P v Cheshire West and Chester Council: Shaping Deprivations of Liberty
The case of P v Cheshire West and Chester Council considered whether living arrangements for mentally incapacitated people necessarily constitute a deprivation of their liberty. Its significance lies in the fact that, where such a deprivation is found, deprivation of liberty safeguards (“DOLS”) must be put in place.
DOLS are intended to ensure that individuals are protected and that State actions conform with Article 5(4) of the European Convention on Human Rights. (See also comment from Simon Burrows, counsel for P in the case).
The three individuals who were the subjects in this case are mentally incapacitated by virtue of Down’s Syndrome, moderate/severe and moderate/mild learning disabilities. They live in NHS and local authority facilities and a foster home respectively. These environments come as close to “normal life” as might be possible under the circumstances, but none of the individuals reside in a “family home”. All three are closely controlled and supervised (involving the occasional use of restraints for two of them) for their own safety; none can leave at will, although MIG and MEG go to college every day. In all three cases, placements were initially authorised by the court: a subsidiary consideration was therefore whether such authorisation, once given, could continue indefinitely. No decision involving mental capacity emanating from the European Court of Human Rights has involved a directly analogous situation.
The Supreme Court decided, by a majority of four to three, that these living arrangements constitute a deprivation of liberty.
In the leading judgement, Baroness Hale rejected the Court of Appeal’s finding that there was no deprivation of liberty because of the “relative normality” of the environments or their essential benevolence: “a gilded cage is still a cage”. She determined the main features of a deprivation of liberty to be:
- The objective extent of the individual’s liberty. P, MIG and MEG are confined within their placements and as such restricted. This has been for many years and will be ongoing: the period of time is “not negligible”.
- The subjective extent of the individual’s liberty. Lacking mental capacity, none of the three individuals could themselves consent to their placement or the restrictions placed upon them.
- The “concrete situation”. This followed the ECHR jurisprudence (Stanev v Bulgaria). P, MIG and MEG cannot go anywhere without close supervision.
Baroness Hale’s analysis was underpinned by the assertion that human rights are universal in their very nature. From this perspective, physical liberty must be given the same for everybody regardless of their mental or physical disabilities. The positive nature of P, MIG and MEG’s placements did not override the fundamental principle that no-one should be subject to a deprivation of their liberty without safeguards.
In supporting judgments, both Lord Neuberger and Lord Kerr considered the implications of comparing these placements to “normal” home life. Children who live with their parents may be subject to an equivalent degree of control and supervision. However, in Lord Neuberger’s opinion this was not directly analogous because this situation does not involve the state assuming control. Lord Kerr considered that for most children, control and supervision diminishes as they grow older. For these individuals, the restrictions upon them would be a “constant feature” of their lives and as such amounted to deprivation of liberty.
Lords Carnwath, Hodge and Clarke dissented. Lords Carnwath and Hodge rejected Baroness Hale’s position that there should be a “universal test” of deprivation of liberty. The case law emanating from the ECtHR has emphasised that deprivation of liberty is “a matter of degree” and that individual decisions must focus upon the “concrete situation”. It follows that there cannot be a universal test.
Moreover, cases in which the ECtHR has determined that there is no deprivation of liberty (such as Neilsen v Denmark and HM v Switzerland) suggest that the comparison with a “normal home life” is an important consideration. P, MIG and MEG do leave their respective placements, for example to go to college during the day. This may restrict their liberty but it does not deprive them of it. Their lives are restricted through their “cognitive limitations” and not from arbitrary decisions by people in authority. Although two of the individuals are restrained, this does not create a deprivation of liberty because it is occasional and for therapeutic purposes only.