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'A gilded cage is still a cage'

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Those were the words of Lady Hale at The Supreme Court which today heard an important set of cases (P (by his litigation friend the Official Solicitor ) v Cheshire West and Chester Council and P and Q (by their litigation friend the Official Solicitor) v Surrey County Council [2014] UKSC 19) regarding deprivation of liberty in relation to social care and Article 5 of the Human Rights Act 1998.

The case concerned two separate cases heard together.

The first case concerned two sisters, known as P and Q (aged 17 and 18 at the time of the final hearing) who both had differing levels of learning disability with one also exhibiting autistic traits and challenging behaviour. Both received full time care while living with a foster carer and in sheltered accommodation respectively. They could not leave their accommodation; they had also made no attempts to do so.

In the second case is an adult known as P with cerebral palsy and Down’s syndrome who required 24 hour care and was in local authority accommodation. He was able to leave the house when he wanted with the assistance of carers.

All three appellants had been deemed to lack capacity to make decisions regarding their care needs under the Mental Capacity Act 2005 (MCA 2005).

In both cases the main question was whether their living arrangements amounted to a deprivation of their liberty under the MCA 2005. This was important as those who are deprived of their liberty are entitled to safeguards and checks under the MCA to ensure that such deprivation continues to be in their best interests.

The local authorities had argued that those in question were not being deprived of their liberty as they were able to lead relatively normal lives.

The court today held that in all three cases that those involved were being deprived of their liberty. This was a reversal of the decision previously made by the Court of Appeal.

Lady Hale, who delivered the lead judgment, identified two elements of an ‘acid test’ for whether someone was being deprived of their liberty;

  1. That they were not free to leave.
  2. That they were under continuous supervision and control.

In addition she discussed three criteria which are categorically not relevant to whether someone is being deprived of their liberty. These were:

  1. Whether the person is objecting to their living arrangements.
  2. The relative normality of the placement.
  3. The reason and purpose behind the placement.

Lord Neuberger stated that whether or not someone is objecting to their living arrangements cannot be used as criteria as this would mean that that those who lacked capacity to object could never be deprived of liberty no matter how restrictive their conditions.

Another important change is that the relative normality of a person’s living arrangements is not enough to demonstrate that someone is not being deprived of their liberty. This is because, as those who work in this area or have relatives requiring care will know, that the idea of ‘normal’ for a disabled person can be fluctuating and can be massively influenced by the provision of the right care package.

The judgment has been welcomed by both the National Autistic Society (NAS) and MIND who intervened in the case to provide evidence in relation to the care being provided to those with disabilities.

This judgment came just a week after the House of Lords Select Committee report which held that the MCA is failing to be properly implemented and that the DOLS procedures should be replaced with processes and procedures which should be easier to understand and implement.

By Emma McClure, civil liberties team

If you are concerned that you or a family member are affected by any of the above, our community care and Court of Protection teams can provide assistance. Call us on 01616 966 229.