequently for activities and visits. Intervention was sometimes required when he exhibits challenging behaviour. Baker J had held that these arrangements did deprive him of his liberty but that it was in P’s best interests for them to continue. On the Council’s appeal, 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.
Lady Hale found that Baker J had, in substance, applied the right test, derived from HL v United Kingdom, and his conclusion that “looked at
overall, P is being deprived of his liberty” (para 60) should be restored (paragraph 51).
Lords Neuberger and Kerr did not address the specific facts of the case of Mr P, simply agreeing with Lady Hale.
Lords Carnwath and Hodge indicated that they considered that Baker J had directed himself correctly as to the law, and even if they might not have reached the same decision, agreed that Mr P’s appeal should be allowed.
P and Q (MIG and MEG)
P and Q (otherwise known as MIG and MEG) were sisters who became the subject of care proceedings in 2007 when they were respectively 16 and 15. Both had learning disabilities. 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, Parker J 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.
Lady Hale, considering their cases, held that:
“54. If the acid test is whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives, then the truth is that both MIG and MEG are being deprived of their liberty. Furthermore, that deprivation is the responsibility of the state. Similar constraints would not necessarily amount to a deprivation
of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions.”
Lady Hale noted that:
“55. Several objections may be raised to the conclusion that both MIG and MEG are being deprived of their liberty. One is that neither could survive without this level of supervision and control: but that is to resurrect the comparison with other people sharing their disabilities and to deny them the same concept of liberty as everyone else. Another is that they are both content with their placements and have shown no desire to leave. If the “tacit acceptance” of the applicant was relevant in Mihailovs, why should the same tacit acceptance of MIG and MEG not be relevant too?
Lady Hale distinguished Mihailovs because:
“he had a level of de facto understanding which had enabled him to express his objections to his first placement. The Strasbourg court accepts that there are some people who are not capable of expressing a view either way and this is probably the case with both MIG and MEG. As HL 40 EHRR 761 shows, compliance is not enough. Another possible distinction is that, if either of them indicated that they wanted to leave, the evidence was that the local authority would look for another placement: in other words, they were at least free to express a desire to leave” (paragraph 55).
Lady Hale held that none of these suggested distinctions were very satisfactory, however, as she went on:
“56… Nor, in my view, should they be. It is very easy to focus upon the positive features of these placements for all three of the appellants. The local authorities who are responsible for them have no doubt done the best they could to make their lives as happy and fulfilled, as well as safe, as they possibly could be. But the purpose of article 5 is to ensure that people are not deprived of their liberty without proper safeguards, safeguards which will secure that the legal justifications for the constraints which they are under are made out: in these cases, the law requires that they do indeed lack the capacity to decide for themselves where they should live and that the arrangements made for them are in their best interests. It is to set the cart before the horse to decide that because they do indeed lack capacity and the best possible arrangements have been made, they are not in need of those safeguards. If P, MIG and MEG were under the same constraints in the sort of institution in which Mr Stanev was confined, we would have no difficulty in deciding that they had been deprived of their liberty. In the end, it is the constraints that matter.”
Lady Hale concluded with an observation upon policy. Because of the extreme vulnerability of people such as P, MIG and MEG, she believed that it was necessary to err on the side of caution in deciding what constitutes a deprivation of liberty in their case:
“56. They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the Deprivation of Liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their
equal dignity and status as human beings like the rest of us.”
Lord Neuberger did not address the specific facts of the cases of MIG and MEG, simply agreeing with Lady Hale.
Lord Kerr in his separate concurring judgment was the only member of the majority to rely upon a comparator, in order to answer the question of whether MIG and MEG were deprived of their liberty:
“77. The question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place.
78. All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any child or young person of similar age, their liberty would not be restricted, whatever their level of disability. As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are – and have to be – applied to them. There is therefore a restriction of liberty in their cases. Because the restriction of liberty is – and must remain – a constant feature of their lives, the restriction amounts to a deprivation of liberty.
79. Very young children, of course, because of their youth and dependence on others, have – an objectively ascertainable – curtailment of
their liberty but this is a condition common to all children of tender age. There is no question, therefore, of suggesting that infant children are deprived of their liberty in the normal family setting. A comparator for a young child is not a fully matured adult, or even a partly mature adolescent. While they were very young, therefore, MIG and MEG’s liberty was not restricted. It is because they can – and must – now be compared to children of their own age and relative maturity who are free from disability and who have access (whether they have recourse to that or not) to a range of freedoms which MIG and MEG cannot have resort to that MIG and MEG are deprived of liberty.”