The long-awaited judgment in “Cheshire West” case was made public yesterday. It is being seen as a somewhat radical decision in the extension of protection to vulnerable people and it all concerns the phrase “deprivation of liberty” for the purposes of the Mental Capacity Act 2005.
So anticipated was this verdict that mental health professionals were tuning in to live internet streams of the UK Supreme Court at 9:15am to watch it live and then there was frantic activity on social media as people attempted to secure the hyperlinks to the ruling itself and some associated commentary.
I can’t recall a case over the last few years, where the verdict was so keenly awaited. Watching social media reminded me of how literally excited I became waiting for the MS v UK verdict in 2012. I couldn’t get my hands on it quick enough and was barely able to take it in as I read it the first few times.
So – what was all the fuss about?!
The “Cheshire West” case was an appeal to the UK Supreme Court consolidating the points of law that arose in two seperate cases, but has become known after the appeal case of Cheshire West and Chester Council v P (2011). In that case, a 39-year-old man with cerebral palsy and Down’s syndrome who required 24hr supervision had lived with his mother until he was 37. When her health deteriorated the local social services authority obtained orders from the Court of Protection that it was in P’s best interests to live in accommodation arranged by the authority. He lived in a staffed bungalow with other residents near his home and has one-to-one support to enable him to leave the house frequently for activities and visits. Intervention was sometimes required when he exhibited challenging behaviour and original judge in the High Court held that these arrangements did deprive him of his liberty but that it was in P’s best interests for them to continue. The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty, after comparing his circumstances with another person of the same age and disabilities as P. It ruled that it was ‘normal’ for people like P.
Also considered was the seperate case of P and Q v Surrey County Council (2011). These two sisters, known throughout the process as MIG and MEG, are sisters who became the subject of care proceedings in 2007 when they were 16 and 15 – both have learning disabilities. MIG was placed with a foster-mother to whom she was devoted and went to a further education unit daily. She never attempted to leave the foster home by herself but would have been restrained from doing so had she tried. MEG was moved from foster care to a residential home for learning disabled adolescents with complex needs. She sometimes required physical restraint and received tranquillising medication. When the care proceedings were transferred to the Court of Protection in 2009, the judge held that these living arrangements were in the sisters’ best interests and did not amount to a deprivation of liberty. This finding was upheld by the Court of Appeal
THE SUPREME COURT RULING
Those mental health professionals who make decisions about a deprivation of liberty have eagerly anticipated this case. It was known, one way or the other, that the Supreme Court would provide the framework which ensured clarity around how a deprivation of liberty was to be defined. In the two cases, the first courts to hear the cases had taken a different view, admittedly in non-identical cases. The dilemmas were brought together in the Court of Appeal judgment that ruled they were not deprivations, despite the fact that in each case, the individuals were not free to do as they wished and were subject to supervision, physical containment and restraint, on occasion.
Lady Hale delivered the main ruling of the Supreme Court and the judgment is encapsulated nicely in the memorable phrase, “A gilded cage is still a cage.” —–
“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.”
The ruling seems to have been very widely welcomed as making it straight-forward to determine what will in the future, constitute a deprivation of liberty although Professor Phil FENNELL from Cardiff University law school expressed the view that it will now mean that far more people come under the scope of the Deprivation of Liberty Safeguards which will mean greater strain upon the public system to assess and review to ensure ongoing compliance. That said it seems to be particularly welcome that the concept of “relative normality” has been abandoned. The Court of Appeal sought to judge the intrusion into the freedom and liberty of the individuals concerned based upon what other individuals with similar disabilities would have been subject to. In this ruling, a deprivation of liberty has been defined without reference to disability, but on whether action taken or care provided does, in fact, represent an intrusion and restriction on the lives of individuals. That this may be done in good faith, with the intention of enhancing the dignity, safety and / or wellbeing of others is not the point: it is still a deprivation of liberty.
A gilded cage is still a cage.
- The full judgment of the Supreme Court.
- The press release from the Supreme Court, summarising the issues
- Coverage in the Guardian – “More Safeguards to ensure rights for the disabled“
- A really useful summary of the case and its implications from Doughty Sreet Chambers, who barristers represented interested parties in the case.
- House of Lords report (2014) on the Mental Capcity Act 2005
Winner of the Mind Digital Media Award.