Landmark deprivations of liberty cases head to Supreme Court

The Supreme Court has given leave to appeal in two landmark cases involving the deprivations of liberty regime, Cheshire West & Chester Council v P & M and Surrey CC v P & Q.

In the Cheshire West case, Mr Justice Baker ruled in June 2011 that the care plan for P – a 39-year-old man born with cerebral palsy and Down’s Syndrome – had involved a deprivation of liberty.

A variety of techniques, including the use of an all-in-one body suit sewn up from the front, had been used to deal with P’s challenging behaviour.

The local authority successfully overturned this ruling at the Court of Appeal in November 2011. 

Lord Justice Munby said Mr Justice Baker had “never compared P’s situation in Z House (where he resided) with the kind of life P would have been leading as someone with his disabilities and difficulties in what for such a person would be a normal family setting”.

He added that the judge had “never grappled with the question whether the limitations and restrictions on P's life at Z House are anything more than the inevitable corollary of his various disabilities. The truth, surely, is that they are not. Because of his disabilities, P is inherently restricted in the kind of life he can lead.”

Lord Justice Munby added that there was a “strong degree of normality” in P’s life at Z House. “Normality, that is, assessed as it must be by reference to the relevant comparator.”

The issue of ‘relative normality’ was relevant following the Surrey CC v P & Q case.

The Court of Appeal refused leave to appeal. However, law firm O’Donnells, which has been instructed by the Official Solicitor in the Cheshire West case since 2009, confirmed earlier this month that it has now been granted permission.

In a statement on its website, the firm said: “The Court of Appeal judgment indicated that somebody like P should be compared to somebody else who has a similar disability and not with an ordinary person without a disability. Following this through to its natural conclusion it would therefore mean that far fewer people would be found to be deprived of their liberty and the Official Solicitor felt that this should be challenged.

“It is crucial to all those with considerable learning disabilities and challenging behaviour and those who care for them that these cases are heard by the Supreme Court.”

Philip Hoult