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Deprivation of liberty

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

This Supreme Court decision considers the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty.

The Appeal concerned two separate cases.

In the first P and Q (otherwise known as MIG and MEG) are sisters who became the subject of care proceedings in 2007. In the second case P is an adult born with cerebral palsy and Down’s syndrome who requires 24 hour care.

The questions regarding deprivation of liberty were concerned with the following circumstances:

  • MIG lived with a foster mother and although she never attempted to leave the foster home she would have been restrained from doing so had she tried.
  • MEG was moved from foster care to a residential home. She sometimes required physical restraint and received tranquillising medication.
  • P has one to one support to enable him to leave the house frequently for activities and visits. Intervention is sometimes required when he exhibits challenging behaviour.

Supreme Court Judgment

The Supreme Court, unanimously in the appeal of P, and by a majority of 4 to 3 in the appeal of MIG and MEG, allowed the appeals that MIG, MEG and P were all been deprived of their liberty.

In such cases the key features of deprivation of liberty are

  1. whether the person concerned is under continuous supervision and control
  2. whether the person concerned is free to leave

The person’s compliance or lack of objection, the relative normality of the placement and the purpose behind it are all irrelevant to this objective question.

The decision also upheld that Article 5 of the European Convention on Human Rights (the Right to liberty and security) applies to everyone, regardless of their disabilities. What would be a deprivation of liberty for a non-disabled person is also a deprivation for a disabled person.

Where a deprivation of liberty is thought necessary it must be authorised by a court or by the procedures known as the deprivation of liberty safeguards (DOLS) in the Mental Capacity Act 2005 (‘the Act’) and subject to regular independent checks.

The DOLS were introduced into the Act following the case of HL v United Kingdom (2004) 40 EHRR 761, which found that the treatment of a severely mentally disabled adult after his informal admission to hospital amounted to a deprivation of his liberty by the hospital. The purpose of DOLS is to secure independent professional assessment of (a) whether the person concerned lacks the capacity to make his own decision about whether to be accommodated in the hospital or care home for care or treatment, and (b) whether it is in his best interests to be detained.

For the majority where deprivation of liberty is not thought necessary the judgment suggests that periodic independent checks are needed for to ensure that the arrangements remain in the disabled person’s best interests.

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