What constitutes a deprivation of liberty? ("A gilded cage is still a cage")
Professor Richard Jones, considers the decision of the Supreme Court in P v Cheshire West and Chester Council; P and Q v Surrey County Council.
In the case of Secretary of State for the Home Department v JJ, which was decided in the House of Lords in 2007, Lady Hale said:
“My Lords, what does it mean to be deprived of one’s liberty? Not, we are all agreed, to be deprived of the freedom to live one’s life as one pleases. It means to be deprived of one’s physical liberty … And what does this mean? It must mean being forced or obliged to be at a particular place where one does not choose to be … But even that is not always enough because merely being required to live at a particular place or to keep within a particular geographical area does not, without more, amount to a deprivation of liberty. There must be a greater degree of control over one’s physical ability than that. But how much?”
The Supreme Court addressed this question in P v Cheshire West and Chester Council; P and Q v Surrey County Council which are cases about the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, then the deprivation has to be authorised, either by the Court of Protection or by the deprivation of liberty safeguards, set out in the Mental Capacity Act. The Supreme Court was required to analyse the, occasionally inconsistent, case law of the domestic courts and the European Court of Human Rights (ECtHR) of the meaning of a deprivation of liberty, which can occur in either a domestic of institutional setting. The following description of the situation of the individuals who were the focus of the hearing is taken from the press summary prepared by the Supreme Court:
“P and Q (otherwise known as MIG and MEG) are sisters who became the subject of care proceedings in 2007 when they were respectively 16 and 15. Both have learning disabilities. MIG was 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.
P is an adult born with cerebral palsy and Down’s syndrome who requires 24 hour care. Until he was 37 he lived with his mother but when her health deteriorated 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.”
The scope of the right to physical liberty
The “first and most fundamental question” before the Court was whether the concept of physical liberty protected by article 5 of the European Convention on Human Rights is the same for everyone, regardless of whether or not they are mentally or physically disabled. Lady Hale, who gave the lead judgment, gave a forthright answer:
“[I]t is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.
Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focused right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. 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 my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.”
How to identify a deprivation of liberty?
Lady Hale examined the relevant case law of the ECtHR to identify the essential character of a deprivation of liberty. Three components were identified: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state. Components (b) and (c) were not in issue before the Court, but component (a) was. With regard to component (a), her Ladyship said at para.38:
“Simply asking whether a person is ‘confined’ is not enough except in obvious cases. The ‘starting point’ is always upon the ‘concrete situation’ of the particular person concerned and ‘account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measures in question’ [see Guzzardi v Italy (1981) 3 E.H.R.R 333, para.92]. The presence or absence of coercion is also relevant. Thus there is no single ‘touchstone’ of what constitutes a deprivation of liberty in this or any other context.”
Lady Hale identified the “acid test” for a deprivation of liberty as being the fact that the person concerned was under continuous supervision and control and was not free to leave. The supervision and control is not relevant only insofar as it demonstrates that the person is not free to leave as 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.”
Rather than attempt to lay down a prescriptive list of criteria for a deprivation of liberty, Lady Hale identified the factors that are not relevant to the determination. They are:
- the person’s compliance or lack of objection
- the relative normality of the placement (whatever the comparison made); and
- the reason or purpose behind a particular placement
Lord Neuberger qualified point (i) by referring to “those rare circumstances where the absence of objection can be said to amount to consent, as in Mihailovs v Latvia  ECHR 65, paras 138-139”. If a person has validly consented to his or her confinement, there can be no deprivation of liberty.
The consequence of point (ii) is that the Court rejected the “relative normality” approach of the Court of Appeal in the P case, where the life which P was leading was compared with the life which another person with his disabilities might be leading. It is also the case that the fact that all that could be done for the person is being done does not determine whether a deprivation exists. Lady Hale said:
“[T]he purpose of article 5 is to ensure that people are not deprived of their liberty without proper safeguards, safeguards which will secure that the legal justifications for the constraints which they are under are made out: in these cases, the law requires that they do indeed lack the capacity to decide for themselves where they should live and that the arrangements made for them are in their best interests. It is to set the cart before the horse to decide that because they do indeed lack capacity and the best possible arrangements have been made, they are not in need of those safeguards.”
It is important to note that to be deprived of his or her liberty the person must be under continuous supervision and control and not free to leave. What constitutes continuous supervision and control? It is clearly something more substantial that occasional supervision and control. No guidance was provided on this issue by the Court, but in her Judgment Lady Hale referred to the case of Guzzardi v Italy, above, where the ECtHR said that the supervision was carried out “strictly and on an almost constant basis”. Given that “continuous” means “without a break” (Shorter OED), it is suggested that a very significant degree of supervision and control has to be provided before the test is satisfied. Although the point at which the two merge is not always easy to discern, it is important to recognise that control, which involves the exercise of power to ensure that something happens to a person, is not the same as support, which is to help and/or encourage a person to do something.
In the cases before the Court, not free to leave meant “not free to go anywhere without permission and close supervision”. As ‘account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measures in question’ before a determination is made as to whether a person is deprived of his or her liberty, consideration should be given the context of the restrictions that are being imposed. For example, it is suggested that a person who is being treated in the intensive care unit of a hospital would not be the subject of a deprivation of liberty because of the type and manner of the restrictions that are being imposed.
Deprivations of liberty in domestic settings
With regard to the situation of MIG and MEG, Lady 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 for the purpose of article 5 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.”
A minority of the Justices did not agree with this conclusion on the ground that nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty.
Lady Hale made the following comments under this heading:
“Because of the extreme vulnerability of people like P, MIG and MEG, I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty in their case. 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.”
The Court allowed the appeal of P and Q against Surrey County Council (unanimously), as well as the appeal of P against Cheshire West and Chester Council (by a majority).
Implications of the judgement
Although the judgment clarifies the law by rejecting the relative normality approach adopted by the Court of Appeal, practitioners will continue to be faced with the difficult task of deciding whether a person is subject to continuous supervision and control and is the free to leave the place where he or she is. Only limited guidance was provided by the Court on this issue. Of particular significance is Lady Hale’s finding that a person would not be deprived of his or her liberty in a situation where that person was not free to leave, but was not the subject of continuous supervision and control within the institution. As noted above, the continuous supervision and control test is not easily satisfied. The fact that a deprivation of liberty can occur in a situation where the person concerned is perfectly happy to be where he or she is also a significant finding.
As deprivations of liberty in domestic settings and in supported accommodation are covered by the judgment, local authorities will need to consider whether applications will need to be made to the Court of Protection to regularise any existing deprivations of liberty. In domestic settings, a deprivation of liberty will not occur if the restraints placed on a child are imposed in the exercise of parental authority in the absence of state intervention in the life of the child.
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