If you do Court of Protection work, you have probably been waiting for the Supreme Court’s decision in Cheshire West and Chester, which is here
The Supreme Court decided unanimously that P’s liberty was being deprived, and on a 4-3 split that MIG and MEG’s liberty was being deprived. [Yes, a 4-3 split in which Lady Hale finished on the winning side. A 4-3 split does, however indicate that the issues are difficult and that it wasn't an easy decision or foregone conclusion - they also overturned the Court of Appeal on these two linked cases]
At the same time, they dismantled the Court of Appeal’s notion that a factual determination of whether someone’s liberty was being deprived was a subjective comparison with what would be reasonable to do for someone of similar characteristics. This is also, as far as I know, the first finalised deprivation of liberty decision applying to a person living in a foster placement rather than a care home or hospital.
If you do only care or children work, you’ve probably never heard of Cheshire West, or MIG and MEG, or possibly even DoLs; but just in case you think you can cheerfully ignore all of them, give me one paragraph of your time, to convince you that you ought to learn a bit about this case.
The President has issued guidance saying that Deprivation of Liberty applications don’t apply to children under 17 (he is right), and that if there is in a child’s case a deprivation of liberty issue then the mechanism is either detention under the Mental Health Act or an application for a Secure Accommodation Order. The Supreme Court here decided, on a 4-3 split, that what was happening to two young women (formerly children) in a foster care / residential home setting WAS a deprivation of liberty. And therefore, if this was happening to children in other cases, those other cases ought to be the subject of a Secure Accommodation application, or Mental Health Act intervention.
Children have historically been the subject of Secure Accommodation applications if they are absconding, or taking deliberate actions, but this case raises that if their liberty is being deprived as a result of their vulnerabilities or medical situation or functioning, that can still equate to a deprivation of liberty which needs to be sanctioned by the Court.
That is only the case if it is the State, or a limb of the State that is restricting the child’s liberty.
54. Similar constraints would not necessarily amount to a deprivation of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions.
I come back to this at the very end of the piece, so if you really don’t care about Court of Protection work, you can skip to the bottom.
What sort of restrictions were being applied to those young women, and why? (I’ll call them MIG and MEG, as they were initially dubbed. This is interchanged in the judgment with P and Q, but because the Supreme Court were dealing with two cases interlinked “P” and “MIG and MEG” / “P and Q” I think it is confusing to have two separate “P” cases in the same discussion)
11. MIG and MEG are sisters who first became the subject of care proceedings under the Children Act 1989 in 2007, when they were aged respectively 16 and 15. MIG has a learning disability at the lower end of the moderate range or the upper end of the severe range. She also has problems with her sight and her hearing. She communicates with difficulty and has limited understanding, spending much of her time listening to music on her iPod. She needs help crossing the road because she is unaware of danger. MEG has a learning disability at the upper end of the moderate range, bordering on the mild. Her communication skills are better than her sister’s and her emotional understanding is quite sophisticated. Nevertheless, she may have autistic traits and she exhibits challenging behaviour.
- At the time of the final hearing before Parker J in 2010, MIG (then aged 18) was living with a foster mother with whom she had been placed when she was removed from home. She was devoted to her foster mother (whom she regarded as her “mummy”). Her foster mother provided her with intensive support in most aspects of daily living. She had never attempted to leave the home by herself and showed no wish to do so, but if she did, the foster mother would restrain her. She attended a further education unit daily during term time and was taken on trips and holidays by her foster mother. She was not on any medication.
- MEG (then aged 17) had originally been placed with a foster carer, who was unable to manage her severe aggressive outbursts, and so she was moved to a residential home. She mourned the loss of that relationship and wished she was still living with her foster carer. The home was an NHS facility, not a care home, for learning disabled adolescents with complex needs. She had occasional outbursts of challenging behaviour towards the other three residents and sometimes required physical restraint. She was also receiving tranquillising medication. Her care needs were met only as a result of continuous supervision and control. She showed no wish to go out on her own and so did not need to be prevented from doing so. She was accompanied by staff whenever she left. She attended the same further education unit as MIG and had a much fuller social life than her sister.
The original Court of Protection hearing decided that what was happening was NOT a deprivation of liberty, and that any restrictions were for the best interests of MIG and MEG and were justified.
The Court of Appeal agreed:  EWCA Civ 190  Fam 170. Wilson LJ, who gave the leading judgment, laid stress on the “relative normality” of the sisters’ lives, compared with the lives they might have at home with their family (paras 28, 29), together with the absence of any objection to their present accommodation (para 26). Mummery LJ was also impressed with the “greater fulfilment in an environment more free than they had previously had” (para 52). Smith LJ, on the other hand, thought their previous arrangements were not relevant, but stressed that “what may be a deprivation of liberty for one person may not be for another” (para 40).
That sentence lays at the heart of the two appeals to the Supreme Court. In the other case, involving an adult named P, the Supreme Court were unanimous that his liberty had been deprived.
- P was aged 38 at the time of the Court of Protection hearing. He was born with cerebral palsy and Down’s syndrome and required 24 hour care to meet his personal care needs. Until he was 37 he lived with his mother, who was his principal carer, but her health began to deteriorate and the local social services authority concluded that she was no longer able to look after P. In 2009 they obtained orders from the Court of Protection that it was in P’s best interests to live in accommodation arranged by the local authority.
- Since November 2009, he had been living in Z house. This was not a care home. It was a spacious bungalow, described by an independent social worker as cosy and with a pleasant atmosphere, and close to P’s family home. At the time of the final hearing, he shared it with two other residents. There were normally two staff on duty during the day and one “waking” member of staff overnight. P received 98 hours additional one to one support each week, to help him to leave the house whenever he chose. He went to a day centre four days a week and a hydrotherapy pool on the fifth. He also went out to a club, the pub and the shops, and saw his mother regularly at the house, the day centre and her home. He could walk short distances but needed a wheel chair to go further. He also required prompting and help with all the activities of daily living, getting about, eating, personal hygiene and continence. He wore continence pads. Because of his history of pulling at these and putting pieces in his mouth, he wore a “body suit” of all-in-one underwear which prevented him getting at the pads. Intervention was also needed to cope with other challenging behaviours which he could exhibit. But he was not on any tranquillising medication.
- By the time of the final hearing before Baker J in April 2011, the principal issue was whether these arrangements amounted to a deprivation of liberty. Baker J held that P was completely under the control of the staff at Z House, that he could not “go anywhere, or do anything, without their support and assistance” (para 59). Further, “the steps required to deal with his challenging behaviour lead to a clear conclusion that, looked at overall, P is being deprived of his liberty” (para 60). Nevertheless it was in his best interests for those arrangements to continue:  EWHC 1330 (Fam).
That decision was reversed by the Court of Appeal
The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty:  EWCA Civ 1257,  PTSR 1447. Munby LJ, who delivered the leading judgment with which Lloyd and Pill LJJ agreed, developed the concept of “relative normality” adopted in P and Q, and considered it appropriate to compare P’s life, not with that which he had enjoyed before when living with his mother, but with that which other people like him, with his disabilities and difficulties, might normally expect to lead. As Lloyd LJ put it, “It is meaningless to look at the circumstances of P in the present case and to compare them with those of a man of the same age but of unimpaired health and capacity. . . . the right comparison is with another person of the same age and characteristics as P” (para 120).
This concept of ‘relative normality’ or ‘what might be a deprivation of liberty for one person might not be for another’ really lays at the heart of these appeals to the Supreme Court. In essence, is whether someone is deprived of liberty an OBJECTIVE test, or a SUBJECTIVE test?
There is an excellent history of how the “deprivation of liberty” legislation came about in Lady Hale’s judgment, well worth a read.
There were a category of people who weren’t detained under the Mental Health Act, or under criminal legislation, but who were being effectively detained because they lacked the capacity to say “I want to leave” or that if they tried to leave weren’t allowed to do so.
This came to a head with a man named L, who took his case up to the House of Lords. R v Bournewood Community and Mental Health NHS Trust, ex p L  1 AC 458. He had been living with foster carers, became agitated one day at a day care centre and was taken off to hospital, and the carers were not able to get him out. If he HAD been detained under any legislation, then the carers would have had access to legal routes to challenge the decision, but were left in a grey area where they and L seemed to have no rights at all.
The majority decision of the House of Lords was that he had not been detained, and if he had been, it had been under the doctrine of necessity.
Lord Steyn disagreed, forcefully and said
- “Counsel for the trust and the Secretary of State argued that L was in truth always free not to go to the hospital and subsequently to leave the hospital. This argument stretches credulity to breaking point. The truth is that for entirely bona fide reasons, conceived in the best interests of L, any possible resistance by him was overcome by sedation, by taking him to hospital and by close supervision of him in hospital and, if L had shown any sign of wanting to leave, he would have been firmly discouraged by staff and, if necessary, physically prevented from doing so. The suggestion that L was free to go was a fairy tale.”
When the case went to the European Court of Human Rights, Lord Steyn was shown to be right, and went about his day without egg on his face.
- The case then went to the European Court of Human Rights as HL v United Kingdom (2004) 40 EHRR 761. The court agreed with Lord Steyn that HL had been deprived of his liberty. It found violations, both of the right to liberty, in article 5(1) of the Convention for the Protection of Human Rights and Fundamental Freedoms, and of the right of a detained person to speedy access to a court which can order his release if his detention is not lawful, in article 5(4). Article 5(1)(e) permits the lawful detention of persons of unsound mind, but that detention has to conform to the Convention standards of legality, and the doctrine of necessity did not provide HL with sufficient protection against arbitrary deprivation of his liberty. The court was struck by the difference between the careful machinery for authorising the detention and treatment of compulsory patients under the Mental Health Act and the complete lack of any such machinery for compliant incapacitated patients such as HL.
- Key passages from the judgment are these:
“89. It is not disputed that in order to determine whether there has been a deprivation of liberty, the starting point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance.
90. . . . . The majority of the House of Lords specifically distinguished actual restraint of a person (which would amount to false imprisonment) and restraint which was conditional upon his seeking to leave (which would not constitute false imprisonment). The court does not consider such a distinction to be of central importance under the Convention. Nor, for the same reason, can the court accept as determinative the fact . . . that the regime applied to the applicant (as a compliant incapacitated patient) did not materially differ from that applied to a person who had the capacity to consent to hospital treatment, neither objecting to their admission to hospital. The court recalls that the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention, especially when it is not disputed that that person is legally incapable of consenting to, or disagreeing with, the proposed action.
91. . . . the court considers the key factor in the present case to be that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements from the moment he presented acute behavioural problems on 22 July 1997 to the date he was compulsorily detained on 29 October, 1997. . . .
Accordingly, the concrete situation was that the applicant was under continuous supervision and control and was not free to leave. Any suggestion to the contrary was, in the Court’s view, fairly described by Lord Steyn as ‘stretching credulity to breaking point’ and as a ‘fairy tale’.”
As a result, it became necessary for the UK to introduce a statutory mechanism to deal with people like L, and that mechanism was the deprivation of liberty powers within the Mental Capacity Act 2005
Deprivation of liberty is not permitted under the Act save in three circumstances: (i) it is authorised by the Court of Protection by an order under section 16(2)(a); (ii) it is authorised under the procedures provided for in Schedule A1, which relates only to deprivations in hospitals and in care homes falling within the meaning of the Care Standards Act 2000 (see Schedule A1, para 178); (iii) it falls within section 4B, which allows deprivation if it is necessary in order to give life sustaining treatment or to prevent a serious deterioration in the person’s condition while a case is pending before the court.
Lady Hale goes on to say that the safeguards have the appearance of bewildering complexity (only the appearance?) and a few High Court Judges, notably Peter Jackson J have remarked in judgments that the law on deprivation of liberty has become so complex that nobody can understand it, least of all the relatives or carers of the vulnerable people who need to be safeguarded by it.
Let’s get on with the central argument
- The first and most fundamental question is whether the concept of physical liberty protected by article 5 is the same for everyone, regardless of whether or not they are mentally or physically disabled. Munby LJ in P’s case appears to have thought that it is not, for he criticised the trial judge for failing to grapple 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 they are not. Because of his disabilities, P is inherently restricted in the kind of life he can lead. P’s life, wherever he may be living, whether at home with his family or in the home of a friend or in somewhere like Z House is, to use Parker J’s phrase…, dictated by his disabilities and difficulties” (para 110).
This view has been confirmed by the rejection in Austin v United Kingdom (2012) 55 EHRR 14, para 58, with specific reference to the care and treatment of mentally incapacitated people, of any suggestion by the House of Lords in Austin v Comr of Police of the Metropolis  AC 564 that a beneficial purpose might be relevant (and see also MA v Cyprus (Application No 41872/10), 23 July 2013 and Creanga v Romania (2013) 56 EHRR 11).
- The answer given by Mr Richard Gordon QC, who appears instructed by the Official Solicitor on behalf of all three appellants, is that this confuses the concept of deprivation of liberty with the justification for imposing such a deprivation. People who lack the capacity to make (or implement) their own decisions about where to live may justifiably be deprived of their liberty in their own best interests. They may well be a good deal happier and better looked after if they are. But that does not mean that they have not been deprived of their liberty. We should not confuse the question of the quality of the arrangements which have been made with the question of whether these arrangements constitute a deprivation of liberty.
To be honest, you can just assume that I am saying “hear hear” at most paragraph breaks from here on in. But hell yeah.
- Allied to the “inevitable corollary” argument it might once have been suggested that a person cannot be deprived of his liberty if he lacks the capacity to understand and object to his situation. But that suggestion was rejected in HL v United Kingdom. In any event, it is quite clear that a person may be deprived of his liberty without knowing it. An unconscious or sleeping person may not know that he has been locked in a cell, but he has still been deprived of his liberty. A mentally disordered person who has been kept in a cupboard under the stairs (a not uncommon occurrence in days gone by) may not appreciate that there is any alternative way to live, but he has still been deprived of his liberty. We do not have any difficulty in recognising these situations as a deprivation of liberty. We should not let the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty.
- The whole point about human rights is their universal character. The rights set out in the European Convention are to be guaranteed to “everyone” (article 1). They are premised on the inherent dignity of all human beings whatever their frailty or flaws. The same philosophy underpins the United Nations Convention on the Rights of Persons with Disabilities (CRPD), ratified by the United Kingdom in 2009. Although not directly incorporated into our domestic law, the CRPD is recognised by the Strasbourg court as part of the international law context within which the guarantees of the European Convention are to be interpreted. Thus, for example, in Glor v Switzerland, Application No 13444/04, 30 April 2009, at para 53, the Court reiterated that the Convention must be interpreted in the light of present-day conditions and continued:
“It also considers that there is a European and Worldwide consensus on the need to protect people with disabilities from discriminatory treatment (see, for example, Recommendation 1592 (2003) towards full inclusion of people with disabilities, adopted by the Parliamentary Assembly of the Council of Europe on 29 January 2003, or the United Nations Convention on the Rights of Persons with Disabilities, which entered into force on 3 May 2008).”
So, there isn’t a different test about whether someone’s liberty is being deprived because of the circumstances of that individual (that might go to the later question of whether the deprivation is justified or justifiable, but it is a straight factual decision – EVERYONE has the right not to be deprived of their liberty, and you don’t lose that right just because you are autistic or vulnerable in other ways. We certainly don’t compare sedating a vulnerable person and preventing them from leaving with putting a seatbelt on a wriggling child in the back of a car. (Or at least, we don’t any more, that comparison was made in one of these Deprivation of Liberty – DoLS cases)
Second question then, if deprivation of liberty is a factual question, what are the characteristics that decides whether someone is, or is not being deprived of their liberty?
The second question, therefore, is what is the essential character of a deprivation of liberty? It is common ground that three components can be derived from Storck, paras 74 and 89, confirmed in Stanev, paras 117 and 120, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state. Components (b) and (c) are not in issue here, but component (a) is.
- In none of the more recent cases was the purpose of the confinement – which may well have been for the benefit of the person confined – considered relevant to whether or not there had been a deprivation of liberty. If the fact that the placement was designed to serve the best interests of the person concerned meant that there could be no deprivation of liberty, then the deprivation of liberty safeguards contained in the Mental Capacity Act would scarcely, if ever, be necessary. As Munby J himself put it in JE v DE  2 FLR 1150, para 46:
“I have great difficulty in seeing how the question of whether a particular measure amounts to a deprivation of liberty can depend upon whether it is intended to serve or actually serves the interests of the person concerned. For surely this is to confuse . . . two quite separate and distinct questions: Has there been a deprivation of liberty? And, if so, can it be justified?”
ie, something doesn’t cease to be a deprivation of liberty just because there are good reasons for it – what you have there is a deprivation of liberty which is justified, and the Court can sanction it.
- In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.
- Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.
- For that reason, I would reject the “relative normality” approach of the Court of Appeal in the case of P  PTSR 1447, where the life which P was leading was compared with the life which another person with his disabilities might be leading
- P, MIG and MEG are, for perfectly understandable reasons, not free to go anywhere without permission and close supervision. So what are the particular features of their “concrete situation” on which we need to focus?
- The answer, as it seems to me, lies in those features which have consistently been regarded as “key” in the jurisprudence which started with HL v United Kingdom 40 EHRR 761: that the person concerned “was under continuous supervision and control and was not free to leave” (para 91). I would not go so far as Mr Gordon, who argues that the supervision and control is relevant only insofar as it demonstrates that the person is not free to leave. A person might be under constant supervision and control but still be free to leave should he express the desire so to do. Conversely, it is possible to imagine situations in which a person is not free to leave but is not under such continuous supervision and control as to lead to the conclusion that he was deprived of his liberty. Indeed, that could be the explanation for the doubts expressed in Haidn v Germany.
- The National Autistic Society and Mind, in their helpful intervention, list the factors which each of them has developed as indicators of when there is a deprivation of liberty. Each list is clearly directed towards the test indicated above. But the charities do not suggest that this court should lay down a prescriptive list of criteria. Rather, we should indicate the test and those factors which are not relevant. Thus, they suggest, the person’s compliance or lack of objection is not relevant; the relative normality of the placement (whatever the comparison made) is not relevant; and the reason or purpose behind a particular placement is also not relevant. For the reasons given above, I agree with that approach
You are looking for – is a person under continuous supervision and control, are they free to leave.
It is NOT relevant that the person is complying or not objecting.
It is NOT relevant that a person in similar circumstances to this person would have the same sort of placement or restrictions
It is NOT relevant that the reason for the restrictions is to protect the person or that it is for their own good (that comes into the second stage – is the deprivation justifiable)
54. If the acid test is whether a person is under the complete supervision and control of those caring for her and is not free to leave the place where she lives, then the truth is that both MIG and MEG are being deprived of their liberty. Furthermore, that deprivation is the responsibility of the state. Similar constraints would not necessarily amount to a deprivation of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions.
And on P
- In the case of P, the Court of Appeal should not have set aside the decision of the judge for the reasons they gave. Does it follow that the decision of the judge should be restored? In my view it does. In paragraph 46 of his judgment, he correctly directed himself as to the three components of a deprivation of liberty derived from Storck; he reminded himself that the distinction between a deprivation of and a restriction of liberty is one of degree or intensity rather than nature or substance; and he held that “a key factor is whether the person is, or is not, free to leave. This may be tested by determining whether those treating and managing the patient exercise complete and effective control of the person’s care and movements” (para 46(5)). It is true that, in paragraph 48, he summarised the further guidance given by the Court of Appeal in P and Q, including the relevance of an absence of objection and the relative normality of the person’s life, which in my view are not relevant factors. But when he considered the circumstances of P’s life at the Z house, he remarked (para 58) upon the very great care taken by the local authority and the staff of Z House to ensure that P’s life was as normal as possible, but continued (para 59):
“On the other hand, his life is completely under the control of members of staff at Z House. He cannot go anywhere or do anything without their support and assistance. More specifically, his occasionally aggressive behaviour, and his worrying habit of touching and eating his continence pads, require a range of measures, including at time physical restraint, and, when necessary, the intrusive procedure of inserting fingers into his mouth whilst he is being restrained.”
In my view, in substance the judge was applying the right test, derived from HL v United Kingdom, and his conclusion that “looked at overall, P is being deprived of his liberty” (para 60) should be restored.
And in conclusion Lady Hale says
Because of the extreme vulnerability of people like P, MIG and MEG, I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty in their case. They need a periodic independent check on whether the arrangements made for them are in their best interests. Such checks need not be as elaborate as those currently provided for in the Court of Protection or in the Deprivation of Liberty safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes). Nor should we regard the need for such checks as in any way stigmatising of them or of their carers. Rather, they are a recognition of their equal dignity and status as human beings like the rest of us.
As I said at the outset, the Supreme Court was unanimous that P’s liberty had been deprived, but were 4-3 split on MIG and MEG, the majority agreeing with Lady Hale that their liberty had been deprived.
The dissenting views were in very broad terms based on agreement with this proposition by Parker J in the original decision on MIG and MEG
- 107. “225. Freedom to leave has to be assessed against the background that neither wants to leave their respective homes, there is no alternative home save that of their mother where neither wishes to live, and neither appears to have the capacity to conceptualise any alternative unfamiliar environment. I have been told and I accept that if the local authority felt that either was actively unhappy where they were placed, then other arrangements would be made.
226. In my view it is necessary to analyse what specific measures or restraints are in fact required. …”
nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty. I am not persuaded that the ECtHR would so hold. A more measured conclusion would be that MIG’s liberty was interfered with and not that she had been deprived of her liberty. The same is true of MEG.
I am aware, in conclusion, that I have devoted far more time to the majority judgment and lead judgment of Lady Hale than to the dissent; an analysis of the nuances between them is probably beyond the scope of this blog and I’ll leave it to specialists like Lucy Series over at The Small Places blog.
[Lucy hasn’t written on it yet, but can I refer you to this brilliant, stirring and beautiful piece on the House of Lords dissection of the MCA http://thesmallplaces.wordpress.com/2014/03/14/democracy-in-action/
I wish that I could write with an ounce of Lucy’s passion – she’s the sort of writer that makes me want to man the barricades. If, as the House of Lords hint, there should be some sort of monitoring/oversight/scrutiny/guidance body other than the Courts overseeing the MCA, Lucy should be on it ]
Plus, as I have not even attempted to disguise during this piece, I wholly agree with Lady Hale’s determination.
It may well be that there are far more people than the current 11,800 DoLs applications as a result of this decision. Well, so be it. For me, that is more people whose liberty is being deprived having the opportunity to challenge and test that before the Courts, rather than workers on the ground deciding that they aren’t being deprived of their liberty because the restrictions are right for ‘that sort of person’ and ‘for their own good’
Maybe the number of applications will break the system. Well, then the system needs to be broken and rebuilt. Because of the extreme vulnerability of people like P and MIG and MEG, we should err on the side of extreme caution when protecting their rights.
As to the children and secure accommodation orders approach, it might be worth noting Lord Kerr’s observations (this one of the majority judgments)
- The question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place.
- All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any child or young person of similar age, their liberty would not be restricted, whatever their level of disability. As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are – and have to be – applied to them. There is therefore a restriction of liberty in their cases. Because the restriction of liberty is – and must remain – a constant feature of their lives, the restriction amounts to a deprivation of liberty.
- Very young children, of course, because of their youth and dependence on others, have – an objectively ascertainable – curtailment of their liberty but this is a condition common to all children of tender age. There is no question, therefore, of suggesting that infant children are deprived of their liberty in the normal family setting. A comparator for a young child is not a fully matured adult, or even a partly mature adolescent. While they were very young, therefore, MIG and MEG’s liberty was not restricted. It is because they can – and must – now be compared to children of their own age and relative maturity who are free from disability and who have access (whether they have recourse to that or not) to a range of freedoms which MIG and MEG cannot have resort to that MIG and MEG are deprived of liberty.
So in order to ascertain whether a deprivation of liberty is occurring you are looking at whether the restrictions being put on THIS child are comparable to that of another child of similar age – of course carers and parents put different restrictions on an 8 year old than a 15 year old, and it is nonsense to say that the 8 year old’s liberty is being deprived as a result of not having the same freedoms as a 15 year old. But if a particular 15 year old is having restrictions that are over and above what an average 15 year old might be allowed, then the question might arise. It is important to note that whilst Lord Kerr is tolerating a degree of subjectivity, he is not saying that the test is completely subjective – the comparator is an average child of this age, not a child who has the same sort of problems, or behaviours, or vulnerabilities of this child.
Most 14 year olds wouldn’t be allowed to leave their home at 2.00am, so a foster carer doing the same won’t be depriving the child of their liberty.
Most 14 year olds have had the experience of being ‘grounded’ for bad behaviour and having a period of time in which they aren’t able to go out with their friends, or use the computer or similar, so a foster carer doing the same isn’t depriving a child of their liberty
However, most 14 year olds aren’t told that they can never leave the home except under adult supervision, or have their door locked at night, so that would be a deprivation of liberty if it happened to a child in foster care.