P v Cheshire West and Chester Council and another

Article 5 protects the physical liberty of disabled and non-disabled people on the same basis. In state-arranged care, the acid test for an objective deprivation of liberty is whether the person is under continuous supervision and control and is not free to leave.

The person’s compliance, lack of objection, disability, the relative normality of the placement and its benevolent purpose do not determine whether liberty has been deprived. Those matters must not conflate the existence of a deprivation with its justification. A person who cannot validly consent remains entitled to the safeguards accompanying deprivation of liberty. Where the acid test is met, comfortable and beneficial living arrangements still require lawful authorisation and periodic independent review under the Mental Capacity Act 2005.

The appeals concerned three people who lacked capacity to decide where they should live. P lived in a staffed bungalow and required continuous assistance and occasional restraint. MIG lived with a foster mother. MEG lived in a small residential placement. Each placement had been arranged or authorised through public authorities and was considered to be in the person’s best interests.

In P’s case, the Court of Protection held that his arrangements deprived him of liberty: [2011] EWHC 1330 (Fam). The Court of Appeal reversed that conclusion: [2011] EWCA Civ 1257. In MIG and MEG’s case, the Court of Protection found no deprivation: [2010] EWHC 785 (Fam). The Court of Appeal agreed: [2011] EWCA Civ 190.

The common issue was how the objective element of deprivation of liberty under article 5 and section 64(5) of the Mental Capacity Act 2005 applies to mentally incapacitated people living in beneficial care arrangements.

1. Both appeals allowed. The Court unanimously restored the declaration that P’s arrangements constituted a deprivation of liberty. By a majority of four to three, it also declared that MIG’s and MEG’s arrangements constituted deprivations of liberty.

2. Lady Hale, with Lord Sumption, delivered the leading reasons. Lord Neuberger and Lord Kerr agreed. The concept of physical liberty is the same for disabled and non-disabled people. A person’s limitations must not be assessed by comparison with what another person having the same disabilities might ordinarily experience. The Court of Appeal’s approach of “relative normality” was therefore rejected.

3. The objective element of deprivation of liberty is determined from the person’s concrete situation. In this care context, the acid test is whether the person is under continuous supervision and control and is not free to leave. Freedom to leave means freedom to remove oneself permanently and live elsewhere, rather than merely taking approved outings. The test reflects the essential features identified in HL v United Kingdom (2004) 40 EHRR 761.

4. Compliance, contentment and lack of objection do not amount to valid consent. The home-like quality of a placement is also immaterial. Its benevolent purpose, necessity and success in promoting the person’s welfare concern justification, not whether a deprivation exists. Otherwise, the need for the statutory safeguards would be decided by assuming the very best-interests conclusions that those safeguards exist independently to examine.

5. P was completely under staff control, could not go anywhere or do anything without assistance and was not free to leave. Baker J had applied the correct test in substance. MIG and MEG were likewise subject to control over every aspect of their lives and could not leave without supervision. Their contentment, education, social contacts and domestic surroundings did not alter the character of those constraints. The deprivations were attributable to the state.

6. A deprivation within section 64(5) of the Mental Capacity Act 2005 requires lawful authorisation and independent safeguards. The need for review is protective rather than stigmatising.

7. Lord Carnwath and Lord Hodge, with Lord Clarke, dissented in MIG and MEG’s appeal. They preferred a case-specific, multifactorial assessment of the type, duration, effects and implementation of the measures. They considered the domestic setting, degree of intrusion and ordinary meaning of deprivation relevant, and would have upheld Parker J. They nevertheless agreed that P’s appeal should be allowed.

1. United Kingdom Supreme Court: In P v Cheshire West and Chester Council and another [2014] UKSC 19 , the Court allowed both appeals. It restored the declaration that P was deprived of liberty and declared that MIG’s and MEG’s arrangements also constituted deprivations of liberty.
2. Court of Appeal — P: In [2011] EWCA Civ 1257 , reported at [2012] PTSR 1447 , the court set aside the Court of Protection’s declaration and held that P was not deprived of liberty.
3. Court of Appeal — MIG and MEG: In [2011] EWCA Civ 190 , reported at [2012] Fam 170, the court upheld the conclusion that neither sister was deprived of liberty.
4. Court of Protection — P: In [2011] EWHC 1330 (Fam), Baker J held that P’s arrangements deprived him of liberty but were in his best interests.
5. Court of Protection — MIG and MEG: In [2010] EWHC 785 (Fam) , reported at [2011] Fam Law 29, Parker J held that the sisters’ arrangements were in their best interests and did not deprive them of liberty.