When will restrictions on autonomy amount to a deprivation of liberty?

Cheshire West and Chester Council v P [2011] EWHC 1330 (Fam) (9 November 2011)

Summary

The Court of Appeal has found that the care plan of a man lacking capacity under the Mental Capacity Act 2005 (UK) did not involve a deprivation of liberty within the meaning of article 5 of the ECHR. In so doing, it has usefully clarified the principles which should be taken into account when considering whether a person has been deprived of his or her liberty within the meaning of article 5. Most significantly, the judgment has clarified that in analysing whether article 5 is engaged:

• the objective reason for, and objective purpose/aim of, the restrictions imposed are relevant considerations (whereas subjective motives or intentions are of limited relevance); and
• that person's situation must be compared with the appropriate comparator (namely, “another person of similar age with the same capabilities, affected by the same condition or suffering from the same inherent mental and physical disabilities and limitations”).

Facts

P, a 39 year old man with cerebral palsy and Down's Syndrome, lacked the capacity to make decisions about his own care and residence as a result of his physical and learning disabilities. From November 2009, he resided at a facility called 'Z House'. The question arose whether P was deprived of his liberty during his time at the facility, by virtue of certain restrictions imposed upon P by the staff:

• to manage his general living conditions; and
• to address certain challenging behaviour identified in his care plan (including placing soiled continence pads into his mouth, picking at his skin causing wounds, being aggressive towards others and banging/ slapping his head).

These restrictions included P being under the control of staff at all times and occasional physical restraint and physical intervention (for instance, 'finger sweeping' to remove soiled continence pads from his mouth).

At first instance in the Court of Protection, Barker J found that while care had been taken to ensure P's life was 'as normal as possible' and it was in his best interests to continue to reside at 'Z House', his care plan involved a deprivation of liberty because he was under the staff's control at all times and the interventions targeting certain behaviour 'as a matter of concrete fact and legal principle, involve[d] a deprivation of his liberty'. The question did not go to the legality of the deprivation as the order made lawful anything that would breach article 5, but rather whether P was entitled to the procedural protections of article 5(4).

The Cheshire West and Chester Council, which was responsible for P's care, appealed the decision to the Court of Appeal, arguing that P's care plan at 'Z House' did not involve a deprivation of liberty.

Decision

The Court of Appeal (Munby LJ, Lloyd LJ and Pill LJ agreeing) unanimously decided in favour of the Council, holding that P's care plan did not constitute a deprivation of liberty.

After considering the ambit of article 5 and reviewing the relevant case law on deprivation of liberty, Munby LJ drew attention to 'some aspects of the jurisprudence which are likely to be of significance in the kind of cases that come before the Court of Protection ([102]). In essence, these were:

• 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.
• Deprivation of liberty must be distinguished from restraint. Restraint by itself is not deprivation of liberty.
• Account must be taken of the individual's whole situation.
• The context is crucial.
• Mere lack of capacity to consent to living arrangements cannot in itself create a deprivation of liberty.
• 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 the objective purpose/ aim of the placement.
• Subjective motives or intentions have only limited relevance. The test is essentially an objective one. An improper motive or intention may have the effect of making something a deprivation when it otherwise would not have been one. However, good intentions are neutral at best.
• 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.
• But the assessment must also take account of the particular capabilities of the person concerned.
• In most contexts, the relevant comparator is the ordinary adult going about the kind of life which an average able-bodied person would normally be expected to lead.
• However, this is not the case in the kind of cases typically before the Court of Protection, which typically dealt with adults whose lives were dictated by their own cognitive and other limitations.
• In these cases, the appropriate contrast is not with the life led by X, nor with the life of an able-bodied person, but with the kind of lives that people like X would normally expect to lead. The comparator is a person 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.

Munby LJ also emphasised that the mere fact that a domestic setting could involve a deprivation of liberty, did not mean that such a finding was likely in most cases. On the contrary, when considering the care of vulnerable children or adults by friends, family or carers in a small specialist facility, there would typically be no deprivation of liberty.  He went on to indicate that, in the absence of an improper purpose or improper motive, he expected these kinds of cases could be dealt with simply and quickly.

Applying this analysis to P's situation, Munby LJ (with whom Lloyd LJ and Pill LJ agreed) departed from Baker J's reasoning and held that there was no deprivation of liberty amounting to an infringement of article 5. Most significantly, Munby LJ considered that there was nothing to show that the life P was living at 'Z House' was significantly different from the kind of life that anyone with similar disabilities would expect to lead and he was living a life (both inside and outside 'Z House') as normal as possible for someone in his situation with his capabilities. The kinds of occasional and brief restraint placed upon P were likely to have been adopted by anyone caring for P in any setting and were 'far removed indeed from anything that begins to approach a deprivation of liberty' ([114]).

Relevance to the Victorian Charter

The right to liberty and security of the person is protected by s 21 of the Charter. Section 21 relevantly provides that every person has the right to liberty and security, a person must not be subjected to arbitrary arrest or detention and a person must not be deprived of his or her liberty except on grounds, and in accordance with procedures, established by law. Section 21(7) also provides that a person deprived of liberty is entitled to apply for a declaration or order regarding the lawfulness of the arrest or detention. The principles articulated in this case about what constitutes a deprivation of liberty under article 5 of the ECHR, and in particular, the appropriate comparison by reference to which such a determination should be made, could thus provide useful guidance as to the interpretation of s 21 of the Charter.

The decision is available online at: http://www.bailii.org/ew/cases/EWCA/Civ/2011/1257.html

Mary Quinn is a Seasonal Clerk at Allens Arthur Robinson