A Gilded Cage Is Still A Cage

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.


IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


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5 thoughts on “A Gilded Cage Is Still A Cage

  1. Reblogged this on chrys muirhead and commented:
    Lady Hale: ““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.”

  2. I have seen cruelty by professionals both social services and psychiatrists/nursing staff who have no idea what is best for the person in their care who is coersed into making decisions and made to feel bad if they do not go along with what the team think is in their best interest.

    For the past 3 years since leaving the Bethlem Royal Hospital my daughter has been unnecessarily prescribed 500mg a day of Metformine and now that I have consent to deal with the GP and challenged why she was on contra indicated drugs he could suddenly see no reason why she was ever put on these drugs in the first place. Not one of the professionals involved could have cared less as for three years my daughter has been unnecessarily drugged with a diabetic drug which should never have been given in the first place.

    When a team think that a patient such as my daughter who is a trauma victim and never had proper treatment in the first place except for drugs to the tune of about 14 anti-psychotics which have not worked as my daughter can remember everything – then someone is classed as treatment resistant but the drugs continue and it is a no win situation as there is not one single facility for someone to go in and safely come off these drugs even though it is possible. That person is given a lifetime of drugging no matter when in the first place that person could have been misdiagnosed and could have had endocrinal disorder which was never looked at because not one of these professionals gives a damn about physical health. If you show any opposition to what the team are doing they all gang up – in my daughter’s case they tried to sever contact, taking the phone away is one way for the team to do this – keeping it forever charging in the office and then along comes a psychiatrist who dislikes you and calls you a “nasty mother” advising the person in their care to concentrate on the rest of the family. Then the legal process is a joke – the family is left out of the proceedings for a whole day – the independent psychiatrist’s report which disagreed with the label and treatment was rubbished by social services and the team until I got even higher level advice backed by evidence of research etc that the team could not any longer ignore and it was with this my daughter after three years in hospital miles from home was released. All along once she had settled in to this private sector hospital was of no risk to the public or herself but they did everything in their powers to try and prevent the Tribunal going ahead and get rid of me as the Nearest Relative.

    “Believe me I know all that is evil in this system and I wish I had a £ for every time I have seen attempts made to displace nearest relatives”.

    I have also put on Twitter an interview by Jake who worked as an advocate for a year under SLaM. Professionals should take a look at this as every word is true. The patients they make out are dangerous people are not like that at all and you can have a normal conversation with some of these people. I have visited my daughter on many acute wards and have spoken to many of these patients and quite frankly I have seen shocking behaviour on the part of these professionals especially when occasionally I turned up after the visiting hours.

    Here are some of my readers comments re Deprivation of Liberty:

    “I am sure the Psychiatrists will do the opposite to what you want for your daughter. It is Psychiatrist’s way of saying “I’m in charge here! – I have seen situations where confronting the staff ie psychiatrists, nurses etc has made them react by increasing the drugs and being generally nasty to the patient and their family.”

    This is from a relative who has been barred and blocked for 6 months for disagreeing with the so called professionals and this is all over the drug treatment – “The UK is a TOTALITATIAN COUNTRY. They say there is freedom here but it is a lie! – on the hypothesis of stopping the drugs they lock people up. Shouldn’t it be your choice – how you want to be treated especially since psychiatry is a pseudo science without any scientific basis to prove why people are mentally ill.”

    “This is abuse, oppression and coercion exactly like they were lobotomising people 50 years ago.”

    “After 2-5 yrs of taking antipsychotics there is 10% shrinkage of brain tissue which can cause symptoms similar to Schizophrenia and peoples’ diagnoses are changed through their life time. “Tardive Diskinesia is 5% after every single year. “If you take the drugs all your life there is 15 years of life span shortage for outpatients and 25 years for inpatients. Chronic brain impairment and medication spell-binding that patients are not aware of how much they are impaired. Permanent brain damage with ECT – case where a woman in the US forgot everything and won huge compensation”

    “psychiatrists are arrogant and nothing will change their opinion”

    “For me they are LEGALISED CRIMINALS”

    “Article 33 of good practice says “you must be considerate and listen to views of family members” – that does not go on.

    “Psychiatry is a great machine to oppress people just like the Nazis did. and in Soviet Russia they used antipsychotics to get rid of opposition people who were fighting against the Government.”

    “mental illness is curable – ie John Nash laureate of Nobel Prize (Beautiful Mind).

    Well I have heard it said “I am proud to be a Professional” – however I just do not know how these professionals can crowd a patient – six of them pinning them down on a mattress and forcing them to take drugs just so they are like zombies on the ward easier to control and I know that this is not done just in cases where people are violent and I know that this is not done just in cases where people refuse the drugs but in the case where these so called professionals want to inject a patient rather than give them tablets in accordance with their wishes.

    SHAME ON THIS COUNTRY AND SHAME ON YOU ALL WHO TREAT PATIENTS AND THEIR FAMILIES IN THIS WAY.

    And I am more than happy to meet with any of these so called professionals as if they do not believe what they are doing is wrong I have evidence to prove it.

    The legal profession do nothing to protect people like my daughter who had a solicitor who not once visited. Solicitors are not doctors and therefore would not know anything about the drugs – come to that neither do some psychiatrists yet they are allowed by law to prescribe all these drugs to the detriment of a patient’s physical health – not one could care less after all this is not their relative and people like my daughter are just a number to them.

    1. yes, they also drug old people in retirement homes, because their inspection regime is very lax indeed, only notified inspections. The one plus on American private healthcare over the NHS is, because they want to sell you as many things as possible, they run heaps of tests, whereas on the NHS they try to run the most likely ones only first. But often therefore i think complex ones are missed eg endochrine like you say

  3. i worked with adults with learning difficulties in London for a couple of years and there was one reason only people weren’t allowed out on their own – cars. No cars, no problem. They would run into the road if they saw a dog (a good half of them were terrified of dogs and would run away if they saw one on the horizon long before you’d spotted it), if there was something they saw on the other side, just from high spirits – they didn’t have a clue how dangerous it was. I never had to restrain anyone for any other reason, that one constantly. Some people would sit down suddenly when crossing the road and a bus is bearing down on you..

    Most people drive like it doesn’t matter if they hit you. I had a damaged leg once and couldn’t go faster than hobble, but drivers invariably only slowed down enough for me to make it if i ran. It was terrifying, and that was a rural area. There are few roads you can cross in time if something appears even if the horizon was empty when you started. Even if it’s obvious you’re disabled, which it’s not if you’ve got learning difficulties, they don’t slow down: there’s a man here rigid with arthritis, can’t drive gets the bus, uses a stick. The rural road means it can be totally empty but he’s not halfway across when something doing 50mph appears and they often leave an inch or two to spare.

    It’s really easy to make grand announcements of principle and be self-righteous, it’s a damn sight harder to choose between restraining someone or letting them kill themselves and be in the wrong either way. In the residential units, standard shift was 24 hours, but your replacement often didn’t turn up or wasn’t booked. It’s illegal to work more than 24 hours straight, and it’s illegal to leave before your replacement turns up (minimum staffing – and it’s never more than that – fair enough). All the laws are carefully written to make the person with the least power responsible and make sure legal responsibility is never passed up the chain, because the higher up the chain class write them. You learn the hard way to despise the abusers at the top. The clients suffer the most, and so on up. I think this is analogous to to the problem with shifts: in theory it gives clients with learning difficulties freedoms, in practise it just shoves the whole legal burden onto the unskilled face-worker and doesn’t tell you what you’re actually meant to do: let them out on their own to be run over? Or restrain them illegally? It’s just about the rich and priviledged using the ‘human rights’ of the disabled to make themselves look good, using fine theory and refusing to do the dirty work of actually solving the real problems.

    NB i personally would like to see all cars banned because of how they disabled old people, blind people, people with learning disabilities and children. But i seem to be alone in this.

  4. i mean, my solution is to make the world equally accessible and safe for all, starting with banning all cars. You used to be able to walk on any road, now you can only walk on the pavement, or not at all in rural areas where there are no pavements. We lost all our freedoms and why? Because cars can kill us, because might is right and won on no other grounds. But then we’re still living by the laws and property distribution that result from a defeat in 1066, so i doubt sense or justice will determine anything ever here. Nor does anyone seem to mind that we lost all our freedom. Indeed, they constantly claim that cars enable disabled people, as if mobility scooters etc weren’t better. Road traffic should have its own, separate routes, severely restricted.

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