“A gilded cage is still a cage” – Supreme Court on deprivation of liberty for the mentally incapacitated

8 April 2014 by Rosalind English

Surrey County Council v P and Others, Equality and Human Rights Commission and others intervening [2014] UKSC 19  (March 19, 2014) – read judgment

Elizabeth-Anne Gumbel QC, Henry Witcomb and Duncan Fairgrieve of 1 Crown Office Row represented the AIRE Centre, one of the intervening parties, in this case. None of them have anything to do with the writing of this post.

Mentally incapacitated people have the same rights to liberty as everyone else. If their own living arrangements would amount to a deprivation of liberty of a non-disabled individual then these would also be a deprivation of liberty for the disabled person. So says the Supreme Court, which has ruled that disabled people are entitled to periodic independent checks to ensure that the deprivation of liberty remains justified.

The majority ruling goes further than any existing Strasbourg case law. As Lady Hale points out,  Strasbourg has not yet ruled on a case which combines the following features:
(a) a person who lacks the mental capacity to decide upon their own placement but who has not expressed any dissatisfaction with or objection to it;
(b) a placement, not in a hospital or social care home, but in a small group or domestic setting which is as close as possible to “normal” home life; and
(c) that placement having been authorised by a court as being in the best interests of the person concerned.

Background

This was an appeal by two mentally incapacitated sisters MIG and MEG, and a mentally incapacitated man, P, appearing by their litigation friend, the Official Solicitor, against the finding of the Court of Appeal  that their living arrangements did not constitute a deprivation of liberty. Neither P,  MIG or MEG were able to care for themselves or give effective consent. P and been born with cerebral palsy and Down’s syndrome and required 24 hour care to meet his personal care needs.

All appellants were cared for in non-institutional accommodation arranged by the local councils, although because of P’s behavioural difficulties, he was in supervised local authority accommodation and was subject to occasional restraint inside his accommodation. But he did not live in a care home; he inhabited a spacious bungalow, described by an independent social worker as “cosy and with a pleasant atmosphere”, and close to P’s family home. In addition, P received 98 hours additional one to one support each week, to help him to leave the house whenever he chose. He went to a day centre four days a week and a hydrotherapy pool on the fifth. He also went out to a club, the pub and the shops, and saw his mother regularly at the house, the day centre and her home. He could walk short distances but needed a wheel chair to go further. The Court of Protection concluded that although P was being deprived of his liberty, it was in his best interests. The Court of Appeal found that he was not being deprived of his liberty.

None of the appellants had expressed any dissatisfaction with the accommodation or shown any wish to leave, although had they attempted to do so they would have been restrained for their own safety. In neither placement of the sisters was there, in the Court of Protection’s view, any ‘confinement in a restricted space for a not negligible length of time’. One of them was living in a foster home and  the other in a residential home. Both go to college during the day. In the evenings they return to their respective homes. The Court of Appeal upheld the CoP’s decision that the sisters’ living arrangements were in their best interests and did not amount to deprivation of their liberty, referring to the “relative normality” of their lives compared with the lives they might have had if still living with their family.

Their appeals, that they were in fact being deprived of their liberty, were upheld by a majority of the Supreme Court, Lords Clarke, Carnwath and Hodge dissenting.

Reasoning behind the judgment

It was axiomatic that people with disabilities, both mental and physical, had the same human rights as the rest of the human race. It might be that those rights had sometimes to be limited or restricted because of their disabilities, but the starting point had to be the same as that for everyone else. That proposition flowed “inexorably” from the “universal character” of human rights, founded upon the “inherent dignity of human beings” (see my post on this concept). Far from disability entitling the state to deny such people such human rights it placed upon the state and others the duty to make reasonable accommodation to cater for the special needs of those with disabilities.

These rights included the right not to be deprived of physical liberty, which was guaranteed by Article 5 of the Human Rights Convention. Lady Hale observed that if it would be a deprivation of her own liberty to be obliged to live in  certain place, subject to constant monitoring, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it had also to be a deprivation of the liberty of a disabled person. The fact that those living arrangements had been rendered as comfortable as it could possibly be, should make no difference.

The test was whether the person concerned  “was under continuous supervision and control and was not free to leave”, HL v United Kingdom (45508/99) (2005) 40 E.H.R.R. 32. The person’s compliance or lack of objection was not relevant, nor was the relative normality of the placement or the reason or purpose behind a particular placement. On that test, all three appellants’ living arrangements constituted a deprivation of liberty and so had to be subject to periodic independent checks to whether the arrangements made for them were in their best interests. The need for such checks did not in any way stigmatise such persons or their carers. Rather they were a recognition of their equal dignity and status as human beings like everyone else.

The Court ordered that the CoP decision in P’s case would be restored and made a declaration  that X and Y’s living arrangements constituted a deprivation of liberty within the meaning of s.64(5) of the 2005 Mental Capacity Act.

The dissents

Lords Carnwarth and Hodge accepted that the comparator should in principle be a person with unimpaired health and capacity for the reasons which the judgment advanced. They also saw “real value” in the clarity of a focused test as it would greatly assist the psychiatrists and other professionals who have to administer the Mental Capacity Act 2005. On the other hand, there was no warrant in Strasbourg law, which was important for the determination of the 2005 Act, for the extension for which the majority settled. Short of a clear indication from Strasbourg, UK judges 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.

All the cases cited in the Supreme Court’s review of Strasbourg jurisprudence related to people living in institutions of some kind, not in ordinary homes. Conversely, their Lordships had been referred to no Strasbourg case in which detention has been found in comparable circumstances to the present.

We are concerned that nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty. We recognise that the concept in the Convention may be given an autonomous meaning by the Strasbourg court. But we are struck by how the judges in the courts below, with far more experience than we ourselves can claim, have laboured to keep the concept of deprivation of liberty in touch with the ordinary meaning of those words. [para 99]

Whether in each case P and the two sisters had been deprived of their liberty was a question of fact and degree, essentially a jury question and thus a question for the trial judge. Given that it involved a balancing of many different considerations, the decision of the judge should not be interfered with by an appellate court unless it concluded that the judge has erred in principle or that the judge was wrong:

An appellate court should not simply substitute its own view for that of the judge. In these cases the judges of first instance, Parker J in P and Q [the sisters] and Baker J in P, were very experienced in this field so that their opinions deserve great respect. [Lord Clarke, para 106]

It is one thing to take a principled stand on the content of the right to liberty, but the majority judgment may well have the unfortunate consequence of burdening private and informal arrangements for care outside institutions with further bureaucratisation.

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