Care for sisters with learning disabilities not a deprivation of liberty, says CoA

March 1, 2011

Arrangements put in place for two sisters with substantial and permanent learning disabilities did not amount to deprivations of their liberty, the Court of Appeal has ruled.

In P & Q v Surrey County Council [2011] EWCA Civ 190, P was born on 27 April 1991 and Q was born on 11 April 1992. Through the Official Solicitor, acting as their litigation friend, the sisters appealed a declaration made by Mrs Justice Parker in the Court of Protection that arrangements overseen by Surrey County Council were not a deprivation of liberty.

Giving the lead judgement in the Court of Appeal, Lord Justice Wilson said the issue whether the arrangements for P and Q amounted to a deprivation of their liberty was an issue as to whether the arrangements engaged Article 5 of the European Convention on Human Rights.

This right to liberty and security of person provides – under Article 5(4) – that everyone who is deprived of their liberty by detention “shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful”.

Lord Justice Wilson said that if it was concluded that the arrangements did amount to a deprivation of liberty, P and Q would have had the right “to take court proceedings for a decision in relation to the lawfulness of their detention and so it would extend beyond their right, which pursuant to statutory guidance Surrey recognises in any event, to a review, at least annually, on Surrey’s part into the continued aptness of the assessment under which their needs are met, including participation in the review by independent advocates on behalf of P and Q”.

The judge added: “The paragraph – 5(4) – would impose a duty on the court itself periodically, again probably at least annually, to review the continued necessity for the arrangements which deprive them of their liberty, albeit perhaps only on paper unless requested otherwise. The court’s review would probably again require independent representation of them.”

P had a mental age of two-and-a-half and her learning disability was either at the lower end of the moderate range or at the upper end of the severe range. As well as problems with her sight and hearing, the judge said, she communicated with difficulty and had limited understanding. “She lives largely in her own world and spends much of her time listening to music on her iPod,” he added.

Q meanwhile had an overall mental age of four to five and her learning disability was at the high end of the moderate range and bordered on the mild range. Her communication skills were better than P’s – “indeed her language skills are at a higher level than that indicated by the overall assessment”, the judge said, adding that her emotional understanding was quite sophisticated.

“Like P, she has problems with her sight,” Lord Justice Wilson said. “But, unlike P, she is troubled in her mind, exhibits challenging behaviour and may have autistic traits. It is possible that, if she can learn to manage her emotions, Q can somewhat raise the general level of her functioning.”

The impairment in functioning of both sisters meant they were unable to make decisions for themselves in relation to anything other than the most trivial, day-to-day aspects of their lives. They therefore lacked capacity for the purposes of s. 2 of the Mental Capacity Act 2005, the judge said.

Both P and Q had lived with their mother until April 2007 (the father having played no part in their lives). A half-sister was born in 1988 and a sister in 1993. In 1997 a man who became their stepfather moved into the home.

However, the sisters' life in the family home was described as dysfunctional and abusive. “Each of them was subjected to excessive physical chastisement, neglect and deprivation,” the judge said. They were finally removed from the home in April 2007.

On their removal from the family home, P moved into a foster home where she was living at the time of Mrs Justice Parker’s enquiry. Q first moved into the home of her former respite carer, but the latter felt she could not manage Q’s aggressive outbursts. Q was then moved into a small residential home.

The Court of Appeal looked at the arrangements in place at the time Mrs Justice Parker heard the case. (Since then, the arrangements have been changed by Surrey for both sisters. “The recent changes will make our judgments less helpful to the parties than otherwise, but, on a wider basis, they may nevertheless have some value,” Lord Justice Wilson said.)

P’s arrangements were:

she was living in an excellent foster home in Surrey
she was devoted to her foster mother
she had her own bedroom
she refused to keep her bedroom door open
the door was never locked
she had never attempted to leave the home on her own and had showed no wish to do so
were she to attempt to leave, the foster mother would restrain her
the foster mother provided intensive support to her in respect of most aspects of daily life
she attended a unit of further education each term-time day and was transported to and fro
the foster mother took her out on trips and holidays
she needed help in crossing the road because she was unaware of danger, and
she was not in receipt of medication.

Q’s arrangements were:

she was living in a specialist home for adolescents in Surrey in which she was one of four residents
it was not a care home within the meaning of s.3 of the Care Standards Act 2000
she had her own bedroom
she occasionally suffered outbursts directed at other residents and she sometimes then required physical restraint
largely as a result of the use of behavioural management techniques, her behaviour was becoming significantly more stable
her care needs were met only as a result of continuous supervision and control
she was not locked into the home, which was not a secure unit
she showed no wish to go out on her own and so did not need to be prevented from doing so
whenever she left the home, she was attended
she was taken to and from the same unit of further education as was attended by P
she could communicate her wishes in a limited manner
she had a fuller social life than did P, and
she was in receipt of medication, Risperidone, for the purpose of controlling her anxiety.

Lord Justice Wilson said the European Court of Human Rights had made clear – in Storck v Germany [2005] 43 EHRR 96 – that a deprivation of liberty had three elements:

the objective element of a person’s confinement to a certain limited place for a not negligible length of time
the additional subjective element that they have not validly consented to the confinement in question, and
the confinement must be “imputable to the state”.

The judge said that the second and third elements both existed in the sisters’ cases. What was key was whether the first, objective element was met by P and Q’s different circumstances.

Lord Justice Wilson said that Mrs Justice Parker had delivered a “magisterial” analysis but had nevertheless been wrong to suggest that a person’s happiness was relevant to whether they were deprived of their liberty. “Its relevance is as to whether any such deprivation is in her best interests….Such is a necessary condition of its being ‘lawful’ and thus of its not infringing Article 5.”

Lord Justice Wilson said that the overlapping view which was relevant was whether the person objected to the confinement which is imposed on them.

“If a person objects to the confinement, the consequence will be conflict,” the judge argued. “At the very least there will be arguments and she will suffer the stress of having her objections overruled. More probably, as in the case of Miss Storck, there will be tussles and physical restraints and even perhaps her forcible return at the hands of the police.

“This level of conflict inherent in overruled objections seems to me to be highly relevant to the objective element. Equally, however, the absence of objections generates an absence of conflict and thus a peaceful life, which seems to me to be capable of substantial relevance in the opposite direction.”

Lord Justice Wilson also said the administration of medication – “at any rate of antipsychotic drugs and other tranquillisers” – was always a pointer towards the existence of the objective element as it suppresses the individual’s liberty to express themselves as they would otherwise wish. .

“Indeed, if the administration of it is attended by force, its relevance is increased,” he added. “Furthermore, in that objections may be highly relevant, medication which has the effect of suppressing them may be relevant to an equally high degree. But again, conversely, the absence of medication is a pointer in the other direction.

Lord Justice Wilson said Mrs Justice Parker had been wrong to attach significance to the fact that the purpose of the arrangements for the girls was to further their best interests.

However, he added that – as the judge in the Court of Protection had implied – the relative normality of the living arrangements under scrutiny was relevant. “If the person is living with her parents or other members of his natural family in their home, she is living – in that respect – the most normal life possible,” Lord Justice Wilson suggested. “Typically – but sadly not always – there will be no deprivation of liberty in such circumstances. Not much less normal for this purpose is the life of a child in the home of foster parents or of an adult, such as Mr HL, in the home of carers…..But, even when the person lives in an institution rather than in a family home, there is a wide spectrum between the small children's home or nursing home, on the one hand, and a hospital designed for compulsory detentions like Bournewood; and it is in my view necessary to place each case along it.”

The Court of Appeal judge said that the enquiry into normality transcended an enquiry into the residential arrangements. “Of potentially great relevance in the case of children or young adults is whether, as would be normal almost irrespective of the degree of any disability, they go out to some sort of school or college; and, in the case of other adults, whether they go out to college or to a day centre or indeed in order to pursue some form of occupation.” Restrictions placed on outside social contact would also be relevant.

Lord Justice Wilson said factors relevant to both P and Q were that:

they were not free to leave their respective accommodation
they did not object to the arrangements for them and did not seek to leave – and therefore did not have to be restrained from leaving – their accommodation
their daily care needs were met by virtue of supervision and control
they had their own bedrooms
they were not under close confinement within their accommodation
they were taken out each day to the unit of further education
they were taken on other outings
they had good outside contact with family members under elaborate arrangements made by Surrey; “although their contact with the mother was not as frequent as she had wished, they had reasonable contact with her and, apparently more importantly for them, reasonable contact with each other, with the half-sister and with the sister”, and
the elements of confinement, supervision and control in their lives were likely to be permanent.

Additional factors relevant to the case of P were that:

she was living in a family home
her social life was very limited, and
she was not in receipt of medication.

Additional factors relevant to the case of Q were that:

she was not living in a family home
she was living in a home in which she was one of only four residents
her outbursts, though becoming less frequent, sometimes precipitated the need for physical restraint
she was in receipt of medication, albeit not forcibly administered, for control of her anxiety; but, “as Mrs Justice Parker expressly found, she would have required such medication whatever her circumstances and neither its purpose nor its effect was to restrain her from trying to leave the home or from pursuing any other activity”, and
her social life was fuller than that of P.

Dismissing both appeals, Lord Justice Wilson said that Mrs Justice Parker was “clearly correct” to conclude that P was not being deprived of her liberty. However, the case of Q was “closer to the border of deprivation” by virtue of factors such as she was not living at home, her outbursts – though becoming less frequent – sometimes precipitated the need for physical restraint, and she was in receipt of medication (albeit not forcibly administered) for control of her anxiety.

Following what he called “protracted thought”, Lord Justice Wilson upheld Mrs Justice Parker’s view that there was no deprivation of liberty in Q’s case either. “The small size of the home for adolescents in which she lived; her lack of objection to life there; her attendance at the educational unit; her good contact with such members of her family as were significant for her; and her other, fairly active, social life: such were the main factors which kept her outside Article 5,” he said.

Philip Hoult