Sun, 08 Dec 2013
By Laura Davidson
In P and Q v Surrey County Council and Others  EWCA Civ 190, the Court of Appeal approved Parker J’s suggested new “relative normality” test for assessing whether or not someone was being deprived of their liberty. If someone’s disabilities and difficulties necessitate assistance which is a significant interference in their life regardless of where they reside, then they are living a relatively normal life ‘for them’. Thus the circumstances are unlikely to amount to a deprivation. This concept purports to emanate from Engel v Netherlands (1976) 1 EHRR 647, despite its focus on the limitations of the army regime upon a soldier’s lifestyle, rather than a person’s individual characteristics (see ‘Turning back the clock’, SJ Vol. 156, No. 22, 10-13).
In Cheshire West and Chester Council v P  EWCA Civ 1257 the Court of Appeal relied on Engel as authority for the need for a comparator when deciding whether restrictions upon someone’s liberty might amount to detention. Since the relevant comparator in Engel was not a civilian, but another soldier who was not subject to the penalty or measure in question, the Appellate Court held that “in the case of an adult with disabilities, the relevant comparator is an adult of similar age with the same capabilities and affected by the same condition or suffering the same inherent mental and physical disabilities and limitations”. The type of circumscribed life led by P was the benchmark to be used “to assess how far he is nonetheless able to pursue a normal life”. The judge at first instance had failed to grapple with “whether the limitations and restrictions on P’s life at Z House are anything more than the inevitable corollary of his various disabilities”. P’s life did not differ from that led by “anyone with his concatenation of difficulties could normally expect to lead, wherever and in whatever kind of setting they were living”.
The comparator approach blurs into Parker J’s “relative normality” principle. The raison d’etre of the Court of Protection is to protect those “whose lives are dictated by their own cognitive and other limitations” since “some people are inherently restricted by their circumstances” (per Parker J in P and Q at first instance), and therefore a certain loss of freedom is inevitable to keep them healthy and safe. Where a disabled person is able to experience any relatively ‘normal’ elements of the life of a non-disabled person – e.g., school or receiving visitors – it is unlikely a deprivation of liberty in law can take place.
In determining whether a deprivation of liberty is occurring, why should the existence of disabilities matter? In Cheshire West, P could not “go anywhere or do anything without…support and assistance”, but that was “not something imposed upon him by Z House” since he would require it wherever he was living. But who decides what P “requires”? Certainly not P. The person who lacks capacity most often has little autonomy or control over most aspects of his life. P frequently had someone’s hand in his mouth, was forced to wear a body suit, and was sometimes restrained and secluded, including being strapped into his wheelchair “for his own safety”. These measures were necessary in P’s best interests and would occur regardless of placement, and so the Court of Appeal concluded he was not deprived of his liberty.
Counsel for the Official Solicitor in Cheshire West argued that “the concept of ‘relative normality’ lacks analytic coherence”. A cynic might observe that it will significantly reduce the burden on the Court of Protection, whilst saving costs by rendering administrative and court reviews unnecessary. Munby LJ’s insidious finding that “what may be a deprivation of liberty for one person may not be for another” means that a person in receipt of care and restricted by safety measures has an illusory right to liberty. Accordingly, there need be no review of detention (which is not taking place), and no payment of damages (there being no detention). If care for a person with disabilities involves significant restrictions on their liberty, Article 5 cannot be violated.
Yet a layman would immediately conclude that P was being deprived of his liberty at Z house. If the correct comparator was a person without disability, he would be detained. To suggest that deprivation of liberty is person-specific according to personal characteristics, rather than by objectively assessing the restrictions in place is a nonsense. A person is either deprived of their liberty or they are not. The conditions of detention such as its nature and the severity of restrictions imposed upon someone are not rendered irrelevant because of the personal characteristics of the person subject to them. Just as a tortfeasor or criminal must take his victim as he finds him, the egg-shell skull rule ought to apply; someone with a disability is more likely, rather than less, to be deprived of their liberty because they lack capacity to give valid consent and may be unable to escape the restrictions. Further, a benign motive and consideration of a person’s best interests cannot alter the quality of restrictions, rendering them non-detentive. It is for precisely those reasons that a regular review of measures depriving the most vulnerable in society of their liberty is so vital.
To return to first principles, if a person is of “unsound mind” under Article 5(1)(e) ECHR, detention may be justifiable. However, to avoid being arbitrary, the deprivation must be in an appropriate health institution for a therapeutic purpose. But purpose, aim and motive are intrinsically tied up with best interests, not the engagement of Article 5, as the ECtHR held in Austin v UK (Applications 39692/09, 40713/09 and 41008/09 – see also SJ Vol. 156, No.29): “the purpose behind the measure in question is not mentioned in the…judgments as a factor to be taken into account when deciding whether there has been a deprivation of liberty”. Furthermore, a public interest motive, or “where the object is to protect, treat or care in some way for the person taken into confinement” can only be relevant as to whether a deprivation of liberty is justified under one of the sub-paragraphs of Article 5(1), in the absence of valid (capacitous) consent to detention. Conversely, “matters relating to execution of the detention, such as the place, environment and conditions of detention” are relevant as to whether or not there is a deprivation of liberty, rather than as to its lawfulness, since Article 5(1)(e) “is not in principle concerned with suitable treatment or conditions” (Ashingdane v UK (1985) 7 EHRR 528). Thus, the difference in severity of two institutional regimes in Ashingdane “were not such as to change the character of his deprivation of liberty”.
The potential discriminatory effect of the Court of Appeal Judgment in Cheshire West “insofar as it [the comparator principle] may permit some people to be denied a declaration of deprivation of liberty in circumstances where others would be entitled to such a declaration” has not gone unnoticed by the Judge at first instance (see CC v KK and STCC  EWHC 2136 (COP)). Why should a person’s disabilities make them less entitled to the protection afforded to others under Article 5? That must be contrary to Article 14 of the ECHR which states: “The enjoyment of the rights and freedoms…shall be secured without discrimination on any ground.” P’s difficulties in Cheshire West would fall within the definition of “disability” in s.6(1) of the Equality Act 2010. He is being treated less favourably than his able-bodied and able-minded counterparts whose liberty in the same circumstances would be found curtailed – and who therefore would be entitled to Article 5(5) compensation and regular Article 5(4) reviews. Additionally, P’s non-disabled equivalent would be entitled to damages for “unjustified less favourable treatment for a reason which relates to the disabled person’s disability” (S v Floyd (The Equality and Human Rights Commission intervening)  EWCA Civ 201). P, however, is not.
Interestingly, in London Borough of Lewisham v Malcolm  UKHL 43 the Supreme Court dealt quite differently with the issue of comparators when examining the predecessor of the Equality Act 2010. The case focused on whether a local authority could bring lawful possession proceedings against a schizophrenia sufferer. The Act stated that discrimination would occur where, for a reason which related to the person’s disability, they were treated “less favourably” than others to whom that reason did not apply. It was held that rather than the relevant comparator being someone with the same illness, it was someone with no mental illness undertaking the same prohibited conduct for reasons unrelated to disability.
The ECtHR found violations of Article 5 in Stanev v Bulgaria  ECHR 46, DD v Lithuania  ECHR 254 and Kedzior v Poland (Application 45026/07) where on the current state of English law our courts would find none. With the notable exception of In the matter of LDV  EWHC 272 (Fam), the UK’s departure from the ECtHR jurisprudence on deprivation of liberty may violate the United Nations’ Convention on the Rights of Persons with Disabilities,in force here since 2011. Article 1 requires the promotion and protection of, and the requirement to ensure, “full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity”. By Article 14, state parties are required to “ensure that persons with disabilities, on an equal basis with others…enjoy the right to liberty and security of the person…and that the existence of a disability shall in no case justify a deprivation of liberty”. To declare that the person is not being deprived of their liberty is no answer if the conclusion is drawn due to discriminatory law applied to their detriment – a possible breach of Article 17 ECHR. Further, Article 14(2) requires state parties to “ensure that if persons with disabilities are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law”.
Munby LJ seized upon the comparator concept in Cheshire West as “something…which enables us to pursue a more focused and less time-consuming enquiry” in order to avoid “the worrying and ultimately stultifying conclusion that the decision in every case can safely be arrived at only after a minute examination of all the facts in enormous detail”. However, the concept of the comparator is misconstrued. Why need a comparator be applied at all? Just as all have equal human rights, in the absence of consent the test for deprivation of liberty must be objective. On examination of the various restrictions in place, would the man on the Clapham Omnibus consider P to be deprived of his liberty? It matters not whether such restrictions are imposed or accepted, or whether the person subjected to them is capacitous, disabled or otherwise.
The right to liberty is fundamental, appropriately prized and protected by a subsidiary right of review and a right to damages for those unlawfully robbed of it. After the enactment of the supposedly protective and enabling Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards has HL v UK taught us nothing? The Court of Appeal has left the most vulnerable with no meaningful Article 5 rights. In the author’s view, its decisions in both P and Q and Cheshire West have sinister consequences and are plainly wrong and unlawful. It is to be hoped that the much anticipated Judgment from the Supreme Court will restore Article 5 protection for those lacking capacity, requiring a proper consideration of the facts in every case, regardless of how “time-consuming” the exercise might be.
Laura Davidson is a London barrister specialising in healthcare law and human rights at No5 Chambers. Please click here to view her profiles.
This article was first published by the Solicitors Journal in 2013, and is reproduced by kind permission.