P v Cheshire West and Chester Council; P and Q (MIG and MEG) v Surrey County Council  UKSC 19 (19 March 2014)
The UK Supreme Court handed down a judgment on the two linked appeals known collectively as the Cheshire West Case. The appeals deal with whether and in what circumstances the care and living arrangements made for a person with a mental impairment will amount to a deprivation of liberty. The Supreme Court found that all three of P, MIG and MEG, in these instances, were deprived of their liberty. The Court allowed appeals in both cases, unanimously in P's and by a majority of 4:3 for MIG and MEG.
The Supreme Court's decision provides clarification on the issue of deprivation of liberty under article 5 of the European Convention on Human Rights in care facilities. The judgment also gives far greater protection to those vulnerable people who are unable to make decisions relating to their own disability care.
P and Q (MIG and MEG) v Surrey County Council
MIG and MEG are sisters, who at the time of the original care proceedings under the Children's Act 1989 (UK) in 2007 were 16 and 15 respectively. Both sisters have significant and permanent learning disabilities and were removed from their family home following allegations (and convictions) of abuse.
MIG had a mental age of two and half years, various sight and hearing problems and considerable difficulty in communicating. At the time of the original care proceedings, she lived with a foster mother, to whom she was very devoted. She had her own room, attended further education and despite a limited social life, she was still able to go on holidays with her foster mother and had contact with her sister and half-sister. MIG never attempted to leave the foster home and demonstrated no desire to. Had she tried, however, she would have been prevented from doing so. She was accompanied at all times when she left the house.
MEG had a mental age of four or five and on occasion was unable to control her severe aggressive outbursts. As a result, she was removed from foster care and placed in a residential home better equipped to deal with her needs. The home was a facility for adolescents with learning disabilities and complex needs. At the time of the original care proceedings the home had three other residents. Due to her occasional outbursts MEG sometimes needed to be restrained physically and receive tranquilising medication. Despite being under continuous supervision and control, she was able to attend further education and have a full social life. Like her sister, she did not show any wish to leave the home on her own, nor would she have been allowed, as she was always accompanied by staff when she left.
P v Cheshire West and Chester Council
P was 38 years old at the time of the Court of Protection hearing. He required 24 hour care to meet his needs as he was born with cerebral palsy and Down's syndrome. After local services authorities concluded that his mother was no longer able to properly care for him, P was moved by order of the Court of Protection to live in accommodation arranged by the local authority.
The accommodation to which he was moved was a spacious bungalow and described by an independent social worker as "cosy with a pleasant atmosphere, and close to P's family home". P had an active social life. He went out to a club, the pub and the shops and saw his mother regularly at the house, the day centre he attended four days a week and at her house. He was able to leave the house whenever he chose during the 98 hours of additional one-to-one support he received each week.
P needed help with daily activities including eating, personal hygiene and continence. Intervention was needed on occasion to cope with many of the challenging behaviours he exhibited, but no tranquilising medication was administered.
Judgments were previously given on both cases separately by the Court of Appeal in 2011. The Court of Appeal held that the living arrangements in both cases did not amount to a deprivation of liberty for any of MIG, MEG or P.
The Court of Appeal held that the arrangements were in the best interests of the individuals, were no more restrictive than required and the appellants did not appear to be dissatisfied with them. A large basis for the decision was that MIG, MEG and P were afforded "relatively normal" lives and that in determining whether they have been deprived of liberty, their lives should be compared to a person of the same age with the same disabilities and difficulties.
The Supreme Court rejected the decision of the Court of Appeal stating that "it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race". The Court held that the "relative normality" approach used by the Court of Appeal was inconsistent with the view that people with disabilities have the same rights as everyone else and that it is important not to confuse the quality of the arrangements with whether the arrangements themselves constitute a deprivation of liberty. "A gilded cage is still a cage".
In the main judgment, Lady Hale found that it remains the case that the difference between restriction of liberty and deprivation of liberty is a matter of intensity and degree, not nature and substance. The Supreme Court adduced an objective test to give guidance as to whether someone is deprived of their liberty. The test is whether a person who may have been deprived of their liberty, and is unable to consent to the arrangements, is under continuous supervision and control and is not free to leave. The Court determined that, quite clearly, all three applicants were under continuous supervision and control and that any suggestion that they were free to go was a "fairy tale".
In addition to the objective test, the Court stated that certain subjective factors were to be considered when determining whether someone is deprived of their liberty. These factors were whether the person resists or complies with their placement in the care, the relative normality of the placement and the purpose of the placement.
This case shows a fundamental shift, in the UK, in determining whether a person with mental incapacity has been deprived of their liberty by being placed into a care facility. Local authorities and health bodies must now reconsider whether those that they care for have been deprived of their liberty according to the objective test elucidated by the Court and if they are, seek to have their circumstances reviewed with a view to ensuring that they are cared for lawfully.
This decision is available online at: http://supremecourt.uk/decided-cases/docs/UKSC_2012_0068_Judgment.pdf
Daniel Kornberg is a Graduate Lawyer at DLA Piper.