All three individuals at the centre of the landmark cases of P & Q and Cheshire West were deprived of their liberty and so should benefit from the relevant protections of the Mental Capacity Act 2005, the Supreme Court has ruled.
The eagerly-awaited judgment 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 is expected to have major impact on local social services authorities.
The P and Q case involved two sisters (also known as MIG and MEG) with learning disabilities. They lived with their mother until 2007 when they were respectively 16 and 15.
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MIG lived with a foster mother and went to a further education unit daily. She had her own bedroom, the door of which was never locked. 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 secure residential home for learning disabled adolescents with complex needs. She sometimes required physical restraint and received tranquillising medication for the purpose of controlling her anxiety. She attended college and went on outings.
When the care proceedings were transferred to the Court of Protection in 2009, the judge 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.
But by a majority of four to three, the Supreme Court has held that these arrangements in P & Q amounted to deprivations of liberty.
Under the MCA 2005 a deprivation must be authorised by the Court of Protection or by the deprivation of liberty safeguards (DoLS) and subject to regular independent checks.
Lady Hale, Vice-President of the Supreme Court, gave the main judgment. Lord Sumption agreed with her, as did – in additional judgments – Lord Neuberger (President) and Lord Kerr. The dissenting judges were Lord Carnwath and Lord Hodge in a joint judgment, and Lord Clarke in an additional judgment.
In the Cheshire West case P was an adult born with cerebral palsy and Down’s syndrome who required 24-hour care. Until he was 37 he lived with his mother but when her health deteriorated the local social services authority obtained court orders that it was in P’s best interests to live in accommodation arranged by the authority.
In November 2009 he began living at Z House, a staffed bungalow with other residents near his home. He had one to one support to enable him to leave the house frequently for activities and visits for example to town or to see his mother.
Intervention was sometimes required when he exhibited challenging behaviour, such as shredding his continence pads and putting them in his mouth.
Mr Justice Baker held that these arrangements did deprive him of his liberty but that it was in P’s best interests for them to continue. The Court of Appeal overturned this ruling, substituting a declaration that the arrangements did not involve a deprivation of liberty. This followed comparison of P’s circumstances with another person of the same age and disabilities.
The Supreme Court unanimously allowed the appeal in this case.
In her judgment Lady Hale said it was axiomatic that people with disabilities, both mental and physical, had 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,” she said.
Lady Hale added that the right to physical liberty contained in Article 5 of the European Convention on Human Rights was a right not to be deprived of that physical liberty. She said what it meant to be be deprived of liberty “must be the same for everyone, whether or not they have physical or mental disabilities”.
The judge continued: “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.”
For that reason, Lady Hale rejected the ‘relative normality’ approach taken by the Court of Appeal in Cheshire West.
She said the key features in the jurisprudence since HL v United Kingdom was whether the person concerned “was under continuous supervision and control and was not free to leave”.
Lady Hale agreed with submissions made by the National Autistic Society and Mind that the individual’s compliance or lack of objection was not relevant, and the reason or purpose behind a particular placement was also not relevant.
She said the Court of Appeal should not have set aside the judge’s ruling in Cheshire West. The judge had applied the right test in substance and so his conclusion that P was being deprived of his liberty should be restored.
In the P & Q case, Lady Hale said: “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.”
It was very easy to focus upon the positive features of these placements for all three of the appellants, Lady Hale said. “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 Vice-President of the Supreme Court added, “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 was to “set the cart before the horse” to decide that because they did lack capacity and the best possible arrangements had been made, they were not in need of the safeguards.
Lady Hale said it was necessary to “err on the side of caution” in deciding what constitutes a deprivation of liberty, given the extreme vulnerability of P, MIG and MEG.
“They need a periodic independent check on whether the arrangements made for them are in their best interests,” she suggested.
“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.”
The dissenting judges – Lord Carnwath, Lord Hodge and Lord Clarke – would have upheld the decision of the judge in both cases.
Lord Carnwath and Lord Hodge argued that the degree of intrusion – ie whether it was no more intrusive or confining than was required for the protection and well-being of the person concerned – was relevant to the concept of deprivation of liberty.
The two justices said they saw the attractions of a universal test, applicable to all regardless of any physical or mental disabilities, as proposed by Lady Hale. But they said it was not a concept they could find reflected in the Strasbourg cases. “The court has remained wedded to a case-specific test.”
Lord Carnwath and Lord Hodge said they were concerned that nobody using ordinary language would describe persons living happily in a domestic setting, like MIG and MEG, as being deprived of their liberty.
Although they agreed with some of the criticisms made of the Court of Appeal’s relevant comparator approach, they said they understood what the judges were striving to achieve.
Mark Lever, chief executive of the National Autistic Society, said: "Today's ruling is a victory for the rights of vulnerable people. This landmark judgment makes it clear that people with autism have the same rights as anyone else: what counts as a deprivation of liberty is the same for anyone, regardless of whether they have a disability or mental health problems.”
He said the DoLS were underused, leaving the rights of many vulnerable people at risk. "Today's judgment marks an important step to address this. We now have an acid test from the highest court in the land clarifying what counts as a deprivation of liberty. We call on the government to urgently issue clear guidance to care providers and local authorities so that they can implement this judgment.”