Surrey County Council v P; Cheshire West and Chester Council v P

The Supreme Court considered the legal test for when the living arrangements of a person who lacks capacity amount to a "deprivation of liberty" for the purposes of section 64(5) of the Mental Capacity Act 2005 (cross‑referring to article 5(1) ECHR). The court held that the concept of deprivation of liberty is the same for everyone and is to be assessed by reference to the individuals concrete situation. The key features consistently identified in the Strasbourg jurisprudence are continuous supervision and control together with a lack of freedom to leave the placement. The benevolent purpose of the placement, the relative normality of the setting, or the fact that the person appears compliant are not decisive on the question whether there has been a deprivation of liberty, although such factors may be relevant when assessing justification and best interests or when considering remedy and authorisation under the Mental Capacity Act (including Schedule A1).

Applying that test, the majority restored the first-instance finding that Ps arrangements amounted to a deprivation of liberty and held that the living arrangements for MIG and MEG (P and Q) constituted a deprivation of liberty as at the relevant time, so that independent procedural safeguards are required.

Background and parties:

• P (aged 38) had cerebral palsy and Downs syndrome and required 24 hour care. The local authority had arranged accommodation (Z House) after it became unable to rely on his mother as carer.
• MIG and MEG (P and Q) were sisters removed from parental care and placed in foster/residential settings; care proceedings had transferred to the Court of Protection.

Nature of the application:

• The appeals raised whether the living arrangements of adults (and in the transferred proceedings, young people) who lack capacity amounted to deprivations of liberty requiring authorisation under the Mental Capacity Act 2005 (including Schedule A1) and/or Court of Protection orders.

Procedural history:

• The matters came on appeal from judgments of the Court of Appeal: [2011] EWCA Civ 1257 and [2011] EWCA Civ 190, and from earlier High Court/Family Division and Court of Protection decisions (Parker J, Baker J).

Issues framed by the court:

1. Whether the test for deprivation of liberty should vary according to the persons disabilities or whether the same test applies to everyone.
2. What are the essential components of a deprivation of liberty in the context of mentally incapacitated persons (drawing on Strasbourg authorities)?
3. Whether the relevant living arrangements for the appellants satisfied that test.

Courts reasoning (concise):

• The court treated section 64(5) MCA as importing the meaning of "deprivation of liberty" from article 5(1) ECHR and therefore looked to Strasbourg jurisprudence (notably HL v United Kingdom and Stanev v Bulgaria) which emphasises an objective assessment of the "concrete situation".
• The court identified the consistent Strasbourg indicators: confinement in a restricted place for a not negligible length of time, continuous supervision and control, and lack of valid consent. The court held that continuous supervision and control together with not being free to leave are the central features to be tested.
• The court rejected approaches that made the test depend on the benevolent purpose of the placement, the perceived normality of the setting or the characteristics of the disabled person (the court emphasised equality of human rights). Compliance or lack of objection may be relevant to consent but do not usually defeat a finding of deprivation where supervision/control and lack of freedom to leave are present.
• Applying the test, the majority concluded that P, MIG and MEG were, at the relevant time, deprived of their liberty and that such deprivations require independent authorisation and periodic review under the statutory framework.

Relief sought:

• Declarations as to whether the arrangements amounted to deprivations of liberty and direction as to authorisation and safeguards.

Appeal allowed. The majority held that the test for deprivation of liberty under section 64(5) MCA is objective and universal: the decisive features are continuous supervision and control and lack of freedom to leave. These features were present in the arrangements for P and for MIG and MEG, so those arrangements amounted to deprivations of liberty requiring appropriate statutory or judicial authorisation and review.

[2011] EWCA Civ 1257; [2011] EWCA Civ 190 (appeals from High Court / Court of Protection decisions; details set out in the judgment).