The Supreme Court of the United Kingdom has ruled on two cases involving mentally disabled adults, considering whether their living arrangements constituted a “deprivation of liberty”.
‘Deprivation of liberty’ is a legal concept which refers to restrictions and restraints placed on people with learning disabilities and similar conditions. If the person’s living arrangements are found to constitute a ‘deprivation of liberty’ then the arrangements must, under the Mental Capacity Act 2005, must be court authorised and receive regular independent assessment.
Amongst other requirements, such restraints and restrictions must be in the individual’s best interests and proportionate under the Act.
The first case, P and Q (by their litigation friend, the Official Solicitor) v Surrey County Council, concerned two sisters with learning difficulties. P, also referred to as ‘MIG’, lived with the foster mother and never attempted to leave their home by herself, but if she had tried she would have been restrained. Q, also referred to as ‘MEG’, lived in a residential home and sometimes needed to be physically restrained and tranquillised.
The Court of Protection had ruled that these arrangements did not amount to a deprivation of liberty and this decision was upheld by the Court of Appeal.
However, when the case reached the Supreme Court, the Justices decided, by a majority ruling of 4 to 3, that the sisters had been deprived of their liberty after all.
Delivering the lead judgement, Lady Justice Hale said:
“If the acid test is whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives, then the truth is that both MIG and MEG are being deprived of their liberty. Furthermore, that deprivation is the responsibility of the state. Similar constraints would not necessarily amount to a deprivation of liberty…if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions.”
The second case, P (by his litigation friend, the Official Solicitor) v Cheshire West and Chester Council and another, concerned a man born with cerebral palsy and Down’s Syndrome who requires constant care. When his health deteriorated at the age of 37, he was transferred to special accommodation and receives personal support which allows him to leave his home regularly for special activities and visits.
In an earlier court hearing, a judge had declared that his living arrangements did constitute a deprivation of liberty but that they were in his best interests. However, the Court of Appeal later come to a different conclusion, saying they were not legally a ‘deprivation of liberty’.
But the Supreme Court has unanimously reversed the latter decision.
Lady Justice Hale declared:
“The answer, as it seems to me, lies in those features which have consistently been regarded as “key” in the jurisprudence…that the person concerned “was under continuous supervision and control and was not free to leave” …. A person might be under constant supervision and control but still be free to leave should he express the desire so to do. Conversely, it is possible to imagine situations in which a person is not free to leave but is not under such continuous supervision and control as to lead to the conclusion that he was deprived of his liberty.”
“The National Autistic Society and Mind, in their helpful intervention, list the factors which each of them has developed as indicators of when there is a deprivation of liberty. Each list is clearly directed towards the test indicated above. But the charities do not suggest that this court should lay down a prescriptive list of criteria. Rather, we should indicate the test and those factors which are not relevant. Thus, they suggest, the person’s compliance or lack of objection is not relevant; the relative normality of the placement (whatever the comparison made) is not relevant; and the reason or purpose behind a particular placement is also not relevant.”
Lady Justice Hale concluded:
“In the case of P, the Court of Appeal should not have set aside the decision of the judge for the reasons they gave. Does it follow that the decision of the judge should be restored? In my view it does.”