Cheshire West and Chester Council v P

Whether a person is deprived of liberty under Article 5 is an objective question assessed from the person’s concrete situation as a whole. The court must consider the type, duration, effects and implementation of the measures, and distinguish deprivation from restriction and temporary restraint. For children and adults with disabilities, the comparator is a person of similar age and capabilities affected by the same limitations, not an able-bodied person. Lack of capacity to consent, residence in particular accommodation and benign motives do not by themselves establish deprivation or prevent it. Care and supervision reflecting inherent disabilities, and enabling a life as normal as reasonably possible, will ordinarily not cross the Article 5 threshold. On the facts, P’s care plan did not involve a deprivation of liberty.

P, an adult with cerebral palsy, Down’s Syndrome and other significant disabilities, lacked capacity to decide where he should live and received care under a plan approved by the Court of Protection. Baker J declared that his placement at Z House involved a deprivation of liberty under Article 5, although it was lawful and in his best interests under section 16 of the Mental Capacity Act 2005. The local authority appealed. The issue was whether P’s care, supervision, restrictions on leaving and occasional physical interventions objectively amounted to a deprivation of liberty, or were instead the ordinary consequences of caring for a person with his disabilities.

1. Appeal allowed. The declaration that P’s care plan at Z House involved a deprivation of liberty was set aside and replaced by a declaration that it did not.
2. Article 5 requires the court first to determine whether there is a deprivation of liberty before considering whether it is justified under Article 5(1)(a)–(f). The inquiry is objective and begins with the person’s concrete situation. The court must consider the whole situation, including the type, duration, effects and manner of implementation of the measures. The distinction between deprivation and restriction is one of degree or intensity, not nature. A lock is neither necessary nor determinative.
3. The relevant comparator must reflect the context. For an adult with disabilities it is an adult of similar age with the same capabilities and affected by the same inherent mental and physical limitations. The comparison is not with the life of an able-bodied adult, with P’s previous or possible future life, or simply with a person who can make decisions about residence. Mere lack of capacity to consent and mere placement in residential accommodation do not themselves create a deprivation of liberty.
4. Objective reason and purpose or aim may be relevant to the concrete situation. Subjective motive or intention has only limited relevance: an improper motive, bad faith or deception may turn an otherwise innocuous arrangement into a deprivation, but good intentions and best interests cannot neutralise an arrangement that is objectively a deprivation.
5. Restraint must be distinguished from deprivation. Brief interventions to protect P from ingesting harmful material, to prevent self-harm or to secure him safely in a wheelchair were measures that a person caring for him in any setting might need to use. They did not amount, separately or cumulatively, to the pervasive confinement found in HL v United Kingdom (2004) 40 EHRR 761, DE v JE and Surrey County Council [2006] EWHC 3459 (Fam) and London Borough of Hillingdon v Neary [2011] EWHC 1377 (COP). P received extensive support, attended a day centre and took part in community activities. His life at and outside Z House was as normal as could reasonably be expected for a person with his capabilities.

• Court of Appeal (Civil Division) — Appeal allowed. The Court substituted a declaration that P’s care plan at Z House did not involve a deprivation of liberty.
• Court of Protection — Baker J, [2011] EWHC 1330 (Fam), declared under section 16 of the Mental Capacity Act 2005 that P’s residence at Z House was lawful and in his best interests, but that the care plan involved a deprivation of liberty under Article 5.