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Cheshire West: Supreme Court lays down new ‘acid test’ for deprivation of liberty

'A gilded cage is still a cage', says Lady Hale, holding that human rights protecting individual liberty applied to all, whether able or disabled

19 March 2014

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'A gilded cage is still a cage', says Lady Hale, holding that human rights protecting individual liberty applied to all, whether able or disabled

A 39-year-old man with learning disabilities forced to live in residential care has been deprived of his liberty, the Supreme Court has ruled in the long-running Cheshire West case.

Born with cerebral palsy and Down's syndrome, P used to live with his mother until her health deteriorated and the local authority got an order from the Court of Protection for P's move into specialist accommodation.

Although he can walk short distances and even goes to the shops and to visit his mother who lives nearby, P needs assistance with most day-to-day activities and is under supervision 24 hours a day.

P's behaviour has been described as "challenging" at times, and after staff found he was eating his own continence pads, he was made to wear a full body suit.

Overturning the Court of Appeal's ruling, the Supreme Court unanimously held that P had been deprived of his liberty because he was not free to go about daily life without supervision or authorisation and that his rights under article 5 of the European Convention on Human Rights.

"I would reject the 'relative normality' approach of the Court of Appeal in the case of P, where the life which P was leading was compared with the life which another person with his disabilities might be leading", said Lady Hale in P v Cheshire West, and P and Q v Surrey County Council (otherwise known as MIG and MEG) [2014] UKSC 19.

"The whole point about human rights is their universal character," she continued. "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".

Those rights include the right to physical liberty, which Lady Hale said, was not "a right to do or to go where one pleases" but instead was "a more focussed right, not to be deprived of that physical liberty".

"What it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities," she went on.

It would be a deprivation of her own liberty, she said, if she was "obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person".

"The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage," she said.

Asking whether there was "an acid test" for deprivation of liberty cases, Lady Hale said she sympathised with Munby LJ's desire to produce one and avoid the minute examination of state-arranged living arrangements of each mentally incapacitated person.

She said judges needed to focus on particular features of each "concrete situation" and consider, as held by the Strasbourg court, whether the person concerned "was under continuous supervision and control and was not free to leave".

Agreeing with interventions by the National Autistic Society and Mind, Lady Hale said "the person's compliance or lack of objection is not relevant; the relative normality of the placement (whatever the comparison made) is not relevant; and the reason or purpose behind a particular placement is also not relevant."

Lady Hale said the original decision that "looked at overall, P is being deprived of his liberty" should be restored.

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