The President of the Family Division has claimed a recent Supreme Court ruling meant the number of disabled people living in circumstances which deprived them of their liberty was “vastly greater” than previously assumed.
It would mean a “very significant” increase in the number of cases seen by the Court of Protection, he claimed.
Sir James Munby made the remarks following a successful appeal in March to the Supreme Court in P v Cheshire West and Chester Council and Another; P and Q v Surrey County Council when Sir James’ own judgement in the Court of Appeal was overruled.
He had previously ruled on Cheshire West and Chester Council v P in the Appeals Court, the restrictions were nothing more than “the inevitable corollary of … various disabilities”.
However, the Supreme Court ruled otherwise in the ‘Cheshire West case’, as it has come collectively to be known, and held that the living conditions of three people with mental disabilities did amount to deprivation of their liberty by the Local Authorities involved.
Lady Hale, the Deputy President of the Supreme Court, considered the current position in relation to these types of cases in European Convention law and concluded:
“The…Strasbourg …court has not so far dealt with a case combining the following features of the cases before us:
(a) a person who lacks both legal and factual capacity to decide upon his or her own placement but who has not evinced dissatisfaction with or objection to it; (b) a placement, not in a hospital or social care home, but in a small group or domestic setting which is as close as possible to “normal” home life; and (c) the initial authorisation of that placement by a court as being in the best interests of the person concerned.
The issue, of course, is whether that authorisation can continue indefinitely or whether there must be some periodic independent check upon whether the placements made are in the best interests of the people concerned.”
She said it was “axiomatic” that disabled people have the same rights as everyone else, including the right to physical liberty.
“If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person.”
“The fact that … living arrangements are comfortable, and indeed make … life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.”
Lady Hale concluded by saying the courts should err on the side of caution when it comes to deciding what constitutes a deprivation of liberty for disabled people.
“They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the Deprivation of Liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us.”
Two other Supreme Court Justices supported Lady Hale and a total of three others disagreed.
President of the Supreme Court Lord Neuberger, however, agreed with Lady Hale.
“I consider that the Strasbourg court decisions do indicate that the twin features of continuous supervision and control and lack of freedom to leave are the essential ingredients of deprivation of liberty (in addition to the area and period of confinement).”
So as a result, the President of the Family Division publicly announces that the Court of Protection will now be faced with thousands of applications because so many incapacitated people may fall within this definition.
He has warned of the “financial implications for local authorities and significant implications for the administration of justice.”
A lawyer representing the Health Secretary Jeremy Hunt was at today’s hearing before Sir James.
Lawyers representing people involved in cases in a variety of locations – including Sunderland, Northampton, Cornwall, Rochdale, Northumbria and Worcestershire – were also in court.
“I want to try to bring some measure of administrative order and proper process into play in the light of the ramifications of the recent judgment of the Supreme Court,” Sir James told lawyers.
“Numbers of deprivation of liberty (cases) are vastly greater than previously assumed.”
Sir James said there were “implications for the court’s ability to cope” and warned of an “immense burden on local authorities”.
He said there were implications for local authority finances and possible “legal aid problems”.
“A period of uncertainty is inevitable,” he said. “The long-term implications are so significant.”
Sir James added:
“The fact is if 10,000 applications came in tomorrow they could not be dealt with. That is the reality I am afraid.”
He said that could have implications for the UK’s obligations to comply with European legislation.
So here we see the work of and necessity for our Supreme Court, the highest court in this country, whose Judges interpret the law, fearlessly and independently, notwithstanding a government consumed almost entirely with cost cutting in every quarter.
Long may they continue to do so.