Deprivation of Liberty and Persons with Incapacity: The Cheshire West Ruling

Date01 January 2015
Published date01 January 2015
AuthorJill Stavert

The Supreme Court Cheshire West 1

P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another; P and Q (by their litigation friend, the Official Solicitor) v Surrey County Council [2014] UKSC 19.

ruling is a consequence of the Strasbourg HL v United Kingdom (“Bournewood”)2

HL v UK Application No 45508/99 (2004) ECHR 471.

ruling making it clear that restrictive measures informally adopted in relation to incapacitated, but apparently compliant, persons may engage article 5 of the European Convention on Human Rights (“ECHR”) (the right to liberty). In such circumstances, for a deprivation of liberty to be legitimate there must be lawful authorisation, proportionality, justification under article 5(1)(e) (allowing for detention on the basis of “unsound mind”) and the presence of legal and procedural safeguards required by articles 5(1) and 5(4).3

Such as a legal basis for the detention, proportionality, and the ability to challenge the legality of such deprivation of liberty before a court or tribunal and immediate release where the detention is found to be unlawful or no longer necessary. See Winterwerp v Netherlands (Application no 6301/73) (1979) ECHR 4 at paras 38, 39 and 55; Ashingdane v United Kingdom (Application no 8225/78)(1985) ECHR 8 at para 44; Aerts v Belgium (Application no 25357/94) (1998) ECHR 1998-V 42 at para 46; Hadzic and Suljic v Bosnia Herzegovina (Application nos 39446/06 and 33849/08) ECHR 911 at para 40; Stanev v Bulgaria (Application no 36760/06) (2012) ECHR 46 at paras 168–171; and DD v Lithuania (Application no 13469/06)(2012) ECHR 254 at paras 163–167.

Bournewood raised two issues relating to persons with incapacity who have been placed in less formal care environments outside of hospitals: first, given that the ECHR provides no definition of deprivation of liberty, the question of when a deprivation may occur in such situations; secondly, whether UK arrangements authorising the deprivation of liberty of incapacitated persons in such settings satisfy the necessary article 5 lawful authority and legal and procedural safeguards requirements.

The response in England was to introduce the now somewhat discredited4

House of Lords Select Committee on the Mental Capacity Act 2005, Report of Session 2013–2014: Mental Capacity Act 2005: post-legislative scrutiny, 13 March 2014, 91–102.

Deprivation of Liberty Safeguards by way of amendment of the Mental Capacity Act 2005.5

Ss 4A and 4B inserted by Mental Health Act 2007 ss 50(2) and 56.

The Scottish Law Commission also considered these issues in its 2012 discussion paper and addressed them in its resultant report and draft bill amending the Adults with Incapacity (Scotland) Act 2000.6

Discussion Paper on Adults with Incapacity (Scot Law Com No 156, 2012); and Report on Adults with Incapacity (Scot Law Com No 240, 2014).

The difficulty facing each jurisdiction has been that, whilst Strasbourg jurisprudential direction exists for the care and treatment of persons with mental disorder in institutional care, the European Court of Human Rights (“ECtHR”) has yet to consider article 5 in other care settings. The Cheshire West ruling therefore sheds some light on the question of what constitutes a deprivation of liberty in such environments THE FACTS

This case involved two conjoined appeals, that of P and Q¸ also known as MIG and MEG, and of P. All lacked capacity to make decisions about their care and treatment and had been placed by local authorities in care settings not dissimilar to domestic home arrangements. Each was subject to significant, but benevolent, restriction of their activities.

MIG and MEG were sisters with learning disabilities who were placed in care at the ages of 16 and 17 respectively. MIG was placed with a foster mother to whom she was devoted and referred to as “mummy”. She did not require medication, attended a further education unit daily, and was taken on trips and holidays by her foster mother. MEG was placed in an NHS residential home for learning disabled adolescents with complex needs because it had become impossible to manage her aggressive behaviour in foster care. She sometimes had to be physically restrained, received tranquilising medication, and her needs could only be met by continuous supervision and control. She...

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