The Supreme Court has handed down its landmark judgment in the cases of P v Cheshire West and Chester Council; P & Q (aka MIG and MEG) v Surrey CC  UKSC 19. The court found that P, MIG and MEG were all deprived of their liberty and that in considering the concrete situation of a person who may be deprived of his liberty attention should focus in particular on whether the person concerned is under continuous supervision and control and is free to leave.
What were the cases about?
These two cases deal with whether and when the circumstances of a person who cannot make a decision about his care and residence amount to a deprivation of liberty. Where they do, that person requires a protective regime to uphold his human rights in accordance with Article 5(4) of the European Convention on Human Rights.
Background to both cases
P required continuous and intensive support in a staffed bungalow where he had been placed in 2009, pursuant to a court order. A court declaration confirmed that the arrangements were a deprivation of liberty but in his best interests. MIG and MEG were sisters and both had learning disabilities. MIG was placed with a foster mother and would have been prevented from leaving had she tried; MEG was in a residential home and sometimes required physical and chemical restraint. By contrast with P, the first instance judge found that there was no deprivation of liberty arose.
The Court of Appeal held that neither sets of circumstances amounted to a deprivation of liberty on the grounds of the relative normality of the lives of P, MIG and MEG.
What did the Supreme Court decide?
The Supreme Court unanimously agreed that P's circumstances amounted to a deprivation of liberty. Likewise, MIG and MEG were under continuous supervision, not free to leave and were under the responsibility of the State by virtue of having been placed in foster/residential care. This would not apply to constraints imposed by parents in the exercise of their ordinary parental responsibilities where this is outside the legal framework governing state intervention in the lives of children or people who lack capacity to make their own decisions.
In essence the rationale behind this decision is that the right to physical freedom is a right which should not be tailored according to a person's mental or physical disability. The court sympathised with the intention of the Court of Appeal, which was to try and limit the scope for uncertainty about whether someone is being looked after lawfully. The point is, however, that in order to secure a person's human rights they must be applied universally.
The decision was not unanimous. The leading judgment of Lady Justice Hale set out the straightforward proposition that human rights should apply equally and evenly; the constant underlying feature which led to a conclusion that a person is deprived of his liberty is where he is under continuous supervision and control and is not free to leave. Lords Neuberger and Sumption agreed. Lord Kerr also agreed, making the point that the assessments undertaken by the first instance judge in the MIG and MEG case looked at the subjective circumstances and since the test for a deprivation of liberty is an objective one, the judge's decision should be overturned. Lord Kerr concluded, like Lords Hale, Neuberger and Sumption that MIG and MEG had been deprived of their liberty, as had P.
Lords Carnwath, Hodge and Clarke dissented. They agreed that Baker J's decision should stand, albeit only because he applied the law correctly; they indicated that Parker J in MIG and MEG was right to find there was no deprivation of liberty and had not applied the law on a subjective basis. As is apparent, there will be circumstances where different conclusions can be reached on the same set of facts by different people.
A point made by Munby LJ in the Court of Appeal was that children are in a similar position to some incapable adults, and it is normal for them to be deprived of their liberty in a way no adult would accept. The Supreme Court explained that this is merely the exercise of the right of someone with parental authority and in any event such cases would not normally fall within the ambit of Article 5 as there is no State involvement.
The concept of relative normality
The concept of relative normality has been rejected. That was introduced by the Court of Appeal and meant that deciding whether an incapable person was deprived of his liberty depended on a consideration of what the circumstances of someone of a similar disability might be subjected to. Where a person of normal ability might be deprived of his liberty, it did not mean that someone who was incapable would be.
The Supreme Court held that "it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race" (Hale LJ, paragraph 45).
What is the test for deprivation of liberty now?
To establish whether someone is deprived of their liberty, the relevant test has been slightly modified. The well-known principles developed by the European Court still apply:
- It remains the case that the difference between restriction and deprivation is a matter of intensity and degree, not nature and substance; the starting point in any consideration must be the concrete situation of the person involved and account must be taken of the type, duration, effects and manner of implementation of the measures in question
- There should always be consideration of whether, objectively, the patient is deprived of his liberty as well as his own views if he is capable of giving them (the subjective element). The State has to be responsible for the deprivation
- The key question to ask is whether the person is under continuous supervision and is not free to leave.
- Irrelevant factors include an incapable person's compliance or lack of objection, the relative normality of the placement and the purpose it was created for.
Outstanding problems from the judgment?
There are two key problems which have not quite been cleared up by this judgment. The first is that there is no algorithm or formula which, if applied correctly, will lead to confirmation of whether a person is deprived of his liberty in any given case. That was probably expecting too much of the Supreme Court although Lady Justice Hale's guidance does simplify the existing test somewhat. The second is that even if a deprivation of liberty is established, the correct legal framework will still have to be applied. Sometimes those circumstances can be shoe-horned into one regime or another, but often patients, families and carers end up facing expensive court proceedings or the bewildering maze of the Deprivation of Liberty Safeguard procedure.
What is the practical impact of this case?
- In assessing whether an incapable person is deprived of his liberty, the focus should be on his concrete situation and in particular whether he is under continuous supervision and control and is not free to leave.
- Incapable individuals not currently subject to an appropriate regime under the Mental Capacity Act or Mental Health Act, but who may be deprived of their liberty, will need to have their circumstances reviewed with a view to ensuring that they are cared for lawfully.