Local authority wins appeal in landmark ruling on deprivations of liberty

The Court of Appeal has upheld an appeal by a local authority in a landmark ruling this week on what constitutes a deprivation of liberty.

The case of Cheshire West and Chester Council v P [2011] EWCA Civ 1257 centred on a 39-year-old man (P) who was born with cerebral palsy and Down’s Syndrome. He presented with significant physical and learning disabilities.

It was accepted by all parties that P lacked the mental capacity to make decisions as to his care and residence. He lived with his mother until 2009 when her health began to deteriorate. P was placed at a local authority establishment and then moved in November 2009 to Z House, where he currently lives.

P had a long history of challenging behaviour, with continence management a particular problem.

Staff at Z House used a variety of techniques to deal with this. One involved the use of an all-in-one body suit sewn up at the front. The aim was to stop P tearing off parts of his continence pads and ingesting them, which posed hygiene and health risks. Staff used “finger sweeping” to remove any material ingested in this way.

The Official Solicitor, acting as P’s litigation friend, was concerned at the restrictive measures needed to deal with P’s more extreme behaviours and that these might amount to a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights (the right to liberty).

At the High Court Mr Justice Baker declared in April 2011, pursuant to section 16 of the Mental Capacity Act 2005, that it was lawful and in P’s best interests that he continued to reside at Z House.

In a reserved judgment published on 14 June 2011, the judge also declared that P’s care plan at Z House did involve a deprivation of liberty.

The council responsible for P’s community care needs and for accommodating him, Cheshire West and Chester, appealed on this issue.

The Court of Appeal has now found in favour of the local authority, concluding that there was no deprivation of liberty.

Lord Justice Munby said what was at stake was whether P was entitled to the important procedural protections of Article 5(4) and, in particular, to the regular ongoing reviews of his detention (if such it be) mandated by Article 5.

In his ruling the Court of Appeal judge brought together “some aspects of the jurisprudence which are likely to be of significance in the kind of cases that come before the Court of Protection”.

These were:

1. “The starting point is the ‘concrete situation’, taking account of a whole range of criteria such as the ‘type, duration, effects and manner of implementation’ of the measure in question. The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, not nature or substance.
2. Deprivation of liberty must be distinguished from restraint. Restraint by itself is not deprivation of liberty.
3. Account must be taken of the individual's whole situation.
4. The context is crucial.
5. Mere lack of capacity to consent to living arrangements cannot in itself create a deprivation of liberty
6. In determining whether or not there is a deprivation of liberty, it is legitimate to have regard both to the objective ‘reason’ why someone is placed and treated as they are and also to the objective ‘purpose’ (or ‘aim’) of the placement.
7. Subjective motives or intentions, on the other hand, have only limited relevance. An improper motive or intention may have the effect that what would otherwise not be a deprivation of liberty is in fact, and for that very reason, a deprivation. But a good motive or intention cannot render innocuous what would otherwise be a deprivation of liberty. Good intentions are essentially neutral. At most they merely negative the existence of any improper purpose or of any malign, base or improper motive that might, if present, turn what would otherwise be innocuous into a deprivation of liberty. Thus the test is essentially an objective one.
8. In determining whether or not there is a deprivation of liberty, it is always relevant to evaluate and assess the 'relative normality' (or otherwise) of the concrete situation.
9. But the assessment must take account of the particular capabilities of the person concerned. What may be a deprivation of liberty for one person may not be for another.
10. In most contexts (as, for example, in the control order cases) the relevant comparator is the ordinary adult going about the kind of life which the able-bodied man or woman on the Clapham omnibus would normally expect to lead.
11. But not in the kind of cases that come before the Family Division or the Court of Protection. A child is not an adult. Some adults are inherently restricted by their circumstances. The Court of Protection is dealing with adults with disabilities, often, as in the present case, adults with significant physical and learning disabilities, whose lives are dictated by their own cognitive and other limitations.
12. In such cases the contrast is not with the previous life led by X (nor with some future life that X might lead), nor with the life of the able-bodied man or woman on the Clapham omnibus. The contrast is with the kind of lives that people like X would normally expect to lead. The comparator is an adult of similar age with the same capabilities as X, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations as X. Likewise, in the case of a child the comparator is a child of the same age and development as X.”

Lord Justice Munby also sought to emphasise a further point. “The fact that a domestic setting can involve a deprivation of liberty does not mean that it very often will,” he said.

“Indeed, typically it will not. In the kind of context with which we are here concerned – the care of children or vulnerable adults – there will normally be no deprivation of liberty if someone is being cared for by their parents, friends or relatives in a family home. Nor, I should add, will there normally be any deprivation of liberty if they are in a foster placement or its adult equivalent or in the kind of small specialist sheltered accommodation of the type occupied by MEG [in the case of MIG and MEG].”

The judge said there might be cases – “though one would hope only rarely” – where the Court of Protection would have concerns about whether something is being done for some improper purpose or with some improper motive.

“Such cases apart, I would hope and expect that the Court of Protection will be able to deal with most cases of this type fairly but at the same time simply and quickly,” Lord Justice Munby added.

The judge said many of the cases coming before the Court of Protection would fall fairly obviously into the category of care by parents, friends, relatives, foster placements and specialist sheltered accommodation “and can thus be dealt with quite quickly on the basis that there is no deprivation of liberty”.

He said: “At the other end of the spectrum there will be cases such as HL v United Kingdom (2004) 40 EHRR 761, DE v JE and Surrey County Council [2006] EWHC 3459 (Fam), [2007] 2 FLR 1150, and London Borough of Hillingdon v Neary [2011] EWHC 1377 (COP), where it should not take too long to determine that there is a deprivation of liberty. The more difficult cases, and, I would hope, the only ones that may need more protracted investigation, are those in the middle of the spectrum.”

Turning to the appeal in P’s case, Lord Justice Munby said a fundamental problem was that Baker J “never compared P’s situation in Z House 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.”

The judge, he added, “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 P’s life, wherever he might be living, was dictated by his disabilities and difficulties. “There is nothing to show that the life P is living at Z House is significantly different from the kind of life that anyone with his concatenation of difficulties could normally expect to lead, wherever and in whatever kind of setting they were living,” he said.

“On the contrary, as Baker J himself recognised, there is, using the phrase in its correct sense, 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 Court of Appeal judge added that the fact that P could not go anywhere or do anything without the support or assistance of staff at Z House – a key element in Baker J’s view that indicated there was a deprivation of liberty – was the reality inherent in and dictated by his various disabilities.

“It is not something imposed on him by Z House,” Lord Justice Munby said. “There is nothing to show that P would not require the same kind of ‘support and assistance’ wherever he was living and in whatever kind of setting. Plainly he would.”

Lord Justice Munby added that the measures applied to P from time to time were far removed from the physical and chemical restraints found, say, in mental hospitals. “They are, in truth, the kinds of occasional restraint that anyone caring for P in whatever setting – for example, his own mother if he was still living at home – would from time to time have to adopt.”

The Court of Appeal judge said matters such as the body suit and finger sweeping to remove materials in P’s mouth were not capable of tipping the balance and should not be given the weight ascribed by Mr Justice Baker.

On the body suit, Lord Justice Munby said: “One could just as well argue that a small child because he has to live where his parents determine, is deprived of his liberty if, as a baby, he is strapped into a buggy or, as an older child, is strapped into a car seat”.

The finger sweeping, though obviously intrusive, had to be looked at in context. “It is little different from what any properly attentive parent would do if a young child was chewing or about to swallow something unpleasant or potentially harmful,” the judge said, adding that the only difference in P’s case was two people were needed to do it.

Lord Justice Munby said this degree of restraint was far removed from anything that began to approach a deprivation of liberty. “Restraint must be distinguished from deprivation of liberty,” he said. “In extreme cases restraint may be so pervasive as to constitute a deprivation of liberty, but restraint by itself is not deprivation of liberty.”

Lord Justice Munby concluded that P’s situation was far removed from cases such as HL v United Kingdom, DE v JE and Surrey County Council, and London Borough of Hillingdon v Neary.

The concrete situation in which P found himself at Z House was instead very much closer to the concrete situation of MEG [in the MIG and MEG case], who was living in a rather similar type of placement.

“At Z House and outside it P is living a life which is as normal as it can be for someone in his situation,” the judge said.

Philip Hoult