The Supreme Court has recently issued a major judgment on the criteria for deciding whether living arrangements for those with mental incapacity are in fact a deprivation of liberty, even when the arrangements are as comfortable as circumstances permit. If there is such a deprivation in law, then this must be authorised either by a court or by statutory safeguards in the Mental Capacity Act 2005.
Lady Hale gave the leading judgment on 19 March in P (by his litigation friend, the official solicitor) v Cheshire West and Chester Council and another; P and Q (by their litigation friend, the official solicitor) v Surrey County Council  UKSC 19. According to Mark Palethorpe, director of strategic commissioning at Cheshire West and Chester Council, this will have ‘huge’ consequences ‘for health and social care nationally, both financially and in terms of care processes’.
The Cheshire case concerned P, an adult born with cerebral palsy and Down’s syndrome requiring 24-hour care. After P had initially lived with his mother until he was 37, the authority then obtained orders from the Court of Protection that it was in his best interests to live in accommodation arranged by the council.
Since November 2009, P has lived in a staffed bungalow together with other residents with one-to-one support so that he can leave the premises frequently for activities and visits. P required assistance with all the activities of daily living, such as getting about, eating, personal hygiene and continence, and wore continence pads.
As Lady Hale noted: ‘Because of his history of pulling at these [continence pads] and putting pieces in his mouth, he wore a “body suit” of all-in-one underwear which prevented him getting at the pads.’ Although he was not on tranquillising medication, he also required intervention to deal with other types of challenging behaviour. Baker J found that although P was deprived of his liberty, the arrangements were in his best interests. Subsequently, however, the Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty (see  EWCA Civ 1257). P appealed.
As to Surrey County Council, this concerned sisters with learning disabilities (known as MIG and MEG) who became subject to care proceedings when respectively aged 16 and 15. MIG was placed with a foster mother to whom she was devoted, and although she never attempted to leave the foster home would have been restrained from so doing had she tried. MEG had been moved from foster care to a residential home for learning-disabled adolescents with complex needs.
Occasionally she required physical restraint and received tranquilising medication. Parker J in the Court of Protection found that these living arrangements were in the sisters’ best interests and did not amount to a deprivation of liberty. This was upheld by the Court of Appeal ( EWHC 785 (Fam)). The sisters appealed.
Article 5(1) of the European Convention on Human Rights (ECHR) provides that everyone has the right to liberty and security of person, and that no one shall be deprived of their liberty save in specified cases (including the lawful detention of persons of unsound mind) and in accordance with a procedure prescribed by law. By section 64(5) of the Mental Capacity Act 2005, references to deprivation of a person’s liberty have the same meaning as in article 5(1) of the ECHR.
Given that the purpose of section 64(5) was to avoid a violation identified in the leading case of HL v United Kingdom (2004) 40 EHRR 761 (treatment of severely mentally disabled adult after informal hospital admission amounted to deprivation of liberty), Lady Hale said that ‘it seems clear that we are expected to turn to the jurisprudence of the Strasbourg court to find out what is meant by a deprivation of liberty in this context’.
The Strasbourg court has established general principles relating to the deprivation of liberty of people with a mental disorder or disability, including the importance of not confusing benevolent justification of care arrangements with the concept of deprivation of liberty. The key feature is whether the person is under continuous supervision and is not free to leave. However, that court has yet to determine the instant situation of persons without capacity appearing content with their care placement which has been initially authorised by a court.
View of Supreme Court
The Supreme Court, unanimously in the case of P and by a four-to-three majority for MIG and MEG, allowed the appeals. In Lady Hale’s view it was ‘axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race’. But while sometimes those rights have to be limited or restricted because of the disabilities, ‘the starting point should be the same as that for everyone else’.
This, said Lady Hale, ‘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’.
And, in Lady Hale’s view, deprivation of liberty ‘must be the same for everyone, whether or not they have physical or mental disabilities’. For ‘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 agreed that a person’s compliance or lack of objection was irrelevant and neither was the reason or purpose behind a particular placement.
Lords Carnwath, Hodge and Clarke (dissenting) would have upheld the decision of the judge in both cases. Lords Carnwath and Hodge were ‘concerned that nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty’. And they were ‘struck by how the judges in the courts below, with far more experience than we ourselves can claim, have laboured to keep the concept of deprivation of liberty in touch with the ordinary meaning of those words’.
This decision, rightly described as a landmark judgment, will undoubtedly be welcomed by all with relevant disabilities, and their carers and representatives. Local and other authorities with responsibilities for such vulnerable people will also be relieved at the clarification of meaning of ‘deprivation of liberty’. For, as Palethorpe said, this was something ‘which health and social care professionals across the country have grappled with for some time’.
There is equally, though, concern at the significant cost and procedural implications for authorities across the land, particularly in this time of straitened public finance. For, as Palethorpe noted, those who previously ‘would not have been subject to a deprivation of liberty order will now be so’. Such is the power of senior courts to transform the legal landscape.
Dr Nicholas Dobson is a consultant at Freeth Cartwright