P's care plan at Z House did not amount to a deprivation of liberty: "At Z House and outside it P is living a life which is as normal as it can be for someone in his situation." [Caution: see Supreme Court decision.]
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
HUMAN RIGHTS — Right to liberty and security of person — Severely disabled man subject to restraints to prevent self-harm — Whether restraints constituting deprivation of liberty — Whether entitled to periodic review by court — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 5(4)
Cheshire West and Chester Council v P (by his litigation friend the Official Solicitor)
;  WLR (D) 325
CA: Pill, Lloyd, Munby LJJ: 9 November 2011
In determining whether or not there was a deprivation of liberty, it was legitimate to have regard both the objective “reason” why someone was placed and treated as they were and also the objective “purpose” or “aim” of the placement. For adults with disabilities, whose lives were dictated by their own cognitive and other limitations, the question whether they had been deprived of liberty fell to be determined by comparing their situation with that of an adult of similar age with the same capabilities, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations.
The Court of Appeal so held when allowing an appeal by the local authority, Cheshire West and Chester Council, from a decision of Baker J on 4 April 2011,that the care plan for P, a 39-year-old man with cerebral palsy and Down’s syndrome, involved a deprivation of liberty for the purposes of article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.
MUNBY LJ said P was incontinent and had developed a habit of tearing pieces off his continence pad and ingesting them. His carers had tried to intervene by getting him to open his mouth and putting in their fingers to try and sweep out the ingested material. Latterly, to prevent him from accessing the pad he had been placed in an all-body suit like a Babygrow which he could not open from the front. His Lordship reviewed in detail the Strasbourg and domestic jurisprudence relating to article 5. It could not be right, he said, that the decision in the particular case could only be arrived at after a minute examination of all the facts in enormous detail. The issue was to find a relevant comparator. His Lordship suspected that the unspoken assumption most of the time was the ordinary adult enjoying “liberty to do those things which in this country free men were entitled to do: Jones v Cunningham (1963) 371 US 236, 243. This was the appropriate comparator in many, perhaps most cases, but not in the kind of cases coming before the Court of Protection. It was legitimate to have regard both to the objective “reason” why someone was placed and treated as they were and also to the objective “purpose” (or “aim”) of the placement. A good motive or intention could not render innocuous what would otherwise be a deprivation of liberty. Some people were inherently restricted by their circumstances and the “normality” with which the court was concerned in their case was the normality of someone with the relevant condition, not the normality of the life of able-bodied man or woman on the Clapham omnibus. P was not being deprived of his liberty. He was living a life which was as normal as it could be for someone in his situation.
LLOYD LJ delivered a concurring judgment and PILL LJ agreed.
Appearances: Jenni Richards QC and Neil Allen (instructed by Legal Services Department, Cheshire Wast and Chester Council) for the local authority; Richard Gordon QC and Simon Burrows (O’Donnells on behalf of the Official Solicitor) for P.
Reported by: John Spencer, Barrister
© 2011. The Incorporated Council of Law Reporting for England and Wales.
The following is based on text provided by Ben Troke of Browne Jacobson Solicitors.
“Deprivation of Liberty” has always been a slippery concept, in a health and social care setting, but with huge risks if you get it wrong. A deprivation of liberty without lawful justification, and due legal process for scrutiny, would be a breach of the person’s rights under Article 5 of the European Convention, with all the adverse consequences of possible liability in damages, or punishment in legal costs and, increasingly, very public criticism in court and the media, especially in the cases of public authorities which fall foul of this.
The Court of Appeal Judgment in P v Cheshire West and Chester Council (9 November 2011) has turned this upside down.
P was a 39 year old man with learning disabilities and autism, who lacked capacity to make decisions about his accommodation and care. In April 2011 a judge held that he was deprived of his liberty in his local authority placement at Z House, as staff had complete and effective control of his life, sometimes using a “body suit” zipped at the back to prevent him getting to his continence pads, which he had a habit of eating.
The Court of Appeal says, in essence, that this care was required as a result of his condition, was “normal” for people like him, and therefore no deprivation.
Lord Justice Munby’s thorough review of the case law revisits two key issues – “purpose”, and “normality”, which the court also wrestled with in the case of “MIG and MEG” (known as “P and Q” in the Court of Appeal).
He accepts that subjective good intentions do not render innocuous a situation that would otherwise be a deprivation of liberty (though he does think that acting in bad faith could turn a situation into a deprivation of liberty) (para 71). He distinguishes this from the objective issue of the aim of the restrictions, put in terms of the "purpose" or "reasons", which he says must be relevant to whether or not a situation is a deprivation of liberty (para 75-76). This may seem a fine distinction, but its real significance is clear when Lord Justice Munby goes on to look at the context and "normality" of the placement.
He said the key is to assess the “relative normality” of P’s life, taking into account the particular care needs arising simply from his physical or mental condition. It is not appropriate to compare P with a healthy adult, who would clearly be deprived of his liberty in these circumstances. “Some adults are inherently restricted by their circumstances”, and the court of protection is dealing with adults “with significant physical and learning disabilities whose lives are dictated by their own cognitive and other limitations”. The appropriate contrast to draw is with “the kind of lives that people like [P] would normally expect to lead” (paras 86, 97 and 102), In this case, the first instance judge failed to see that the restrictions and limits on his life at Z house were nothing more than "the inevitable corollary of his various disabilities" (para 110), and “there was nothing to show the life he is living at Z House is significantly different from the kind of life that anyone with his concatenation of difficulties could normally expect to lead…." The reality is that P was "living a life which is as normal as it can be for someone in his situation", and therefore he was not being deprived of his liberty (para 110, 116).
This is hugely significant, and seems to raise a number of issues which the courts will have to continue to clarify over the next few years:-
1. Since the introduction of the Deprivation of Liberty Safeguards (DOLS), massive effort has been spent on education that a "deprivation of liberty" is not necessarily a bad thing, or inappropriate, but simply requires scrutiny and lawful authorisation (whether through DOLS in a care home or hospital, or the court of protection in other circumstances). Anecdotally, one of the reasons given for apparent underuse of DOLS is that professional staff understandably find “deprivation” a pejorative term, and are reluctant to recognise it in the care provided which is, usually, assessed in good-faith to meet the needs of P’s physical and mental condition. Lord Munby’s judgement, perhaps, shows that they have been right all along.
2. If it is right that restrictions imposed simply to meet the needs of P’s condition are by definition not a deprivation of liberty, it becomes difficult to imagine a situation that would be a deprivation that could nevertheless be lawful (whether by DOLS authorisation or by court of protection order) as being in P’s best interests, necessary and proportionate, and the least restrictive option. It would seem that all the conditions that are required to make any deprivation lawful will, in effect, mean in most cases that there is no deprivation at all. Education and training that has emphasised the need to separate the primary question of whether there is a deprivation of liberty from the secondary question of lawful justification may now to be revised.
3. As with the health and social care system as a whole, the issue of choice is paramount. If there is no realistic alternative to his current placement and circumstances, then it seems there is no deprivation of liberty (para 58). Taken together with the recent high-profile case of Neary vs Hillingdon, it seems most likely that a deprivation of liberty will occur where a family and a public body offer competing proposals for care, and in particular where the state tries to assert some control over what would otherwise be family life, protected by article 8 as much as article 5.
4. If that is the case, we may wonder if there is a discriminatory effect against those vulnerable people, lacking capacity, who do not have family offering alternative proposals, who may therefore be deemed not deprived of liberty, and will not have the benefit of any scrutiny of their care, either through DOLS or the court. The experience of recent scandals and reports about care of the most vulnerable in society might encourage a public view that more procedural scrutiny and safeguards are required, rather than less. Equally, there may be those who find the language of judging X’s care according to the life expected by "people like X” (para 102) a little uncomfortable, in the context of trends towards individual care and personalisation.
5. The deprivation of liberty safeguards were introduced because the European Court of Human Rights found that HL was deprived of his liberty at a mental hospital where he was detained as an informal patient, for which the common law doctrine of “necessity” was insufficient justification or safeguard. Lord Justice Munby observes that this is a far cry from cases in which someone is in a family or foster home, or small residential unit. However, the hospital in that case was simply doing what it judged was in HL's best interests, as required by his physical and mental condition. That his foster carers wanted to bring him home seems to be the only feature that would establish there was a deprivation of liberty in his case, following Chester.
6. In the absence of family, or others, pressing for an alternative, the reasoning in Chester seems to risk going full circle - back to before HL and DOLS - re-establishing deference to a professional assessment, with any restrictions put in place in good faith according to the physical and mental health needs being deemed not to be a deprivation of liberty, without significant scrutiny and perhaps not so very far, in practice, from the old common law idea of "necessity".
Strictly speaking, there may be no need to bring cases to the court if it is not felt, or disputed, that there might be a deprivation but we tentatively suggest it would be prudent to continue to seek confirmation from the court where there is any doubt. Lord Justice Munby hints at this when he says that many cases coming to court will be fairly obviously no deprivation - for example “if someone is being cared for by their parents, friends or relatives in a family home …or in a foster placement or its adult equivalent in small specialist sheltered accommodation” (para 103) - and the court will be able to deal with most cases of this type "fairly but at the same time simply and quickly… on the basis that there is no deprivation of liberty" (para 104).
This would certainly ease the pressure a little on public authorities, the official solicitor and the court, who are all currently snowed under with applications, particularly in the wake of Neary, but it remains to be seen whether the notions of "purpose" and particularly "normality" in turn raise more questions than answers.
Before: Pill, Lloyd, Munby LLJ
Ms Jenni Richards QC and Mr Neil Allen (instructed by Legal Services Department, Cheshire West and Chester Council) for the Appellant
Mr Richard Gordon QC and Mr Simon Burrows (instructed by O'Donnells on behalf of the Official Solicitor) for the Respondent
 All ER (D) 150 (Nov)
Morgan Cole Solicitors, 'Deprivation of Liberty case update' (January 2012). The 'Action required' conclusion of this briefing states: 'The guidance contained in this judgment should be disseminated to those who work with patients and service users who lack capacity and are responsible for care planning. The case clarifies that where there is no evidence to show that an individual’s living arrangements in a hospital or care home are significantly different from the kind of life that anyone with their disability could normally expect wherever and in whatever setting they were living, the provision of their care and treatment will not, of itself, amount to a deprivation of liberty.'
John O'Donnell, 'Cheshire West and Chester Council v P' (commentary) (O'Donnells Solicitors information sheet, January 2012, no 2). This article is critical of recent case law on what constitutes a deprivation of liberty.
David Hewitt, 'Purpose alone can no longer determine if there is a deprivation of liberty' (Solicitors Journal, 16/4/12). This article argues that the reference in the Court of Appeal decision in Cheshire West to 'purpose' as being relevant to the objective element of deprivation of liberty is not supported by the subsequent ECtHR decision in Austin. This article was first published in Solicitors Journal on 17/4/12 and is reproduced by kind permission.
David Hewitt, 'Deprivation of liberty can never be "normal"' (Solicitors Journal, 21/5/12). Another article critical of the Court of Appeal's decision in Cheshire West.
O'Donnells Solicitors, 'Latest news: Cheshire West' (May 2012, no 1) and O'Donnells Solicitors, 'Cheshire West Latest' (May 2012, no 3). The Supreme Court is expected to decide on leave to appeal in the Cheshire West and P & Q cases by the end of June 2012.
O'Donnells Solicitors, 'Cheshire West & Chester Council -v- P & M' (11/7/12). The Supreme Court has given leave to appeal the decisions in Cheshire West and P & Q.