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Supreme Court to hand down judgments in deprivation of liberty cases on 19th March

Court to consider DOLS in light of ECHR and Mental Capacity Act

The Supreme Court will hand down judgment on the 19th March in two cases concerning the possible deprivation of liberty of vulnerable persons.

In P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another the court will determine what is the correct approach to determining whether a person is deprived of his liberty under Article 5 of the European Convention on Human Rights? Applying that approach, the court will determine whether P is deprived of his liberty.

P is a thirty-nine year old man with severe physical and learning disabilities. He lacks the mental capacity to make decisions as to his care and residence. In November 2009, he was placed in Z House pursuant to a court order.

There is no dispute between the parties that his care package at Z House is in his best interests. The only dispute is whether that package imposes such restrictions upon P that he is deprived of his liberty, thereby engaging the protective procedural rights under Article 5 ECHR.

Z House is a large and spacious single-level bungalow. P has his own rooms and access to two bathrooms. He continues to attend a day centre four days a week, and a hydrotherapy pool on the fifth weekday, leaving Z House at 9.30am and returning at 5.00pm. He is supported by staff to access community and leisure facilities e.g trips to town and to visit his mother.

P has a history of shredding his continence pads and putting them in his mouth. Various techniques have been used to tackle the problem. Non-physical methods are attempted, including dressing P in a onesie with access via a zip at the back. However staff members sometimes have to resort to physical intervention, including inserting a finger into his mouth to remove such material.

In P and Q (by their litigation friend, the Official Solicitor) v Surrey County Council, the court will decide how it should determine whether there is a deprivation of liberty for the purposes of the Mental Capacity Act 2005.

P and Q are sisters who were, at the time of the first instance judgment, 18 and 17 years old respectively. Both P and Q are severely mentally impaired.

Until 2007, both of them lived with their mother. Their lives were dysfunctional and abusive. By the time of the first instance hearing, P was living with a foster carer and Q was living in a specialist NHS children's home. P and Q's contact with their mother was restricted by Court, and they were not permitted to live with her.

P had her own bedroom at her foster carer's home. Her bedroom door was never locked. She had never attempted to leave. Were she to attempt to leave, the foster mother would restrain her for her immediate safety. She was not in receipt of medication. She attended college, and was taken on outings.

Q had her own bedroom at the secure children's home. She occasionally suffered outbursts and sometimes required physical restraint. She was treated with medication, Risperidone, for the purpose of controlling her anxiety. She attended college, and was taken on outings.