Supreme Court to rule in landmark deprivations of liberty cases

The Supreme Court will next week hand down an eagerly-awaited judgment in two cases concerning deprivations of liberty and the Mental Capacity Act 2005.

The importance of the cases was highlighted by the fact that the panel hearing them in October 2013 comprised seven justices (Lord Neuberger, Lady Hale, Lord Kerr, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge), rather than the usual five.

In P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another P was a 39-year-old man with severe physical and learning disabilities.

He lacked the mental capacity to make decisions as to his care and residence. In November 2009, he was placed in Z House pursuant to a court order.

There was no dispute between the parties that his care package at Z House was in his best interests. The only dispute was whether that package imposed such restrictions upon P that he was deprived of his liberty, thereby engaging the protective procedural rights under Article 5 of the European Convention on Human Rights.

Z House was a large and spacious single-level bungalow. P had his own rooms and access to two bathrooms. He continued to attend a day centre four days a week, and a hydrotherapy pool on the fifth weekday, leaving Z House at 9.30 am and returning at 5.00 pm. He was supported by staff to access community and leisure facilities, for example trips to town and to visit his mother.

P had a history of shredding his continence pads and putting them in his mouth. Various techniques had been used to tackle the problem. Non-physical methods were attempted, including dressing P in a onesie with access via a zip at the back. However staff members sometimes had to resort to physical intervention, including inserting a finger into his mouth to remove such material.

Mr Justice Baker ruled in the High Court in June 2011 that the care plan for P had involved a deprivation of liberty. However, the council successfully overturned the ruling in the Court of Appeal.

The case of P and Q (by their litigation friend, the Official Solicitor) v Surrey County Council meanwhile was about how the court should determine whether there was a deprivation of liberty for the purposes of the Mental Capacity Act 2005.

P and Q were sisters who were, at the time of the first instance judgment, 18 and 17 years old respectively. Both P and Q were severely mentally impaired. Until 2007, they lived with their mother. Their lives were dysfunctional and abusive.

By the time of the first instance hearing, P was living with a foster carer and Q was living in a specialist NHS children's home. P and Q's contact with their mother was restricted by Court, and they were not permitted to live with her.

P had her own bedroom at her foster carer's home. Her bedroom door was never locked. She had never attempted to leave. Were she to attempt to leave, the foster mother would restrain her for her immediate safety. She was not in receipt of medication. She attended college, and was taken on outings.

Q meanwhile had her own bedroom at the secure children's home. She occasionally suffered outbursts and sometimes required physical restraint. She was treated with medication, Risperidone, for the purpose of controlling her anxiety. She attended college, and was taken on outings.

The Court of Appeal ruled in March 2011 that the arrangements for the sisters did not amount to deprivations of liberty.

See also: The Cheshire case – a beginner’s guide by Lucy Series.