When assessing whether a patient’s care deprives him or her of their liberty, and thereby entitles them to the procedural protections under Article 5 (4) ECHR, the right to liberty, the Court of Appeal has ruled that the appropriate comparator is an individual with the same disabilities and difficulties who is not in care. The court also provided useful general guidance for deprivation of liberty cases.
P is a 39 year old man with Cerebral Palsy and Down’s Syndrome who lacks the capacity to make decisions about his care and residence arrangements as a result of his physical and learning disabilities.
Since November 2009 he has lived at Z house, a residential care facility where, as well as providing for P’s day to day care, staff have to manage his more challenging behaviour. Most worrying is his habit of tearing at his continence pads and placing them and their contents in his mouth. The staff at times have had to restrain P and use a gloved hand to sweep his mouth. It was this, and his general residential care that gave rise to the question of whether P was deprived of his liberty.
The appeal was brought by the local authority responsible for P’s care from an order for the Court of Protection by Barker J on 4 April 2009, which declared P’s care plan at Z house involved a deprivation of liberty for the purposes of Article 5.
The restrictions on P fall into two categories:
- those relating to his general living conditions; having to be accompanied by a member of staff in order to leave Z house for example and
- those designed to address the five behaviours identified in his care plan, produced by the local authority; these include: accessing/destroying continence pads, grabbing or smearing the contents (faeces) and placing it in his mouth or ingesting it, picking at his skin causing wounds, aggression towards others and banging/slapping his head.
No deprivation of liberty
The appeal was allowed, P’s care plan at Z house does not involve a deprivation of liberty
Lord Justice Munby, giving the leading judgement, reviews some of the key case law on Deprivation of Liberty and provides a useful summary of the underlying principles at para 102:
i) The starting point is the “concrete situation”, taking account of a whole range of criteria such as the “type, duration, effects and manner of implementation” of the measure in question. The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, not nature or substance.
ii) Deprivation of liberty must be distinguished from restraint. Restraint by itself is not deprivation of liberty.
iii) Account must be taken of the individual’s whole situation.
iv) The context is crucial.
v) Mere lack of capacity to consent to living arrangements cannot in itself create a deprivation of liberty
vi) In determining whether or not there is a deprivation of liberty, it is legitimate to have regard both to the objective “reason” why someone is placed and treated as they are and also to the objective “purpose” (or “aim”) of the placement.
vii) Subjective motives or intentions, on the other hand, have only limited relevance. An improper motive or intention may have the effect that what would otherwise not be a deprivation of liberty is in fact, and for that very reason, a deprivation. But a good motive or intention cannot render innocuous what would otherwise be a deprivation of liberty. Good intentions are essentially neutral. At most they merely negative the existence of any improper purpose or of any malign, base or improper motive that might, if present, turn what would otherwise be innocuous into a deprivation of liberty. Thus the test is essentially an objective one.
viii) In determining whether or not there is a deprivation of liberty, it is always relevant to evaluate and assess the ‘relative normality’ (or otherwise) of the concrete situation.
ix) But the assessment must take account of the particular capabilities of the person concerned. What may be a deprivation of liberty for one person may not be for another.
x) In most contexts (as, for example, in the control order cases) the relevant comparator is the ordinary adult going about the kind of life which the able-bodied man or woman on the Clapham omnibus would normally expect to lead.
xi) But not in the kind of cases that come before the Family Division or the Court of Protection. A child is not an adult. Some adults are inherently restricted by their circumstances. The Court of Protection is dealing with adults with disabilities, often, as in the present case, adults with significant physical and learning disabilities, whose lives are dictated by their own cognitive and other limitations.
xii) In such cases the contrast is not with the previous life led by X (nor with some future life that X might lead), nor with the life of the able-bodied man or woman on the Clapham omnibus. The contrast is with the kind of lives that people like X would normally expect to lead. The comparator is an adult of similar age with the same capabilities as X, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations as X. Likewise, in the case of a child the comparator is a child of the same age and development as X.
Lord Justice Munby identified two factors that, in his view, wrongly swayed Mr Justice Baker’s decision. (1) that P’s life is “completely under the control of members of staff at Z house” and (2) the physical restraint and intrusive “finger swiping” procedure required to prevent P from ingesting his continence pads.
In his view these features of P’s life were a positive feature rather than a negative one. P’s being accompanied when leaving Z house was an enabling factor whereas he would otherwise have been housebound as a result of his disability. Similarly with regard to P’s restraint and the finger swiping procedure, it is these procedures that protect P from the consequences of his disability and allow him to live as normal a life as possible in the circumstances.
Specifically, Lord Justice Munby points out that Mr Justice Baker “never compared P’s situation in Z house with the kind of life P would have been leading as someone with his disabilities and difficulties in what for such a person would be a normal family setting.” In fact it would seem that P’s life is inherently restricted as a result of his disability and “P, when living at Z house, [is] living a life that is as normal as it can be for someone in his situation”
This decision will be welcomed by care providers and would seem to be a victory for common sense. Munby LJ has looked beyond the black and white of the care plan to the context and reality of P’s care.
While it is true to say that P’s life is heavily restricted, it is restricted as a result of his disability. In so far as is possible, P’s care at Z house facilitates his liberty, rather than restricting it, and the Court of Appeal has recognised that.
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