Landmark Supreme Court cases on deprivations of liberty to start next week

A panel of seven justices at the Supreme Court will next week hear two landmark cases on deprivations of liberty.

The conjoined cases of P and Q (by their litigation friend, the Official Solicitor) v Surrey County Council and P (by his litigation friend the Official Solicitor) (FC) v Cheshire West and Chester Council and another will begin on 21 October and are scheduled to last for three days. The importance of the cases is underlined by the size of the panel, with seven justices rather than the usual five.

The P and Q case relates to sisters who were, at the time of the first instance judgment, 18 and 17 years old respectively. Both P and Q are severely mentally impaired.

Until 2007, both of them lived with their mother. Their lives were dysfunctional and abusive. By the time of the first instance hearing, P was living with a foster carer and Q was living in a specialist NHS children’s home. P and Q’s contact with their mother was restricted by court, and they were not permitted to live with her.

P had her own bedroom at her foster carer’s home. Her bedroom door was never locked. She had never attempted to leave. Were she to attempt to leave, the foster mother would restrain her for her immediate safety. She was not in receipt of medication. She attended college, and was taken on outings.

Q had her own bedroom at the secure children’s home. She occasionally suffered outbursts and sometimes required physical restraint. She was treated with medication, Risperidone, for the purpose of controlling her anxiety. She attended college, and was taken on outings.

Through the Official Solicitor, acting as their litigation friend, the sisters had appealed a declaration made by Mrs Justice Parker in the Court of Protection that the arrangements overseen by Surrey CC were not a deprivation of liberty.

The Court of Appeal ruled in March 2011 that the arrangements put in place for the two sisters did not amount to deprivations of liberty.

Lord Justice Wilson said Mrs Justice Parker had been “clearly correct” to conclude that P was not being deprived of her liberty. He added that the case of Q was “closer to the border of deprivation” by virtue of factors such as she was not living at home, her outbursts – though becoming less frequent – sometimes precipitated the need for physical restraint, and she was in receipt of medication (albeit not forcibly administered) for control of her anxiety.

Following what he called “protracted thought”, Lord Justice Wilson upheld Mrs Justice Parker’s view that there was no deprivation of liberty in Q’s case either. “The small size of the home for adolescents in which she lived; her lack of objection to life there; her attendance at the educational unit; her good contact with such members of her family as were significant for her; and her other, fairly active, social life: such were the main factors which kept her outside Article 5,” he said.

The Supreme Court site says the central issue in P and Q as how the court should determine whether there is a deprivation of liberty for the purposes of the Mental Capacity Act 2005.

The Cheshire West case meanwhile concerns P, a 39-nine year old man with severe physical and learning disabilities who lacks the mental capacity to make decisions as to his care and residence.

In November 2009, he was placed in Z House pursuant to a court order. There is no dispute between the parties that his care package at Z House is in his best interests.

At issue is whether that package imposes such restrictions upon P that he is deprived of his liberty, thereby engaging the protective procedural rights under Article 5 of the European Convention on Human Rights.

Z House is a large and spacious single-level bungalow. P has his own rooms and access to two bathrooms. He continues to attend a day centre four days a week, and a hydrotherapy pool on the fifth weekday, leaving Z House at 9.30am and returning at 5.00pm. He is supported by staff to access community and leisure facilities, for trips to town and to visit his mother.

P has a history of shredding his continence pads and putting them in his mouth. Various techniques have been used to tackle the problem. Non-physical methods are attempted, including dressing P in a onesie with access via a zip at the back. However staff members sometimes have to resort to physical intervention, including inserting a finger into his mouth to remove such material.

In June 2011 Mr Justice Baker ruled that the care plan for P had involved a deprivation of liberty.

However, the local authority successfully overturned the ruling at the Court of Appeal in November 2011.

Lord Justice Munby said Mr Justice Baker had “never compared P’s situation in Z House (where he resided) with the kind of life P would have been leading as someone with his disabilities and difficulties in what for such a person would be a normal family setting”.

He added that the judge had “never grappled with the question whether the limitations and restrictions on P's life at Z House are anything more than the inevitable corollary of his various disabilities. The truth, surely, is that they are not. Because of his disabilities, P is inherently restricted in the kind of life he can lead.”

Lord Justice Munby added that there was a “strong degree of normality” in P’s life at Z House. “Normality, that is, assessed as it must be by reference to the relevant comparator.”

The Supreme Court site describes the key issue in Cheshire West as being the correct approach to determining whether a person is deprived of their liberty under Article 5 of the European Convention on Human Rights.

Once the Supreme Court has ruled on the correct approach, it will consider whether – applying that approach – P was deprived of his liberty.

The seven justices hearing the cases are: Lord Neuberger; Lady Hale; Lord Kerr; Lord Clarke; Lord Sumption; Lord Carnwath; and Lord Hodge.