The Supreme Court to consider the meaning of deprivation of liberty

In the hearing on 21 October to 23 October in the conjoined cases of P (by his litigation friend the Official Solicitor) (FC) (Appellant) v Cheshire West and Chester Council (Respondent) and P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent), 17 Counsel were there to represent the Appellants, the Respondents and the interveners. The first case concerns a man in his forties with severe physical and learning disabilities and the second case two sisters both of whom suffer severe mental impairment. The seven Justices tested the legal positions of the parties. They were also interested in the likely practical and resource implications of each position. 

Article 5 of the European Convention of Human Rights gives important rights to ensure that if a person "of unsound mind" is deprived of their liberty that that is done lawfully and that any detention which occurs can be reviewed. The Supreme Court has been asked to consider what constitutes a "deprivation of liberty".

The Appellants and the interveners argued that a person is deprived of their liberty if they are "not free to leave" their care regime. This test appeared simple and capable of universal application. Parties debated whether it would mean that every placement in a social care regime of a person who lacks mental capacity to make decisions about residence and care would amount to a deprivation of liberty. Each side tendered some statistics about likely impact.

The Respondents' position was that the Strasbourg case law requires careful consideration of a person's individual circumstances, including the type, duration, effects and manner of implementation of measures which they are subject to, to determine whether or not there is a deprivation of liberty. The disadvantage of that position seems to be that it is difficult to derive principles or anything more than general guidance from the case law. That makes it more difficult in practice to determine whether there is a deprivation of liberty. It also was a matter of debate what this position means for the scope of the liberty of those who have disabilities or lack capacity or both. Does "liberty" mean the same for people with and without disabilities?

During the course of the hearing, several Counsel referred to the Discussion Paper on Adults with Incapacity by the Scottish Law Commission. At the end of the first day of the hearing Lord Carnwath asked whether it was known what the responses to the Discussion Paper were. Counsel for the Respondents, Jenni Richards QC, who was addressing the Court at the time, mentioned that the Scottish Law Commission team were in Court to follow the hearing. Fortunately, they were not called upon to speak…

Like many other people we hope that the Court will clarify further what deprivation of liberty in the European Convention means.

See law reform project page on Adults with Incapacity.