P & Q v Surrey County Council  EWCA Civ 190 (28 February 2011) Summary
This case in the England and Wales Court of Appeal considered what constitutes a deprivation of liberty and the limitations on the right to liberty. It involves consideration of whether the care arrangements for two persons with mental disability resulted in the deprivation of their liberty.
This case involved an appeal against a declaration in the Court of Protection that the arrangements for two sisters with substantial and permanent learning disabilities did not amount to a deprivation of their liberty, pursuant to Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (European Convention on Human Rights).
Article 5 of the European Convention on Human Rights provides a right to 'liberty and security of person'. A person is not to be deprived of his/her liberty except in specific circumstances and in accordance with a procedure prescribed by law. One of the exceptions is the lawful detention of persons of unsound mind.
A person who is deprived of his/her liberty by detention is entitled to bring proceedings to determine the lawfulness of the detention. If the court finds the detention is not lawful then the person is to be released.
The first of the appellants, P, has a mental age of 2.5 years, a learning disability, sight and hearing issues, limited understanding and communicates with difficulty. The second of the appellants, Q, has a mental age of 4-5 years, a learning disability, sight problems and is 'troubled in her mind'. Her communication skills are better than P's and her emotional understanding is reasonably sophisticated.
The court stated that both P and Q are unable to make decisions for themselves in relation to anything other than 'trivial, day-to-day aspects of their lives'.
They had both lived in a dysfunctional and abusive home in which they were subjected to various inappropriate behaviour and treatment. They were removed from the home and P moved into a foster home. Q eventually moved into a small residential home.
At the time of the enquiry, P was living in an ‘excellent’ foster home and had good relations with her foster mother. She had her own bedroom and had never attempted to leave the home on her own. She attended an educational facility and was taken on trips and holidays. She was not receiving any medication.
Q was living in a specialist home for adolescents and had her own bedroom. She had outbursts on occasion and required physical restraint. She was under continuous supervision and control, but was not locked in the home. She did not indicate any interest to go out on her own, and was always attended when she left the home. She attended an educational facility and had a fuller social life than P. She was able to communicate her wishes in a limited way and was receiving medication to control her anxiety.
The Court referred to the elements of deprivation of liberty, as established in the European Court of Human Rights case of Storck v Germany, being the:
- objective element of a person's confinement to a certain limited place for a not negligible length of time;
- additional subjective element that they have not validly consented to the confinement in question; and
- confinement being imputable to the State.
As neither P nor Q was able to give a valid consent, the Court found that element (b) was established. Further, as the arrangements were imputable to Surrey and the orders of the original Judge, the Court found that element (c) existed. Accordingly, the Court was focussed on the existence of element (a).
The court found that a person's happiness will not be relevant to the objective element (a) in determining whether the person is deprived of his/her liberty. However, the person’s act of objection to the confinement is relevant to the subjective element (b) of whether the person has consented to the confinement.
The Court found that some of the factors relevant to determining whether there is an objection to the deprivation are whether the mentally disabled person is on medication and their ability to object. If the person is heavily medicated then this will suppress his/her ability to express his/her wishes, which is exacerbated if the medication is administered by force. The Court also held that the absence of medication is an indicator in the opposite direction. The situation in the home/place is also relevant. If there is a peaceful environment then there will not be considered to be objection, so there will not be deprivation of liberty.
The Court held that the 'normality' of the living arrangements is relevant to determining whether element (a) exists. The person's ability to have privacy and freedom, such as leaving the home, having social interaction and an education, are all relevant in this regard.
Ultimately, the Court found that both P and Q had reasonable freedoms and their living arrangements were relatively 'normal'. Accordingly, the Court found that there was not a deprivation of liberty.
Relevance to the Victorian Charter
Section 21 of the Charter is in similar terms to Article 5 of the European Convention on Human Rights. However, this does not specify the particular exceptions to the right to liberty, but states that a person is not to be deprived of his/her liberty other than on grounds and procedures established by law. This also provides a right to apply to a court for a declaration or order regarding the lawfulness of a person's detention.
Accordingly, this case indicates that the right provided under section 21 of the Charter may be limited in circumstances where the care arrangements of a person with mental disability require restrictions on the person's liberty, provided the measures are legally imposed and enable the person to retain a level of privacy and freedom.
The decision is at www.bailii.org/ew/cases/EWCA/Civ/2011/190.html.
Mandy Lister is a volunteer with the Human Rights Law Centre