Supreme Court landmark judgment on what constitutes 'deprivation of liberty'

In an historic judgment The Supreme Court has today (19 March 2014) provided clarification of what constitutes a deprivation of liberty for people who cannot consent to their detention, a ruling which could see extra protection for many thousands of people in local authority care.

The judgment, which followed a 3-day hearing in October, will have a significant impact on people who do not have capacity to make certain decisions, including those with learning disabilities, autism, dementia and brain injury.

The Supreme Court was asked to decide the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty.

In a majority decision, the Court ruled in favour of agreeing that the individuals concerned in the cases before the court, living either in supported accommodation or in foster care, were deprived of their liberty, and accordingly that this deprivation would require periodic independent review.

Article 5 of the European Convention on Human Rights gives people deprived of their liberty important procedural safeguards to ensure their deprivation of liberty is lawful.

A deprivation of liberty should either be authorised by a court or by the procedures known as the Deprivation of Liberty Safeguards, as incorporated into the Mental Capacity Act 2005.

Lady Hale in her judgment said:

“…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.” (Para 46)

Sarah Westoby from the human rights team at law firm Leigh Day said:

“We are pleased with the clarity this judgment provides.

“The Supreme Court has found that the placements of these individuals living in supported accommodation and foster care constituted a deprivation of liberty.

“This decision will have far reaching consequences for those incapacitated individuals living in similar circumstances. Such individuals will now have safeguards in place to protect them and ensure the arrangements made for them are in their best interests.

“The level of compliance with the terms of the judgment remains to be seen, given its widespread implications, along with assessment of whether legislative change is now required to provide a framework for the necessary safeguards needed.

“The House of Lords report published last week highlighted that evidence suggested that thousands, if not tens of thousands, of individuals are deprived of their liberty without the protection of the law and therefore without the safeguards Parliament intended.

"Today’s judgment extends the definition of what constitutes a deprivation of liberty and it will now apply to an even greater number of people. If these individuals are not provided with appropriate checks to render their detention lawful then the local authorities providing their care will be vulnerable to legal challenge.”

Leigh Day is instructed by the AIRE Centre (Advice on Individual Rights in Europe). The AIRE Centre has been granted permission to provide assistance to the Supreme Court on deprivation of liberty in the international and comparative law context.

The ruling came in the case of two severely mentally impaired sisters, aged around 21 and 22, known as P and Q and a separate case of a man in his forties with severe physical and learning disabilities, known as P.

P and Q are 21 and 22 year old sisters. Both P and Q are severely mentally impaired. Until 2007, both of them lived with their mother. Their lives were dysfunctional and abusive.

When their case first came to the Court of Protection in 2009 P was living with a foster carer and Q was living in a specialist NHS children’s home.

The court restricted P and Q’s contact with their mother, 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.

P is a thirty-nine year old man with severe physical and learning disabilities. He 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.

The only dispute 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 ECHR. 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 e.g. 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 bodysuit 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.

Sarah Westoby is the solicitor instructed at Leigh Day, and counsel for the AIRE Centre are Lizanne Gumbel QC, Henry Witcomb and Duncan Fairgrieve from 1 Crown Office Row.