P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & Anor [2014] UKSC 19 (19 March 2014)

The Supreme Court considered whether living arrangements for three mentally incapacitated individuals amounted to a deprivation of liberty under Article 5 ECHR. The majority established the 'acid test': continuous supervision and control, and not free to leave, regardless of placement comfort or compliance.

Facts

The appeals concerned three mentally incapacitated adults whose living arrangements had been made by local authorities pursuant to the Mental Capacity Act 2005.

P (Cheshire West)

P, aged 38, had cerebral palsy and Down’s syndrome, requiring 24-hour care. He lived in a spacious bungalow (Z House) with two other residents, with two daytime staff and one waking night staff. He received 98 hours’ additional one-to-one support weekly, attended a day centre, and had outings. He wore a body suit to prevent him interfering with continence pads, and intervention (including occasional physical restraint and finger sweeps to clear his mouth) was required for challenging behaviour.

MIG and MEG (Surrey)

MIG and MEG were sisters with learning disabilities, removed from a neglectful and abusive home. MIG lived with a devoted foster mother who provided intensive support; she would be restrained if she tried to leave (though she never did). MEG lived in a small NHS residential home for adolescents, sometimes required physical restraint, and received tranquillising medication. Both attended a further education unit.

Issues

The central issue was the proper criteria for determining whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty within the meaning of Article 5(1) ECHR and section 64(5) of the Mental Capacity Act 2005. Specifically, the Court had to consider whether:

• The concept of deprivation of liberty is the same for disabled persons as for those without disability;
• The ‘relative normality’ of the placement is relevant;
• The purpose or benevolent character of the arrangements is relevant;
• The compliance or absence of objection of the incapacitated person is relevant.

Arguments

Appellants (Official Solicitor)

Mr Gordon QC submitted that the concept of liberty must be universal; the quality of arrangements should not be confused with whether they constitute deprivation. The ‘concrete situation’ test from HL v United Kingdom required asking whether the person was under continuous supervision and control and not free to leave. The benevolent purpose of confinement is irrelevant to whether there has been a deprivation of liberty, being relevant only to justification.

Respondents (Local Authorities)

Ms Richards QC contended that the distinction between deprivation and restriction is one of degree and intensity, depending on a range of factors including type, duration, effects and manner of implementation. There is no single touchstone, and the Strasbourg jurisprudence (including Nielsen v Denmark and HM v Switzerland) supports a fact-sensitive approach.

Judgment

By a majority of four to three (Lady Hale, Lord Neuberger, Lord Kerr and Lord Sumption; Lord Carnwath, Lord Hodge and Lord Clarke dissenting in part), the Supreme Court allowed both appeals.

Majority Reasoning (Lady Hale)

Lady Hale held that human rights are universal, founded on the inherent dignity of all human beings. The meaning of deprivation of liberty must be the same for everyone, whether or not they have disabilities. She famously stated that

A gilded cage is still a cage.

She rejected the Court of Appeal’s ‘relative normality’ approach in P’s case, which compared P’s life with that of another disabled person. The benevolent purpose of arrangements is irrelevant to whether there has been a deprivation of liberty, following Austin v United Kingdom and Creanga v Romania.

The ‘acid test’ derived from HL v United Kingdom is whether the person is

under continuous supervision and control and was not free to leave.

Factors which are not relevant include: the person’s compliance or lack of objection; the relative normality of the placement; and the reason or purpose behind the placement.

Applying this test, P, MIG and MEG were all deprived of their liberty. Lady Hale emphasised that because of the extreme vulnerability of such persons, the courts should err on the side of caution, ensuring periodic independent checks on whether arrangements are in their best interests.

Lord Neuberger

Lord Neuberger agreed, emphasising the desirability of a focused test. He rejected the four factors advanced by the minority: the degree of intrusion required for protection, the absence of objection, the court’s prior authorisation, and the domestic setting. He noted that twin features of continuous supervision and control and lack of freedom to leave were the essential ingredients of deprivation of liberty.

Lord Kerr

Lord Kerr stressed that the assessment of deprivation of liberty is primarily objective. Liberty means the state of being free from external constraint and does not depend on one’s disposition to exploit freedom or one’s capacity. The relevant comparator is a person of the same age and station whose freedom is not limited.

Minority (Lord Carnwath and Lord Hodge, with Lord Clarke)

The minority held that section 64(5) of the 2005 Act tied the concept more closely to Strasbourg jurisprudence than section 2 of the Human Rights Act 1998 does. Strasbourg had not ruled on cases combining: lack of legal and factual capacity without objection; placement in a small domestic setting; initial court authorisation; and a regime no more intrusive than required. They were concerned that

nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty.

They would have dismissed the appeals concerning MIG and MEG while agreeing that P’s appeal should be allowed.

Implications

The Acid Test

The judgment establishes the ‘acid test’ for deprivation of liberty: whether the person is under continuous supervision and control and is not free to leave. This applies regardless of the nature of the placement, the quality of care, the person’s compliance, or the benevolent purpose.

Universality of Human Rights

The decision strongly affirms that disabled persons enjoy the same right to liberty as others. Restrictions justifiable on grounds of incapacity must nevertheless be subject to proper safeguards under Article 5.

Practical Significance

The ruling has substantial implications for local authorities, NHS bodies, care home providers, foster carers, and the Court of Protection. Significantly more placements (including in supported living, small group homes, and ordinary domestic settings) will require authorisation under Schedule A1 of the Mental Capacity Act 2005 or by the Court of Protection. Lady Hale acknowledged this would substantially increase the number of cases requiring scrutiny but considered such checks essential, not stigmatising.

Limits and Qualifications

Lady Hale noted that similar constraints imposed by parents in the exercise of ordinary parental responsibilities, outside any state framework, would not necessarily constitute deprivation of liberty. The decision concerns persons aged 16 and over within the Mental Capacity Act framework where the state has responsibility.

Wider Importance

This case is of fundamental importance because it ensures that vulnerable adults lacking capacity benefit from the protective procedures of Article 5, including periodic independent review. It rejects any approach that diminishes the protection of human rights by reference to disability or the supposed benevolence of arrangements. The decision triggered a significant rise in deprivation of liberty applications and ultimately prompted legislative reform (the Liberty Protection Safeguards) to address the resulting administrative burden.

Verdict: Both appeals allowed. In P v Cheshire West, the declaration of Baker J that P was deprived of his liberty was restored. In P and Q v Surrey County Council, a declaration was made that the living arrangements of MIG and MEG at the relevant time constituted a deprivation of liberty within the meaning of section 64(5) of the Mental Capacity Act 2005.

Source: P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & Anor [2014] UKSC 19 (19 March 2014)