P & Q v Surrey County Council & Ors

Whether care arrangements amount to a deprivation of liberty under Article 5 is an objective, fact-sensitive question. The court must examine the person’s concrete situation and the type, duration, effects and manner of the arrangements. Deprivation and restriction differ in degree or intensity, not in kind. Lack of valid consent and State imputability are separate elements. Happiness and the benevolent purpose of care do not determine whether deprivation exists, although happiness may bear on best interests and lawfulness. Objections, medication, confinement, normality of accommodation, education, outings and social contact may all be relevant. The assessment is individualised and takes account of the person’s capabilities. On the totality of the circumstances, the arrangements did not deprive the appellants of liberty.

P and Q, sisters with substantial and permanent learning disabilities, lacked capacity in relation to the matters before the court. Acting through the Official Solicitor, they appealed against a declaration by Mrs Justice Parker in the Court of Protection on 15 April 2010 that Surrey’s arrangements for their care did not amount to a deprivation of liberty.

P lived in a foster family home. Q lived in a small specialist residential home. Both received continuous supervision and control, were not free to leave unaccompanied, and did not object to their arrangements. Both attended further education and had family and social contact. The arrangements had changed after the lower court’s inquiry, so the appeal concerned only the earlier arrangements. The central issue was whether Article 5 was engaged by an objective deprivation of liberty.

The appeal was dismissed unanimously. Wilson LJ gave the leading judgment, with Smith LJ and Mummery LJ agreeing. The court assessed the arrangements as they stood at the time of Parker J’s inquiry and did not examine subsequent changes.

1. Article 5 requires three elements: objective confinement in a limited place for a non-negligible period; absence of valid consent; and imputability to the State. The first two elements overlapped to some extent, but incapacity meant that P and Q could not validly consent. Their arrangements were imputable to Surrey and to the court’s orders: (2005) 43 EHRR 96.
2. The objective element required examination of the person’s concrete situation, including the type, duration, effects and manner of implementation. Deprivation and restriction differed in degree or intensity, rather than in nature or substance: (1981) EHRR 333. The assessment was fact-sensitive and had to take account of the individual’s capabilities. Compliance or the absence of attempts to leave was not necessarily decisive: (2005) 81 BMLR 131.
3. Happiness, as such, was irrelevant to whether liberty had been deprived. It was relevant instead to best interests under section 4(6)(a) of the Mental Capacity Act 2005, and therefore to the lawfulness of any deprivation. The benevolent purpose of providing care or promoting best interests did not determine whether deprivation existed, although the relative normality of the arrangements could be relevant.
4. Objections to confinement, and the absence of objections, were relevant because they affected the level of conflict and restraint. Medication, particularly antipsychotic drugs and tranquilisers, was a pointer towards deprivation; forced administration increased its significance, while the absence of medication pointed in the opposite direction. Normality of the accommodation, freedom from close confinement, education, outings and outside family or social contact were also relevant.
5. P was not deprived of liberty. Q’s case was closer, because she lived outside a family home, sometimes required physical restraint and received medication. Nevertheless, her small residential home, lack of objection, attendance at education, family contact and active social life kept both cases outside Article 5.
6. Mummery LJ held that an appeal under Part 52 of the Civil Procedure Rules 1998 was against the order, not merely the reasons. The court properly entertained the appeal despite the mootness objection because a formal declaration had been made and Article 5 engagement would carry important review consequences. Engagement of Article 5 was distinct from justification of a deprivation.

Smith LJ additionally expressed the view that the person’s previous arrangements were irrelevant to whether the present State-imputable arrangements engaged Article 5. Wilson LJ reserved that issue because it had not been argued.

1. Court of Appeal (Civil Division): In [2011] EWCA Civ 190, the appeal was dismissed. The court upheld Parker J’s declaration that the arrangements did not amount to a deprivation of liberty.
2. Court of Protection: Mrs Justice Parker declared on 15 April 2010 that the arrangements for P and Q did not amount to a deprivation of liberty.