MIG & MEG, Re

A person’s lack of capacity to consent to a placement does not, by itself, amount to deprivation of liberty. The court must examine the person’s concrete situation and the cumulative degree and intensity of the actual restraints. Relevant considerations include confinement, supervision, control of movement and contacts, restraint, medication, the person’s wishes, and the purpose and circumstances of the placement. Ordinary care in a domestic or residential setting will not necessarily cross the Article 5 threshold. Where a deprivation of liberty is authorised under a welfare order outside the standard-authorisation scheme, the court must provide a review process. The court concluded that neither ordinary placement nor the limited safety measures used for these two young people amounted to deprivation of liberty.

Surrey County Council applied to the Court of Protection for welfare declarations concerning MIG, aged 18, and MEG, aged 17. Both had severe learning disabilities, lacked capacity in relation to residence and care, and lived in placements arranged through public care proceedings. MIG lived with a former respite carer in a family home. MEG lived in a small residential group home and received medication for anxiety.

The court had to determine whether either girl was deprived of her liberty under Article 5 of the Convention, and whether the Mental Capacity Act 2005 supplied power to authorise any deprivation of liberty. It also considered the need for review where a welfare order authorised a deprivation outside the standard-authorisation regime.

1. The court held that neither MIG nor MEG was deprived of her liberty. The fact that each lacked capacity to consent to her living arrangements, could not leave independently, and was subject to continuous supervision did not determine the issue.

2. The correct approach was to examine the concrete situation and all the circumstances. The distinction between restriction and deprivation of liberty depended on degree and intensity. The paradigm case was complete confinement in a prison cell, but deprivation could arise in other forms. No single factor was ordinarily determinative.

3. Placement in a domestic or residential setting was not, without more, confinement. The court had to identify the specific measures actually imposed. Ordinary guidance and accompaniment arising from disability, temporary physical intervention to prevent immediate harm, and medication administered for therapeutic reasons did not cross the threshold on the facts found.

4. The court treated the girls’ wishes and feelings, their happiness in their placements, their lack of any wish to leave, their attendance at college, their social contacts, the absence of locked accommodation, and the absence of any refusal to release them into the care of an interested person as relevant contextual matters. The placements were made to provide homes and care, not principally to restrain or manage them.

5. The court held that the Mental Capacity Act 2005 permitted the Court of Protection to authorise deprivation of liberty for a person aged between 16 and 18 who was not ineligible under Schedule 1A and was outside Schedule A1. A welfare order should, however, separately and specifically authorise any course of action amounting to deprivation of liberty and declare it lawful and in the person’s best interests.

6. Where deprivation of liberty was authorised by the court outside the standard-authorisation scheme, the court was required to provide a review process. Regular court reviews went to the legality of the deprivation, not merely to good practice.

7. The court therefore made the welfare findings sought, but concluded that neither girl was deprived of liberty within Article 5 or subjected to a breach of Article 8.