People with disabilities have the same rights as the rest of society, the Supreme Court affirmed today in a landmark ruling on ‘deprivation of liberty’.
Judgment was given this morning in two cases, P, a man with severe physical and learning disabilities, and P and Q, teenage sisters with severe mental handicaps, in foster and local authority care.
The appeals concerned the criteria for judging whether living arrangements made for mentally incapacitated people amount to a deprivation of liberty.
The court ruled that severely disabled people cannot be deprived of their liberty without proper safeguards, even if their living arrangements are benevolent. It found that, where the person concerned is ‘under continuous supervision and control and is not free to leave’, they are therefore deprived of their liberty.
Under the Mental Capacity Act 2005, safeguards must be put in place where people are deprived of their liberty. Their care regime must be regularly reviewed to ensure it remains appropriate and in the person’s best interest.
The Supreme Court, led by its deputy president Lady Hale, said: ‘The person’s compliance or lack of objection, the relative normality of the placement and the purpose behind it are all irrelevant’ to determining whether a person is deprived of their liberty.
‘Human rights have a universal character and physical liberty is the same for everyone, regardless of their disabilities,’ she said.
‘What would be a deprivation of liberty for a non-disabled person is also a deprivation for a disabled person,’ said the court
Lady Justice Hale added: ‘It is axiomatic that people with disabilities, both mental and physical, have the same rights as the rest of the human race. 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.’
Hale added: ‘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.’
The Supreme Court, unanimously in the appeal of P, and by a majority of four to three in the appeal of MIG and MEG, allowed the appeals. The ruling means P, Q and P, who are unable to leave their homes without supervision, must now have their care arrangements periodically and independently checked to ensure the restrictions are necessary.
The Equality and Human Rights Commission gave expert evidence in the case, submitting that disabled people do not have fewer rights because of their impairments and were in need of special protection given the vulnerability of their situations.
Its chief legal officer Rebecca Hilsenrath (pictured) welcomed the judgment and said: ‘This decision makes it clear that care arrangements must be checked and gives protection to the most vulnerable in society.’
Hilsenrath said: ‘The rights set out in the European convention [on human rights] are to be guaranteed to everyone. They are premised on the inherent dignity of all human beings. Far from disability being used to deny people rights, it places a duty on the state and others to cater for their special needs.’
Mathieu Culverhouse, a specialist Court of Protection lawyer at Irwin Mitchell who acted for P’s mother, said the judgment provides ‘much needed clarity’ on the issue of deprivation of liberty.
‘The Supreme Court has provided a simple test to decide if the individual is deprived of their liberty which will be far easier to apply than the previous test and which will afford far greater protection to vulnerable people,’ he said.
‘This case now sets a precedent that anyone who meets the new legal test will be considered to be deprived of their liberty and subject to a protective care regime.’
The judgment comes in the wake of a House of Lords report on the working of the Mental Capacity Act 2005, which expressed concern that the act’s deprivation of liberty safeguards are ‘poorly drafted… not well understood and poorly implemented’.
Meanwhile, the head of the family court, Sir James Munby yesterday called for reforms to increase transparency of the Court of Protection.
He told the Commons Justice Committee that it is of ‘continuing concern’ that the need to change the rules to increase the openness of the court, allowing greater media access, has so far ‘fallen on deaf ears’.