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Supreme Court defines criteria for deprivation of liberty of mentally incapacitated

Appeals allowed in landmark case

The Supreme Court has determined in two appeals that individuals lacking mental capacity have been deprived of their liberty.

In P (by his litigation friend, the Official Solicitor) v Cheshire West and Chester Council and another; P and Q (by their litigation friend, the Official Solicitor) v Surrey County Council [2014] UKSC 19, the Supreme Court, unanimously in the appeal of P, and by a majority of 4 to 3 in the appeal of MIG and MEG, allowed the appeals.

Lady Hale, with whom Lord Sumption agreed, gave the main judgment. Lord Neuberger agreed with Lady Hale in an additional judgment and Lord Kerr agreed with Lord Neuberger and Lady Hale, also in a separate judgment. Lord Carnwath and Lord Hodge gave a joint judgment dissenting in the appeal of MIG and MEG. Lord Clarke agreed with them in an additional judgment.

The appeals concerned the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, the deprivation must be authorised by a court or by the procedures known as the deprivation of liberty safeguards (DOLS) in the Mental Capacity Act 2005 and subject to regular independent checks.

In the case of P, the local social services authority obtained orders from the Court of Protection that it was in P's best interests to live in accommodation arranged by the authority. Since November 2009 he has lived in a staffed bungalow with other residents near his home and has one to one support to enable him to leave the house frequently for activities and visits. Intervention is sometimes required when he exhibits challenging behaviour. The judge held that these arrangements did deprive him of his liberty but that it was in P's best interests for them to continue. The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty, after comparing his circumstances with another person of the same age and disabilities as P.

In the second appeal, MIG had been placed with a foster mother to whom she was devoted and went to a further education unit daily. She never attempted to leave the foster home by herself but would have been restrained from doing so had she tried. MEG was moved from foster care to a residential home for learning disabled adolescents with complex needs. She sometimes required physical restraint and received tranquillising medication. When the care proceedings were transferred to the Court of Protection in 2009, the judge held that these living arrangements were in the sisters' best interests and did not amount to a deprivation of liberty. This finding was upheld by the Court of Appeal.

The Supreme Court noted that the European Court of Human Rights has established general principles relating to the deprivation of liberty of people with mental disorders or disabilities, albeit that it has not yet had to decide a case involving, as here, a person without capacity, who appears content with their care placement, which has been initially authorised by a court.
The general principles make it clear that it is important not to confuse the question of the benevolent justification for the care arrangements with the concept of deprivation of liberty. Human rights have a universal character and physical liberty is the same for everyone, regardless of their disabilities. The key feature is whether the person concerned is under continuous supervision and control and is not free to leave . The person's compliance or lack of objection, the relative normality of the placement and the purpose behind it are all irrelevant to this objective question.

The Supreme Court held unanimously in P's case that the judge applied the right test and his decision should be restored. MIG and MEG were also both under continuous supervision and not free to leave the place where they lived. The deprivation of their liberty was the responsibility of the state and therefore different from similar constraints imposed by parents in the exercise of their ordinary parental responsibilities. Accordingly the decisions of the courts below must be set aside and a declaration made that their living arrangements constitute a deprivation of liberty within the meaning of s 64(5) of the Act. Periodic independent checks are needed for such vulnerable people to ensure that the arrangements remain in their best interests, although it is not necessary that the checks be as elaborate as those currently provided for in the Court of Protection or in the DOLS.

The judgment and Supreme Court summary are here.