Where deprivation of liberty is concerned, says David Hewitt, there is an alternative to the subjective approach
There is a significant problem with the Deprivation of Liberty Safeguards. They apply where someone who lacks capacity to decide where to live is deprived of liberty. What that means has been considered by the Court of Appeal and will eventually be considered by the Supreme Court. The position remains confused, however, and it can also be decidedly inequitable (Cheshire West and Chester Council v P [2011] EWCA Civ 1257).
The court said that in deciding whether someone is deprived of liberty, one must consider the "relative normality" of the situation (per Munby LJ, at [102]). Though this, admittedly, necessitates the use of a comparator, the court's way of identifying that person has met with criticism.
Lord Justice Munby said that in a case concerning an adult with disabilities, the comparator is not "the able-bodied man or woman on the Clapham omnibus"; it is someone of the same age as the person in question, with the same capabilities and &...
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