This case note reviews the decision of the Supreme Court in P v Cheshire West and Chester Council and another’ P and Q v Surrey County Council . This is an important case in the field of health and social care. It simplifies the meaning of ‘deprivation of liberty’ in the context of social care and extends safeguards to mentally incapacitated adults for whom the state has provided protective care in a domestic setting.
The Supreme Court heard two appeals. The first concerned two sisters with moderate-to-severe learning difficulties known, respectively, for legal purposes as MIG and MEG. They lacked mental capacity to make decisions about care and residency. They had had a troubled and abusive family background involving excessive physical chastisement, neglect and deprivation. As a result, they both came into local authority care. MIG was placed into foster care and was devoted to her foster mother whom she called “mummy”. She attended college daily, was not on medication and though making no attempt to leave this domestic setting would have been restrained had she attempted to do so. MEG, while initially placed in foster care, was transferred to a “small group home”. She occasionally required physical restraint and medical tranquilisers for challenging behaviour, was not allowed out without supervision and was subject to staff control.
The second appeal concerned an adult male with cerebral palsy and Down’s Syndrome known for legal purposes a ‘P’. Like MIG and MEG, he lacked mental capacity to make care and residency decisions. He was placed by the local authority in a small group home as opposed to a registered care home, thus outside the scope of Deprivation of Liberty Safeguards (DOLS), needing the review and authorisation of the Court of Protection (COP). The distinctive feature of this case was P’s proclivity for removing his incontinence pads and placing them in his mouth. This required his carers to restrain him physically, to conduct a finger sweep, and to place him in a body suit which could only be opened from the back.
The Legal Issues
The question arose whether the nature of these placements amounted to a “deprivation of liberty” (DOL) attracting the procedural safeguards set out in the Mental Capacity Act 2005, known as Deprivation of Liberty Safeguards (DOLS), or the authorisation of the Court of Protection (COP). As none of the appellants was accommodated in a registered care home, or hospital, the authorisation of the Court of Protection was sought.
In the case of MIG and MEG, the High Court (per Parker J.) held that none of the appellants was deprived of their liberty, emphasising their happiness, lack of subjective sense of confinement and the fact that they were living the sort of lives that they would otherwise have lived given their cognitive limitations. The Court of Appeal upheld the High Court (HC) judgement that neither were deprived of their liberty holding that the purpose of the restrictions placed on them, the degree of their compliance with that restriction, and the fact that they were being ‘rescued’ from a horrific situation, were not factors relevant to the determination of the existence of a DOL. However, the use of potentially wish-supressing medication was a key factor as was the ‘relative normality’ of their placement.
The High Court and the Court of Appeal
In the case of ‘P’, the High Court (per Baker, J) held that even though ‘P”s living arrangements were appropriate, lawful and conducive to as normal a life as possible given ‘P”s condition, it did constitute a DOL. ‘P”s life was completely under staff control and was subject to intrusive procedures such as finger sweeps and the body suit. However, the Court of Appeal held unanimously that ‘P”s care and residency arrangements did not amount to a DOL. Following Parker J in the MIG and MEG case, the court held that the objective purpose of the arrangements was a relevant factor as was their ‘relative normality’ (i.e. who ‘P’ should be compared to in order to determine whether it is a DOL or not. There was no realistic alternative to the arrangements made in ‘P”s case. Rejecting the reasoning of the High Court judge, the appeal court held that the restrictions and limits place on ‘P’ in his setting was nothing more than “the inevitable corollary of his various disabilities.” ‘P”s life was as normal as it could be for somebody in his situation. The proper comparator was not the objective one of the ‘man on the Clapham omnibus’ but somebody comparably restricted by their circumstances and leading the kind of life that somebody life ‘P’ would normally expect to lead.
The Supreme Court
1. Lady Hale and the majority judgement
The Supreme Court unanimously agreed that ‘P’ had been deprived of his liberty and allowed his appeal. The court by a majority (4:3) agreed that MIG and MEG had, respectively, been deprived of their liberty, and upheld their appeal. Thus both appeals were allowed. Lady Hale delivered the leading judgment (with whom Lords Sumption, Neuberger and Kerr agreed) and from which (in the case of MIG and MEG), Lords Carnwath, Hodge and Carnwath dissented. There are a number of key themes in her judgement.
1. Human rights are universal and there is therefore no legal basis for treating disabled people any differently from their able-bodied counterparts. She rejects the idea of using a comparator or employing a test of ‘relative normality’ to determine whether there has been a DOL.
2. The meaning of DOL is to be established by reference to the case law of the European Court of Human Rights (ECtHR) and its interpretation of Article 5 of the European Convention on Human Rights (ECHR) which enshrines the ‘right to liberty’. This is required by the Mental Capacity Act. This case law lays down three elements: (a) the lack of ability to consent (the subjective element); (b) whether the state is involved in, or knows about, the deprivation; and (c) whether there has been confinement in a restricted space for a non-negligible amount of time (the objective meaning).
3. In elucidating the objective meaning of the right to liberty the Strasbourg case law distinguishes between a restriction on liberty and a deprivation of liberty. This is a matter of fact and degree, rather than a matter of kind. Deciding which side of the line a particular set of living arrangements falls will be a matter of judgment. This will involve reference to the concrete situation of the vulnerable adult, and the nature, frequency and intensity of the interventions.
4. On the basis of this case law, Lady Hale distils an ‘acid test’ viz. that the person was “under continuous supervision and control and was not free to leave” (Lady Hale, para.49).
5. Lady Hale also identifies a range of factors which are not relevant to a DOL determination. These include: (a) the nature and extent of the disability (the equality point); (b) a comparison between the conditions of the able and disabled (i.e. the ‘relative normality’ test); (c) the quality and suitability of the residence and care arrangements (“a gilded cage is still a cage” ); (d) whether or not the person is aware that she has been deprived of her liberty; (e) whether or not the person for whom arrangements are made is compliant or not. Lord Neuberger points out that it would be a nonsense of rule out from a finding that there is a DOL simply because they are incapable of being non-compliant (Lord Neuberger, para.67). On the basis of previous case law, two additional non-relevant factors could be added: (e) the reason or purpose behind the restriction is not relevant to whether it is a DOL or not; (f) the distinction between the current situation and the previous situation; and (f) the non-availability of an alternative.
6. Applying the ‘acid test’, Lady Hale held that all three appellants were deprived of their liberty because each of them was under complete supervision and control and were not free to leave. There was no suggestion that the local authorities had behaved inappropriately. Rather, it would be lawful to act as they had acted, subject to proper process and scrutiny. MIG and MEG, having been deprived of their liberty were therefore entitled to the proper safeguards.
7. As a matter of policy, the state should err on the side of caution as to what constitutes a DOL and that MIG and MEG require an independent periodic check that the arrangements are still in their best interests in view of their extreme vulnerability, and those in a comparable position.
2. The minority judgement
1. Three of the judges (Lord Carnwath, Lord Hodge and Lord Clarke) did not think that MIG and MEG were deprived of their liberty. Although they agreed with the majority that ‘P’ had been deprived of his liberty, they were rather equivocal, indicating that though they might have come to a different conclusion to the High Court judge, it was within his discretion to have made the decision he did and that therefore the Court of Appeal was wrong to overrule him.
2. They argued that the Strasbourg case law did not go as far as the majority thought it did.
3. They applied an ‘ordinary language’ test to the effect that it could not be said that MIG and MEG, who were living happily in a domestic setting, had been deprived of their liberty.
1. The ‘relative normality’ test might still have some applicability in the case of children over whom parental responsibility is exercised, even though they are under continuous supervision and control and are not free to leave the domestic setting.
2. Lady Hale suggested that such constraints would probably not amount to a DOL under Article 5 of the ECHR if they were employed by parents in the ordinary course of exercising parental responsibility. Lord Kerr suggested that a child should be compared to other children of similar age and background who are not disabled and have access to a range of freedoms typical of children of that age and background (Lord Kerr, paras. 77-79).
4, A clear test?
Although Lady Hale’s ‘acid test’ is clearly expressed, there may be a number of situations where it is difficult to apply in practice:
1. Is there a DOL where, for a example, a disabled person is not free to leave, but not under continuous supervision and control? Lady Hale insists that both elements are required for a DOL finding. However, this requirement is potentially discriminatory if a disabled person is not free to leave his restricted situation.
2. Is there a clear distinction between ‘support’ and ‘control’? It could be argued that the function of a protected care environment is to support the subject of those arrangements to do what otherwise they wouldn’t be able to do (i.e. ‘support’), as opposed to what the authorities want the subject of these arrangements to do (i.e. “control”).
3. Is ‘freedom to leave’ a negative or a positive right? While a person may not be prevented from leaving (i.e. outside interference), It could be the case that a person is o severely disabled that they can’t exercise their freedom to leave without considerable support from a ‘third party’ (i.e. outside intervention), which would be tantamount to ‘control’.
4. Will there be an abiding reluctance to called residency and social care arrangements in a domestic setting a DOL? It may be widely felt that to do so is to stretch ‘ordinary language’ to breaking point.
5. Practical implications
This case will have considerable practical implications for local authorities with oversight of the care of disabled and vulnerable adults, e.g. review of existing care packages, and an increase in DOLS referrals and COP applications.