P and Q by the Official Solicitor, their Litigation Friend v Surrey County Council and Others (Equality and Human Rights Commission, Intervener)  EWCA Civ 190- read judgment
What does it mean to be “deprived of liberty”? This is not an easy question, and there are a wide variety of relevant factors. For instance, the amount of space a person is free to roam in, the degree of supervision and the amount of time away from their main residence are matters which are likely to vary greatly from case to case. There are many borderline cases.
In an important recent case, the Court of Appeal has found that there was no deprivation of liberty, within the meaning of Article 5 of the European Convention on Human Rights, when two people with moderate to severe learning difficulties are cared for in a foster home and a specialist home for adolescents respectively.
P and Q are sisters. They both have learning difficulties. P has a mental age of 2 1/2, while Q has a mental age of 4 to 5. They lack mental capacity in relation to making decisions on anything other than day-to-day trivialities. Their incapacity is almost certainly permanent. Their previous home life had been dysfunctional and abusive.
This appeal was against a decision of Mrs Justice Parker in the controversial Court of Protection, who had declared that their living arrangements did not amount to a deprivation of liberty. Article 5 provides:
1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law –
(e) the lawful detention … of persons of unsound mind …;
4 Everyone who is deprived of his liberty by … detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
If P and Q were found to have had their liberty deprived, Article 5(4) would mean that the courts had a duty to review the need for the continuation of their particular living arrangements periodically.
The Deprivation of Liberty Test
The Court noted that the European Court of Human Rights had given guidance on the test to be applied:
…a deprivation of liberty has three elements:
(a) “the objective element of a person’s confinement to a certain limited place for a not negligible length of time”: Storck v. Germany (2005) 43 EHRR 96, at ;
(b) the “additional subjective element [that] they have not validly consented to the confinement in question”: the Storck case, also at ; and
(c) the confinement must be “imputable to the State”: the Storck case, at .” (Paragraph 17, Wilson LJ)
So, a deprivation of liberty within the meaning of Article 5 is a confinement to a particular place for more than a short length of time (the “objective element”), to which the person does not consent, and the confinement is carried out by or on behalf of the state.
Happiness/ Objection to Confinement
Lord Justice Wilson, with whom the others agreed, considered whether the fact that a person was happy in their living conditions was a relevant factor to the first branch of the test- the “objective element”. He concluded that it was not. This has to be correct: a person involuntarily imprisoned in a jail for a substantial period of time is clearly deprived of liberty, but may be happy in this situation.
However, he did consider that whether a person objects to having their liberty deprived is relevant to the “objective element”:
If a person objects to the confinement, the consequence will be conflict. At the very least there will be arguments and she will suffer the stress of having her objections overruled. More probably… there will be tussles and physical restraints and even perhaps her forcible return at the hands of the police. This level of conflict inherent in overruled objections seems to me to be highly relevant to the objective element. Equally, however, the absence of objections generates an absence of conflict and thus a peaceful life, which seems to me to be capable of substantial relevance in the opposite direction. (Paragraph 25)
He also thought that the administration of medication, especially antipsychotics and tranquilisers, always points to the existence of the “objective element”. This is even more so when the medication is administered forcibly. The reason for this is that “it suppresses her liberty to express herself as she would otherwise wish” (paragraph 26, Wilson LJ) and it may suppress the person’s ability to raise objections to the situation.
Parker J had considered it relevant to examine why the arrangements in question had been put into place. Wilson J did not agree that the fact that the arrangements were intended to further the best interests of the sisters was relevant to whether they were deprived of their liberty, but he did consider that the relative normality of their living conditions was significant. He noted that there is a wide spectrum of different institutions which might fall to be considered, ranging from hospitals designed for compulsory detention, to small children’s homes. Further,
Of potentially great relevance in the case of children or young adults is whether, as would be normal almost irrespective of the degree of any disability, they go out to some sort of school or college; and, in the case of other adults, whether they go out to college or to a day centre or indeed in order to pursue some form of occupation (paragraph 29, Wilson LJ).
The more similar a person’s living conditions are to people in the same age group in mainstream society, the less likely it is that the person is deprived of liberty.
Lady Justice Smith and Lord Justice Mummery both considered whether the conditions in which the person concerned had lived previously were relevant. Mummery LJ found very attractive the argument that as P and Q had been removed from an abusive household and placed in much more suitable, protective environments, their liberty had been enhanced in their newer circumstances. However, he noted that the argument “risks confusing matters which affect whether a deprivation of liberty is lawful with whether it exists at all” (paragraph 52).
Smith LJ went further. She considered that the previous living arrangements of the person concerned are not relevant at all to the question of whether the person is currently deprived of liberty. A person could be subjected to a series of very different living circumstances, none of which, all of which or some of which are a deprivation of liberty. Comparing them is of no value in assessing whether one particular set of circumstances falls within the Article 5 definition.
P and Q’s Living Conditions
Both sisters were found not to have been deprived of liberty. Q’s case was however closer to meeting the test than P’s. P lived in a foster home, with a foster mother to whom she was devoted, she attended off-site education, was taken out for trips and holidays and had her own bedroom. Q lived with 3 other residents in a specialist care home for adolescents, with her own bedroom. She had been physically restrained on occasion, after outbursts directed at other residents. She also attended further education off-site and was on medication to control her anxiety.
The appeal was dismissed: neither sister was deprived of her liberty within the meaning of Article 5. The court made clear that if the sisters had succeeded, the effect would have been a significant new duty placed on public authorities to regularly (at least annually) review people detained in similar circumstances. The court also stressed that this potential effect had no bearing on the decision. The case may well be appealed, however, and since it aptly demonstrates the fine line which exists between freedom and detention, it is conceivable that another court may decide differently.
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