gavelThe Supreme Court’s decision in 2 cases involving people with learning disabilities has been welcomed by charities for clarifying how to determine whether care arrangements for a person who lacks capacity to decide where to live amount to a ‘deprivation of liberty’.

The Supreme Court’s ruling in the cases of P v Cheshire West and Chester Council and P and Q v Surrey County Council that both had been deprived of their liberty are of great importance for the protection of people with mental health problems, learning disabilities and autism who are subject to the Mental Capacity Act (MCA) and Deprivation of Liberty Safeguards (DoLS), according to Mind and the National Autistic Society (NAS). 

In the case of P v Cheshire West and Chester Council, P has cerebral palsy and Down’s syndrome and requires 24 hour care. Until he was 37 he lived with his mother but when her health deteriorated the local social services obtained orders from the Court of Protection that it was in P’s best interests to live in accommodation arranged by the authority. 

Since November 2009 P has 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 is sometimes required when he exhibits challenging behaviour. The judge 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.

Meanwhile, P and Q are sisters with learning disabilities who became the subject of care proceedings in 2007 when they were respectively 16 and 15. P 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. Q 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.

In both cases, the question for the Supreme Court was whether the living arrangements for each was a deprivation of liberty. Under the MCA, a deprivation of liberty must be authorised by local authorities using DoLS procedures for care homes and hospitals, or the Court of Protection in other settings. Consideration must be given to whether the care arrangements are in the person's best interests and done in a way that is least restrictive of their freedom.

Previously the Court of Appeal decided that none of the appellants were deprived of their liberty because of the ‘relative normality’ of their lives compared either with their previous circumstances or with others with disabilities. In other words, the starting point for deciding whether they were being deprived of their liberty was the fact that their freedom was already inherently restricted by the nature of their disabilities.

There were 7 justices presiding in this case, rather than the usual 5, which highlights the seriousness of the case. The justices were: Lord Neuberger (president), Lady Hale (deputy president), Lord Kerr, Lord Clarke, Lord Sumption, Lord Carnwath and Lord Hodge. They decided to overturn the Court of Appeal's approach.  

In her judgment, Lady Hale outlined specific criteria that define when a person is deprived of their liberty: if they are not free to leave and if they are under continuous supervision and control. Lady Hale also listed three criteria that are categorically not relevant to the assessment: the 'relative normality' of a person's circumstances; the reasons or motives behind the circumstances; and whether or not the person objects to the living arrangements.

This judgment follows a report last week from a House of Lords Select Committee, which concluded that the MCA is failing and called for DoLS to be replaced with provisions that are easier to understand and implement.

“Landmark judgement”

Mind and the NAS welcomed the judgement. Paul Farmer, chief executive of Mind, said: “This judgment provides much-needed clarity on a hugely complicated issue. We know that there is widespread confusion about deprivation of liberty, leaving thousands of people with mental health problems and learning disabilities at risk of having their basic rights violated. We now have a test that can ensure deprivation of liberty is assessed in a fair and consistent way, which will help give people the proper safeguards when they are at their most vulnerable.

“This judgment is so important because it recognises the fundamental principle in the United Nations Convention on the Rights of Persons with Disabilities that people with mental or physical disabilities have exactly the same rights as everyone else. Previous judgments have been clouded by other issues, such as whether the person objected to their circumstances or whether they would have had much freedom in any case, given their circumstances. Lady Hale's judgment rightly recognises that these things are irrelevant and that we all have the same basic rights as each other, regardless of individual circumstances.

“In light of this important ruling, we need now to see clear guidance from government for those involved in the care of people under the Mental Capacity Act and for families and people who lack capacity, so that everyone can be sure that the right test will be applied and policies and practices will be updated in light of the judgment.”

Mark Lever, chief executive of the NAS, said: "Today's ruling is a victory for the rights of vulnerable people. This landmark judgment makes it clear that people with autism have the same rights as anyone else: what counts as a deprivation of liberty is the same for anyone, regardless of whether they have a disability or mental health problems. 

“Legal safeguards were rightly set up several years ago to ensure that people who lack capacity are only deprived of their liberty when it is in their best interests and all less restrictive options have been explored. However, the system established to do this is bewilderingly complex. The current safeguards are underused, leaving the rights of many vulnerable people at risk. 

“Today's judgment marks an important step to address this. We now have an acid test from the highest court in the land clarifying what counts as a deprivation of liberty. We call on the government to urgently issue clear guidance to care providers and local authorities so that they can implement this judgment.”