Laura Davidson summarises and comments on the Supreme Court's decision in <i>Cheshire West and P & Q</i>

Fri, 21 Mar 2014

The Supreme Court Judgment in P (by his litigation friend the Official Solicitor (Appellant) v Cheshire West and Chester Council a and Another (Respondents); P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent) [2014] UKSC 19 came out on 19th March 2014.  Laura Davidson has summarised its conclusions and comments on its implications.

This article can be downloaded as a PDF below.

P (by his litigation friend the Official Solicitor (Appellant) v Cheshire West and Chester Council a and Another (Respondents); P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent) [2014] UKSC 19, Supreme Court, Lord Neuberger (President), Lady Hale (Deputy President), Lord Kerr, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge, 19th March 2014

The Supreme Court Judgment in P and Q and P v Cheshire West has finally been handed down.  P and Q (otherwise known at first instance as Re MIG and MEG (2010) EWHC 785 (Fam)) involved two sisters.  MIG was 18 years of age and was placed with a loving foster family.  MEG was 17 years of age and was one of four residents in a small residential placement.  They both had severe learning disability and required high levels of support.  MEG was at times aggressive and was prescribed medication to allay her anxiety.  The girls were transported to and attended college.  For their own safety, both would have been prevented from leaving their placements had they so attempted, and they were under continuous supervision and control.  Both girls appeared content in their environments and did not seek to leave. 

Mrs. Justice Parker held that neither girl was deprived of their liberty because of the “relative normality” of their placements, and the fact that the restrictions would have been the same wherever they lived, as the relevant comparator was someone with the same complex difficulties.  The fact that the purpose of the restrictions were benign was also held to be relevant to the decision whether or not they were being deprived of their liberty.  The Official Solicitor appealed, and the Court of Appeal upheld Parker J’s decision.

In Cheshire West and Chester Council v P (by his litigation friend, the Official Solicitor) and M [2011] EWHC 1330 (Fam), P had severe learning disabilities and a tendency to aggression and self-harm.  He lived in a small placement with one other resident, and was at times secluded in a special room until he calmed down.  He was made to wear an all in one body suit with a zip up the back as he tended to undress, especially when agitated.  He also had a habit of ingesting his incontinence pads, and at times care staff had to conduct a ‘finger sweep’ of his mouth to ensure he did not ingest them.  Notwithstanding Parker J’s Judgment in MIG and MEG, Mr. Justice Baker held that P was deprived of his liberty, even though similar restrictions would have applied wherever he lived.  The local authority appealed, and the Court of Appeal overturned Baker J’s decision (Cheshire West and Chester Council v P (by his litigation friend, the Official Solicitor) [2011] EWCA Civ 1257).

On appeal to the Supreme Court in the two joined cases (P (by his litigation friend the Official Solicitor (Appellant) v Cheshire West and Chester Council a and Another (Respondents); P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent) [2014] UKSC 19), the Law Lords acknowledged that there was no case in Strasbourg which had considered the types of placement under consideration in the appeals.  They held (narrowly, by 4 to 3) that both MIG and MEG and P had been deprived in their liberty, and that both appeals should be allowed.   They acknowledged that there was no case in Strasbourg which had considered the types of placement under consideration in the appeals.

Lady Hale

Key principles

Human rights have a universal character, founded on the inherent dignity of all human beings, as confirmed in the UN Convention on the Rights of Persons with Disabilities.  A controlled living environment would be a deprivation of the liberty of all.  “What it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities”.  Indeed, “[i]f the fact that the placement was designed to serve the best interests of the person concerned meant that there could be no deprivation of liberty, then the deprivation of liberty safeguards contained in the Mental Health Act would scarcely, if ever, be necessary”.  

Purpose is not relevant, as Austin v UK 55 EHRR 359, MA v Cyprus (Application No 41872/10), 23rd July 2010 and Creanga v Romania 56 EHRR 361 confirmed.  Thus, the concept of “relative normality” in P, partly premised upon the relevance of the reason for and purpose of the placement on the basis of Austin prior to the decision of the ECtHR, was wrong.   She held at 46, “[t]he 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”.   

There was no simple ‘acid test’ for deprivation of liberty.  The Guzzardi test was repeated in all the cases, irrespective of context, but it related to the distinction between restrictions on freedom of movement and a deprivation of liberty.  However, in the instant cases, the persons lacking capacity “were not free to go anywhere without permission and close supervision” (at 48).  The phrase used in HL v UK 40 EHRR 761 and repeated in cases thereafter of “continuous supervision and control and was not free to leave” was a key one. The approach of the interveners, The National Autistic Society and Mind was sensible – factors which were not relevant should be set out, such as a person’s compliance or lack of objection, and the relative normality of the placement.

Cheshire West

In Cheshire West, the Judge at first instance had correctly directed himself as to the three components of a deprivation of liberty derived from Storck v Germany (2005) 43 EHRR 96: (i) was there objectively, actual confinement in a particular restricted space for a length of time which is not negligible? (ii) was that confinement imputable to the state? (iii) Was there a lack of valid consent?

Whether or not a person was free to leave could be tested by determining whether those treating and managing their care exercised “complete and effective control of the person’s care and movements”.  Baker J had correctly concluded that “looked at overall” P was being deprived of his liberty.  The Judge’s decision should be restored.

P and Q

To be a deprivation of liberty, the restrictions must be imputable to the state.  There was little to distinguish between P’s case and that of MEG.  Both she and MIG were being deprived of their liberty if the acid test was whether a person was under the complete supervision and control of those caring for her and not being free to leave the place that they live.  The ECtHR had found “tacit acceptance” relevant in Mihailovs v Latvia (Application no 35939/10), 22nd January 2013, but the appellant had a level of de facto understanding which enabled him to express his objections to his first placement.   Although MIG and MEG were free to express a desire to leave (in which case the local authority indicated that it would have looked for a new placement) the purpose of Article 5 is to ensure that people are not deprived of their liberty without proper safeguards being in place - and to ensure that any interference with their rights are justified.  Lady Hale held at 56 that “[i]t 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.”  Thus, “in the end, it is the constraints [imposed on a person] that matter”. 

Procedure for review

People in MIG and MEG’s position require periodic independent checks on whether the arrangements made for them are in their best interests.  They need not be as “elaborate” as that under the CoP or DoLS “which could in due course be simplified and extended to placements outside hospitals and care homes” (para.57).  Both appeals should be allowed.

Lord Neuberger

As it was highly desirable to have as focussed a test as possible, Lord Neuberger indicated at 61 that Lady Hale’s approach should be adopted “unless there is good reason not to do so”.  The Strasbourg decisions indicated 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)” (para.63). 

Austin v UK (2012) 55 EHRR 359 and Creanga v Romania (2012) 56 EHRR 361 clarified that the fact that “the object is to protect treat or care in some way for the person taken into confinement” has “no bearing on the question whether that person has been deprived of his liberty, although it might be relevant to the subsequent inquiry whether the deprivation of liberty was justified” (para.66).  Non-objection cannot be a factor to be taken into account in relation to whether circumstances amount to a deprivation of liberty because

(1) it would be a “recipe for uncertainty”;

(2) it would undermine the universality of human rights; and

(3) it was contrary to principle.

His Lordship observed at 67 that “such a conclusion would mean that, however confining the circumstances, they could not amount to a deprivation of liberty if the person concerned lacked the capacity to object”. 

The fact that the court approves a placement as being in a person’s best interests equally cannot render the circumstances not a deprivation of someone’s liberty.  It may justify the deprivation but it cannot do so for “a potentially unlimited future” (para.70).  Furthermore, “the benignly intimate circumstances of a domestic home would frequently help to render any deprivation of liberty easier to justify” (para.72). 

Lord Kerr

Whether someone has been deprived of their liberty must be “determined primarily on an objective basis”.   Parker J had been incorrect in adopting a subjective approach to whether or not there was a deprivation of liberty.  Lord Kerr held at 76 that “[l]iberty means the state or condition of being free from external constraint. It is predominantly an objective state. It does not depend on one’s disposition to exploit one’s freedom. Nor is it diminished by one’s lack of capacity”.  His Lordship held at 78 that “[b]ecause the restriction of liberty is – and must remain – a constant feature of their lives, the restriction amounts to a deprivation of liberty.” 

In terms of the purpose of restrictions, Lord Kerr held at 82 that “[b]enevolence underpinning a regime which restricts liberty is irrelevant to an assessment of whether it in fact amounts to deprivation.”  He further held at 84 that “[p]lacing restrictions on someone’s liberty for their own good or even to make available to them a range of activities that they might not otherwise be capable of does not transform the restrictions into something less than constraints.  To suggest that the purpose of the restriction is relevant to whether it amounts to a deprivation of liberty is to conflate the object of the restraints with their true character.”

Lord Carnwath and Lord Hodge, dissenting

Lords Carnwath and Hodge were concerned (at 89) about the potential “bureaucracy of the statutory procedures”.  They accepted that measures which were the least restrictive necessary to protect a person’s well-being were principally relevant to the justification of the regime rather than its nature, but considered that the degree of intrusion in someone’s life was still relevant as to whether or not it amounted to a deprivation of liberty.  They placed significant emphasis on s.64(5) of the MCA 2005 which states that “[i]n this Act, reference to deprivation of liberty have the same meaning as in Article 5(1) of the Human Rights Convention”, rather than s.2 of the Human Rights Act 1998.  (Section 2 states that that “[a] court or tribunal determining a question which has arisen in connection with a Convention right must take into account any judgment, decision, declaration or advisory opinion of the European Court of Human Rights” opinion or decision of the Commission or decision of the Committee of Ministers).

However, the Strasbourg court had not yet considered a case similar to those in the instant appeals, and in the absence of clear jurisprudence, their Lordships considered (at 93) that “we should be cautious about extending a concept as sensitive as “deprivation of liberty” beyond the meaning which it would be regarded as having in ordinary usage.”  People living happily in a domestic setting could not be described in ordinary language as being deprived of their liberty. 

Although Stanev v Bulgaria (2012) 55 EHRR 696 was a particularly important case, it related to state-run social care institutions, rather than “more domestic care institutions” as in the present appeals.  It was noteworthy that when HL returned to his carers, it was not suggested that he was being deprived of his liberty because it was an ordinary home environment, even though the degree of control would have been the same for practical purposes as in the hospital.

Their Lordships agreed that the comparator should in principle be “a person with unimpaired health and capacity”.  However, they also held at 94 that Lady Hale’s proposed universal test, applicable to all regardless of any physical or mental disabilities “is not a concept…reflected in the Strasbourg cases”, and the ECtHR had “remained wedded to a case-specific test”. 

P and Q

The two dissenting Law Lords held at 101, “[n]o doubt P and Q can be said to have had their liberty restricted, by comparison with a person with unimpaired health and capacity.  But that is not the same as a deprivation of liberty.”  Parker J’s findings at paragraphs 228-229 were consistent with Strasbourg jurisprudence; the “concrete situation” was one where MIG and MEG were living relatively normal lives and they were not confined in a restricted space for a non-negligible length of time.

Cheshire West

In Cheshire West, occasional restraint for purely therapeutic purposes should not be enough in itself to tip “restriction” over the edge into “deprivation”.  It was a “marginal case”, and the Judge’s decision should not have been interfered with.  Baker J directed himself correctly on the legal principles and his conclusion was one which was reasonably open to him to reach.  Therefore the appeal in Cheshire West should be allowed.  The appeal in P and Q should be dismissed.

Lord Clarke, dissenting

P and Q

In P and Q, Parker J was correct to conclude that the mere lack of capacity could not in itself create a deprivation of liberty, as it would mean that everyone placed by a local authority would fall within that definition.  MIG and MEG plainly had no subjective sense of confinement.  The girls’ liberty was interfered with, but they were not deprived of their liberty; people living happily in a domestic setting could not be described as being deprived of their liberty.  Parker J had not been adopting a subjective approach as suggested by Lord Kerr; she was carrying out an objective assessment of the various factors in arriving at her conclusion. 

Cheshire West

The appeal in Cheshire West should be dismissed, as the conclusions of the Judge at first instance should not have been interfered with.  The appeal in P&Q should be dismissed.

Comment:

Happily, common sense has finally prevailed; the tortuous line of authorities on deprivation of liberty following these two decisions can be consigned to history (unless and until the case goes to Strasbourg).  This Supreme Court decision was undoubtedly the correct one to restore reason to the process of assessing what amounts to a deprivation of liberty.  The two Court of Appeal decisions had effectively denied those lacking capacity their Article 5 rights.  Lady Hale’s judgment is clear and measured. 

It is clear that Lady Hale puzzled over the decision in Mihailovs v Latvia (Application no 35939/10), 22nd January 2013 in which the ECtHR appeared to find “tacit acceptance” relevant to deprivation of liberty.  Her Ladyship explained the apparent dissonance with other case law by suggesting that it hinged on the fact that the appellant had a “level of de facto understanding” which enabled him to express his objections to his first placement.  If a lack of dissent is irrelevant to the question of whether or not circumstances amount to a deprivation of liberty, then the appellant’s previous dissent to a different placement can add nothing of probative value to a different situation where he did not voice objections.  As Lady Hale observed, HL v UK 40 EHRR 761 made it clear that “compliance is not enough”.  Furthermore, even if someone who lacks capacity was able to communicate that they were perfectly happy with all of the restrictions in place, they would be unable to give valid consent.  It is well known, if not frequently expressed, that some ECtHR decisions are better than others - and Mihailovs might be more simply explained as one of the less enlightened ones.

In terms of practice, it is of note that Lady Hale held that the checks need not be as “elaborate” as that under the CoP or DoLS “which could in due course be simplified and extended to placements outside hospitals and care homes”.  No doubt she had in mind the criticisms of the MCA 2005 and the DoLS process provided to and set out in the House of Lords Select Committee on the Mental Capacity Act 2005 (Report Mental Capacity Act 2005: post-legislative scrutiny, 25th February 2014).  It is unclear what less “elaborate” process she might have had in mind, but no doubt various High Court CoP Judges will express their own opinions on this in due course.

Lord Neuberger considered that in domestic circumstances, the degree of supervision and control of someone lacking capacity and the freedom to leave might take the situation out of Article 5(4).  It would appear that he meant to refer to Article 5(1), given that Article 5(4) relates to the right to a speedy challenge of the lawfulness of a deprivation of liberty.  Before Article 5(4) can apply, first a deprivation of liberty must be established.  His Lordship pointed out that although court approval may justify a deprivation of liberty, it cannot do so for “a potentially unlimited future”, because of the need for regular reviews of detention under Article 5(4).

The concept of the “relative comparator” was given short shrift by Lord Kerr who held at 77 that “[t]he question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited.  Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place.”  The author has previously argued this point in several articles.

Lord Kerr’s view was in stark contrast to that of Mrs. Justice Parker at first instance in P and Q.  Her Ladyship had considered that due to the disabilities of a person who lacks capacity, various restrictions necessary in their best interests were ‘relatively normal’ for the two girls, and so those restrictions could not be causative of a deprivation of their liberty.  Lord Kerr, however, held that such restrictions amounted to a deprivation of liberty “[b]ecause the restriction of liberty is – and must remain – a constant feature of their lives.” 

Lord Carnwath and Lord Hodge praised the experienced Judges in the courts below who had “laboured to keep the concept of deprivation of liberty in touch with the ordinary meaning of those words”.  It is somewhat difficult to agree, given the confusion in practice caused by the two Judgments.  Furthermore, taking a common sense approach, it is twisting the “ordinary meaning” of the effect of significant restrictions to suggest that the same restrictions might amount to a deprivation of liberty for a person with capacity, yet would not amount to a deprivation of liberty for someone lacking capacity.

Finally, it is noted that Lord Clarke held that “[i]n a non legal sense they [MIG and MEG] have the capacity to consent to their placements”.  It is entirely unclear what he meant by that.  Certainly, as Lady Hale has made abundantly clear, apparent contentedness or the absence of dissent from someone lacking (legal) capacity is proof of neither consent nor happiness. 

The dissenting Judges, Lord Carnwath and Lord Hodge, were concerned that the majority were extending the definition of “deprivation of liberty” beyond the meaning which it would be regarded as having in ordinary usage.”  They observed that people living happily in a domestic setting could not be described using ordinary language as being deprived of their liberty.   Yet the ordinary man on the Clapham omnibus surely would consider that a person whose life and movements were being completely controlled by others to be deprived of their liberty.

Their Lordships agreed that the comparator should in principle be “a person with unimpaired health and capacity”.  However, oddly they also held that Lady Hale’s proposed universal test, applicable to all regardless of any physical or mental disabilities “is not a concept…reflected in the Strasbourg cases”.  With respect to Cheshire West, they indicated that occasional restraint for purely therapeutic purposes (as with the finger-swiping by P’s carers to remove incontinence pads that he had ingested) should not be enough in itself to tip “restriction” over the edge into “deprivation”.  It should be noted that it is quite clear, as Lady Hale observes, that Baker J. considered the cumulative effect of the various restrictions upon P, “looked at overall”, to amount to a deprivation of P’s liberty.

Sadly, there is still a chink in the armour left open by Lord Neuberger’s comment at 61 that Lady Hale’s approach should be adopted “unless there is good reason not to do so”.  No doubt at some point a lawyer will seize upon this as a reason to depart from the clarity finally restored to this needlessly overly-complicated area of law.

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