The Supreme Court has this morning
overturned the Court of Appeal in the cases of P (by the Official Solicitor) v Cheshire West and Chester Council,
and P & Q (or MIG & MEG)(by the
official Solicitor) v Surrey County Council [2014] UKSC 19. In what is the
most far-reaching human rights case heard in the UK for a decade, the Supreme Court
reversed the Cheshire West decision
by 7 Justices to 0, and Surrey
decision by 4 to 3.
The cases rested on what is the proper test
to be applied to determine where there is a deprivation of liberty when
mentally incapacitated people are required to live in a place when they could
not (and therefore did not) consent? These places could be hospitals or care
homes, but in the three appeals before the Supreme Court they were an independent
supported living placement, a unit for learning disabled young people and a
foster home. If they are deprived of their liberty, Article 5 of the European
Convention is engaged and protections including periodic reviews of their
detention are triggered. Their detention must be authorised and reviewed by the
Court of Protection. Where the statutory scheme applies, in hospitals and care
homes, detained residents fall within the so-called DOLS (deprivation of
liberty safeguards), which is an administrative procedure whereby people may be
detained without the authority of a Court (albeit with the right of appeal to
one).
The Court had to decide whether the “test”
to be applied should include factors such as “the relative normality” of the surroundings in which the person is
placed (the more “normal” the less it was likely to involve deprivation of
liberty); whether the person (or their relatives or carers) objects to the
placement (if they do not it is less likely to involve deprivation of liberty);
whether a person with comparable disabilities would be expected to live in a
less restricted environment (if so, it is more likely to be a deprivation);
whether the reason or purpose for the placement is a relevant factor (if the
measure is an appropriate way of achieving the best for the person, the less it
is likely to amount to a deprivation)? These were factors that the Court of
Appeal had suggested were relevant.
The majority of the Supreme Court rejected
these factors as part of the test. Lady Hale (with whom Lords Neuberger, Kerr
and Sumption agreed) emphasised the universality of human rights:
In my
view, it is axiomatic that people with disabilities, both mental and physical, have
the same human rights as the rest of the human race. It may be that those
rights have sometimes to be limited or restricted because of their
disabilities, but the starting point should be the same as that for everyone
else. This flows inexorable from the universal character of human rights,
founded on the inherent dignity of all human beings, and is confirmed in the
United Nations Convention on the Rights of Persons with Disabilities. Far from
disability entitling the state to deny such people human rights, rather it
places upon the state (and upon others) the duty to make reasonable
accommodation to cater for the special needs of those with disabilities.
Those
rights include the right to physical liberty, which is guaranteed by article 5
of the European Convention. This is not a right to do or to go where one
pleases. It is a more focused right, not to be deprived of that physical liberty.
But, as it seems to me, what it means to be deprived of liberty must be the
same for everyone, whether or not they have physical or mental disabilities. If
it would be a deprivation of my liberty to be obliged to live in a particular
place, subject to constant monitoring and control, only allowed out with close
supervision, and unable to move away without permission even if such an
opportunity became available, then it must also be a deprivation of the liberty
of a disabled person. The fact that 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”.
Consequently, the “relative normality” of the placement, and the reason for the person
being placed there were not relevant factors in determining
whether the person was deprived of their liberty. The comparator survived, but
not in the form envisaged by the Court of Appeal. The comparator was not
another person with similar disabilities, but an ordinary person without mental
incapacity. Furthermore, the person’s compliance or lack of objection was also
not relevant.
Lady Hale then went on to ask whether there
is an acid test for deprivation of liberty in these cases? She
reviewed the Strasbourg case law and agreed that the classic test Guzzardi v Italy (1980) 3 EHRR 333 is
repeated in all the ECtHR cases: i.e. the starting point is the “concrete situation of the individual”,
and then one must always “take account of
a whole range of criteria such as the type, duration, effects and manner of
implementation of the measures in question”. Lady Hale was sure that these would
confidently be repeated once again if these cases were to go to Strasbourg.
Then she goes on (at para [48]) (my
emphasis)
“But these cases are not about the
distinction between a restriction on freedom of movement and the deprivation of
liberty. P, MIG and MEG are, for perfectly understandable reasons, not free to go anywhere without
permission and close supervision. So what are the particular features of
their ‘concrete situation’ on which we need to focus”
At [49] she identifies the key factor as
being whether the person is under continuous supervision and control
and not free to leave.
That is the test.
What is meant by “free to leave”? Lady Hale
refers to Munby, J. in JE v DE [2007]
2 FLR 1150 where he had defined “freed to leave” as “not just for the purpose of some trip or outing approved by [the local
authority] or those managing the institution: I mean leaving in the sense of
removing himself permanently in order to live where and with whom he chooses..”
The fact that a placement may have
“relatively open conditions” was no more determinative of deprivation of
liberty than (for example) open hospital conditions (in e.g. Ashingdane v UK (1985) 7 EHRR 528).
There were 5 judgments in the case. Lord Neuberger
and Lord Kerr agreeing with Lady Hale (as did Lord Sumption, although without
writing his own judgment). Lord Carnwath and Hodge jointly disagreed with Lady
Hale that the test should go as far as she did. They considered that the
Strasbourg cases fell short of a universal test of the sort Lady Hale put
forward, and that there was insufficient certainty that Strasbourg would have
gone as far as she did. They preferred a balancing of the numerous factors
outlined in the cases (intensity or restriction, manner of implementation etc).
Lord Clarke agreed with Lords Carnwath and Hodge.
Conclusions:
·
This case should be seen as an
affirmation of the principles of the Mental
Capacity Act.
·
It recognises those who lack
capacity as being equal with those who do not. If the concepts of relative
normality, Munby L.J.’s comparator, and the significance of an absence of
objection had been determining factors in whether Article 5 applied the result
would have been to remove those protections from those who need them the most.
·
The test fits in with the ethos
of the United Nations Convention on the Rights of Persons with Disabilities.
·
During the hearing the Justices
had been concerned that if the test put forward by the Official Solicitor were
to be accepted it would lead to large numbers of people coming within the
protection of Article 5 (including those who would fall under the DOLS), and
this would create bureaucratic difficulties as well as considerable cost. This
remains to be seen. But in the week that the House of Lords Select Committee
was so scathing of the inadequacy of the protections afforded by the DOLS, it
may be that this judgment will ensure that those who have not fallen under the
protection of the regime will now do so. It is suggested that this will be a
good thing.
·
Another concern was that if the
test for deprivation of liberty was as sought by the Official Solicitor, it
would mean that a number of people would, in fact, be detained who could not
lawfully be so. These include patients subject to guardianship, community
treatment orders or conditional discharges under the Mental Health Act. These
orders do not without more authorise deprivation of liberty (although they are
often used as if they do). In the case of guardianship, the patient is
certainly not free to leave in the sense of living where he chooses- that is
the prerogative of the guardian. However, he may not be deprived of his liberty
if there is an absence of continuous supervision and control. For instance,
many guardianship patients are free to spend their days doing what they like,
where they like- but have to reside at a particular address. They are not free
to leave so that they can live somewhere else, but they are not subject to continuous
supervision. It remains to be seen
whether the Supreme Court’s test creates a conflict between the two regimes.
·
Finally, the test will
hopefully bring clarity to an area that had become almost impossibly difficult
to predict. Lets hope the BIAS, clinicians, social workers, IMCAs, legal
advisers and Judges, as well as the people concerned and their families will
find it easier to identify a “DOL” after Cheshire
West!
Simon Burrows
was instructed by O’Donnells, Preston on behalf of the Official Solicitor for P
in the Cheshire West case from first instance to the Supreme Court. He was led
by Richard Gordon, Q.C. in the Court of Appeal and the Supreme Court, and was co-junior with Amy Street in the Supreme Court.
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