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“A gilded cage is still a cage” – the Supreme Court define deprivation of liberty

24 March 2014

“It is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race” (Lady Hale).  No one would disagree with that, but day to day application in how society cares for some of the most intensely vulnerable individuals is rather more problematic.

Put bluntly, there are large numbers of disabled people who have no meaningful control over their own lives, and those charged with responsibility for their care are faced with the reality that in order to care for them safely they must exercise considerable restriction over their freedom.

The very phrase 'deprivation of liberty' is challenging as it carries with it a wholly negative connotation, yet many of the care regimes which lead to total control of another’s life are in fact aimed at giving that individual the most fulfilling life possible, and as such it seems paradoxical to categorise them as causing a deprivation of a fundamental human right. This is the heart of the issue confronting the Supreme Court in the long awaited decision of Cheshire West where the issues surrounding what amounts to a deprivation of liberty were explored.

The Court was in fact considering two cases – P v Cheshire West and P & Q v Surrey County Council. The facts of the two cases were different but raised the same fundamental legal issue: what constitutes a deprivation of liberty?

The patient in Cheshire was at the time of the initial Court of Protection hearing a 38 year old man with cerebral palsy and Down’s syndrome. He was unable to look after himself and required 24 hour care provided in a purpose built bungalow funded by the local authority. He accessed the community with his carers and enjoyed a variety of activities. He required assistance with all activities of daily living. One particular feature of his condition was that he was incontinent and would occasionally try to put pieces of his incontinence pads into his mouth. In order to prevent this he wore a 'body suit' to stop him getting at his pads, as well as having a 'finger sweep' of his mouth to remove material when he did. Regular intervention was required to cope with his challenging behaviours.

P and Q are sisters who were 18 and 17 respectively at the time of the initial hearing. They had a traumatic social background of family neglect and abuse and were placed in foster care by the local authority. By the time of the initial hearing P (also known as MIG) was still living with her foster mother at the latter’s home. She made no attempt to leave home, her bedroom door was not locked and she attended local education facilities. If she had tried to leave home her foster mother would have restrained her to prevent her from doing so. Q (also known as MEG) was living in an NHS unit (not a care home or hospital and therefore outside the scope of the Deprivation of Liberty Safeguards). She had behavioural problems which required staff intervention and carers went with her everywhere.  She also received tranquillising medication, though she had never tried to leave the unit.

"the 'acid test' was whether the person is under continuous supervision and control and is not free to leave."

Both cases had been to the Court of Appeal which had held that all three of them were not deprived of liberty. In both cases, the Court of Appeal’s reasoning had rested to some extent on the 'purpose' of the placement, on it being 'relatively normal', or that their situation was comparable to others with the same disabilities.

In the leading judgment in the Supreme Court, Lady Hale recited the now formidable array of case law arising out of the European Court of Human Rights on the subject and repeated that the well established three constituent elements of a deprivation of liberty are: a) the objective element – confinement to a particular restricted place for a not negligible length of time; b) subjective component of a lack of valid consent and finally c) attribution of the responsibility to the state.

The key question here was how to establish the objective element of deprivation, and Lady Hale said that "the 'acid test' was whether the person is under continuous supervision and control and is not free to leave".

Equally helpfully, the Court was very clear that certain factors are not relevant to the question of whether someone is deprived of their liberty:-

  • the purpose (or reasons, motives) behind the placement
  • whether P is objecting or compliant, or
  • the 'relative normality' of the  placement.

Echoing the widespread criticism of the Court of Appeal judgment in Cheshire, Lady Hale made the astute point that if it the benign purpose of the care regime were to define whether there was a deprivation of liberty at all then the Deprivation of Liberty Safeguards would be virtually meaningless.  The point is that a certain level of intervention in someone’s life should trigger a process of scrutiny to check that it is in their best interests.  To argue that there is no deprivation at all because the care being provided is 'normal' for them, is for the purpose of providing appropriate care, or is just a reflection of their disability, is to 'put the cart before the horse'.

Applying the 'acid test' to the facts of the cases, all 7 judges agreed that P in the Cheshire case was deprived of his liberty (though a minority of the Supreme Court put this in the rather lukewarm way that the original judge – Baker J - had applied the right test and had been entitled to find that there was a deprivation of liberty, though hinting that they may not have reached this conclusion themselves).

The application to MIG and MEG was more finely balanced, with Lady Hale leading a majority of 4:3 in finding that they too had been deprived of their liberty.  The minority – Lords Carnwath, Hodge and Clarke – disagreed, for 4 main reasons.  They argued that (1) MIG and MEG did not object to the placement, (2) the small domestic placement was as close to 'normal' as possible, (3) the Court had authorised the placement was in their best interests, and (4) the regime was no more intrusive than was required for their best interests.

The key to their dissent in MIG and MEG’s case really lies in an instinctive reluctance to find a 'deprivation of liberty' away from an institutional setting, which has always bedevilled the case law and a concern that the Court may be going beyond the limits of what the ECHR has prescribed and therefore whether the Court has the jurisdiction to make the declaration.  Lord Clarke says in terms that "nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty".  That may now have to change.

Agreeing with Lady Hale, the simple response from Lord Kerr is that it is appropriate to describe it as a deprivation of liberty because from an objective perspective that is what is happening – regardless of the motivation that lies behind it, or the quality or appropriateness of the care that is being provided.  As Lady Hale succinctly puts it, "A gilded cage is still a cage".  On the second concern regarding the jurisdiction of the Court Lord Kerr dismissed this fairly robustly by stating that the absence of direct ECHR authority does not absolve the Court from its duty to consider whether there has been a breach of a Convention right.

The implications of this judgment for local authorities, NHS bodies and private sector providers of health and social care will be enormous, and are considered in more detail by Ben Troke here.

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