P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & Anor  UKSC 19 (19 March 2014)
The United Kingdom Supreme Court has provided criteria for judging whether the living arrangements made for a person with a disability amount to a deprivation of liberty. If so, the deprivation must be authorised by a court or by the deprivation of liberty safeguards (DOLS) procedure in the Mental Capacity Act 2005 (UK) (MCA) and subject to regular independent checks.
In two cases heard together, the Court held that the appellants had each been deprived of their liberty.
The two cases heard together were appeals from separate Court of Appeal decisions which found, respectively, that a man with a learning disability, known as P, and two sisters with learning disabilities, known as MIG and MEG (otherwise known as P and Q), had not been deprived of their liberty.
P is an adult born with cerebral palsy and Down syndrome who requires 24 hour care. He lives in supported living accommodation arranged by the local social services authority under an order obtained from the Court of Protection that it was in his best interests. P receives substantial one-to-one care and supervision. Intervention is sometimes required when he exhibits challenging behaviour. The Court of Appeal ruled in 2011 that this was not a deprivation of liberty. It was considered that P’s life was as normal as possible when comparing his life with the life which another person with his disabilities might be leading.
MIG and MEG are sisters who both have learning disabilities. MIG was placed in a foster home which she never attempted to leave by herself, but would be restrained from doing so if she tried. MEG lives in a residential home for adolescents with learning disabilities and sometimes requires physical restraint and tranquilising medication. The Court of Appeal ruled in 2011 that neither sister was deprived of their liberty, because of the ‘relative normality’ of the sisters’ lives and their lack of objection to their accommodation.
The question for the Court was whether P, MIG and MEG’s living arrangements amounted to a deprivation of liberty under the UK’s Mental Capacity Act. If this was found to be the case, each of them was entitled to the DOLS, which impose a periodic independent check to ensure the deprivation continues to be in the person’s best interests and is not in violation of their right to liberty under Article 5 of the European Convention on Human Rights.
In reaching its decision that P, MIG and MEG have each been deprived of their liberty, the Court proposed the “acid test” to be applied to determine whether a person lacking the mental capacity to consent to their living arrangements is being deprived of their liberty. In her development of the acid test, Lady Hale drew on European Court of Human Rights cases that have interpreted the right to liberty and security.
The acid test asks whether the person is under continuous supervision and control and is not free to leave. The determination of whether a person is free to leave does not focus on the person’s ability to express a desire to leave, but rather on what those with control over their living arrangements would do if that person sought to leave.
The Court made clear that there are several factors that are not relevant to the application of the test, which include:
- the person’s compliance or lack of objection;
- the relative normality of the placement (whatever the comparison made); and
- the reason or purpose behind a particular placement.
In applying the acid test the Court unanimously held that persons with a disability should not face a different or higher standard for being deprived of their liberty than others. It was stressed that it was not a criticism if safeguards are required, but rather a recognition that human rights “are for everyone, including the most disabled members of our community, and that those rights include the same right to liberty as has everyone else”.
In the majority Lady Hale said:
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.
In relation to MIG and MEG, 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, the deprivation is the responsibility of the state.
Lady Hale noted that this was different from similar constraints imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention.
In dissent with regard to MIG and MEG, Lord Carnwath and Lord Hodge (with whom Lord Clarke agreed) sought guidance from the European Court of Human Rights (ECtHR). Their Lordships said the ECtHR had not yet ruled on a case where people have been placed in a small group or domestic setting such as MIG and MEG and as such it was not clear that the ECtHR would adopt a universal test rather than proceeding on a case specific basis. The dissenting judgment expressed concern that nobody using ordinary language would describe persons living happily in a domestic setting as being deprived of their liberty.
This case provides much needed clarity in the UK on the issue of deprivation of liberty and overrules previous UK case law that had defined deprivation of liberty more restrictively. It is hoped that this test will be easier to apply than previous more complex tests and will provide greater protection to vulnerable people.
This case sets a precedent that anyone who meets the acid test will be considered to be deprived of their liberty and subject to a protective care regime in the UK.
Australia has ratified the Convention on the Rights of Persons with Disabilities, which enshrines liberty of persons with disabilities on an equal basis with others. In Australia there are some differing protections in place to protect the rights of persons with disabilities who are subject to restrictive interventions. However, each state and territory has a statutory regime that enables those with severe mental health problems to be detained and treated without their consent.
The full decision is available at: http://www.bailii.org/uk/cases/UKSC/2014/19.html
Lisa Bain is a Law Graduate at King & Wood Mallesons.