Cheshire West and the Repugnant Conclusion
The Supreme Court’s judgment(s) in Cheshire West  UKSC 19 stirred up the expected storm. By siding with the approach urged upon it by the Official Solicitor, the Court has inevitably increased the numbers who will fall within the category of persons “deprived of their liberty”.
Not only will this increase the numbers of people like P, MIG and MEG – those in independent supported living arrangements where the Court of Protection will need to authorise their detention – it will also increase the numbers in care homes and hospitals falling within the administrative detention procedure known as the DOLS. No one yet knows how great the numbers will be. It is also unclear how the legal procedures will be streamlined to reduce cost and delay. There is undoubtedly a lot of work to be done.
In the week since the judgment there has been a great deal of discussion, debate and hurried training. The Government is expected to issue its response shortly. Whether what has resulted is panic, hysteria or plain fear, or perhaps only the sort of adjustment that always follows a significant legal development – whether it is a Supreme Court judgment, or a ground–breaking statute – remains to be seen.
As someone who watched this litigation develop at close quarters, it has taken me some days to reach a position on what has happened. The problem with this case (or these cases) is that they created a clash of instinctive reactions. Where a person is disabled, vulnerable and in need of support and supervision as P, it would be bizarre, would it not, to attach the label “deprived of liberty”? Borrowing the language of Mostyn, J in another similar case, the framers of the European Convention, designing a “bulwark against tyranny,” would never in their wildest dreams have anticipated Article 5 being used in the sorts of cases that came before the Supreme Court.
On the other hand, were a person with capacity to be kept under constant supervision and control, in a place which he could not leave without permission, the instinctive reaction would be equally indignant – that he is deprived of his liberty, and this is exactly what Article 5 is for.
In the final analysis, the case is about discrimination, about equality. As Munby, L.J. rightly observed in the Court of Appeal, the case is about whom one chooses to use as a comparator for the mentally incapable person. If one chooses as a comparator person of “sound mind” who finds himself subject to supervision, control and unable leave, we will rightly conclude there is a deprivation of his liberty. The only way to escape that conclusion is to modify the comparator to a person with similar disabilities and needs as the person concerned. That removes the counterintuitive conclusion that very disabled people are deprived of their liberty. But it is replaced with an uneasy feeling that by modifying the comparator something has been lost. The Convention does not protect the most vulnerable people any more. Worst of all, different levels of rights have been created for – dare I say – different levels of people. And that can’t be right.
It was that repugnant conclusion that seems to have led the Supreme Court to the profound judgment it reached.