Neither MIG (aged 18, in a foster placement) nor MEG (aged 17, in a small group home) was deprived of her liberty. [Caution: see Supreme Court judgment.]
The following is based on text provided by Ben Troke of Browne Jacobson Solicitors.
The case dealt with issues of contact and care, but also raised the question whether MIG and MEG were deprived of their liberty.
Mrs Justice Parker’s judgment is dated 15 April 2010, but was not published initially pending an agreed summary being prepared of the first 124 paragraphs, dealing with the background, family relationships and issues of contact, which is now available.
Paragraphs 125 onwards deal with issues of deprivation of liberty, and are permitted to be published in full.
She says that neither MIG nor MEG is deprived of liberty in their current placements for a number of reasons, which include (at paras 233-234):
There is a thorough and helpful review of the domestic and ECHR authorities as to when a deprivation occurs or not, including in hospital and care homes, as well as other contexts including control orders for terrorism, and the police crowd control case of Austin v Commissioner of Police of the Metropolis  UKHL 5.
Austin can be read to say that the intention or purpose of the police’s actions is relevant to whether those actions constitute a deprivation. Reviewing this case, Parker J emphasises that the context of the case is key – the police were maintaining public order, rather than deliberately detaining the crowd involved. She accepts that the fact it is not the detainer’s intention to deprive someone of his liberty does not mean that no deprivation occurs. Whether there is a deprivation is a different and separate question to whether that deprivation is in the person’s best interests.
Despite this recognition, the judgment is still rather ambivalent about this, and risks perpetuating some confusion among practitioners required objectively to assess whether or not a deprivation is occurring. Parker J refers at different times to “intention”, “purpose”, “motivation” and “reasons”. She concludes that benign intentions are not relevant to the issue of whether or not someone is objectively being deprived of liberty, but goes on in the same paragraph (para 230) to say that it is permissible in this case to look at the “reasons” for MIG and MEG are each living where they are.
Taken together with the judgment in Re A (Adult) and Re C (Child); A Local Authority v A  EWHC 978 (Fam) (where A and C were held not to be deprived of liberty, despite being locked in their bedrooms for 10-12 hours overnight, largely due to the context being a loving and supportive family home) this seems to continue the dangerous conflation between the question of the existence of objective deprivation and the separate issue of justification of any deprivation by reference to the person’s best interests.
It is thought that part of the reason for the relative under-use of the DOLS system, by reference to the prior estimates, is the negative connotations of the phrase “deprivation of liberty” itself, making staff reluctant to see their care in those terms.
The strong impression given in this judgment is that it would need a regime to impose restraint and restrictions on P that go above and beyond what is needed for P’s own care and best interests, before it could be considered a deprivation. That cannot be the case, at least as regards a care home or hospital, as the purpose of the MCA and DOLS in particular is to protect people who lack capacity from well intentioned intervention without due scrutiny or process, as was exactly the situation in the seminal case of Bournewood.
Without a very clear understanding that judgments like this are wholly dependant on the particular context of the family home, they are likely to add to the reluctance of care homes and hospitals to recognise deprivations in their care, the ongoing underuse of DOLS, and the perpetuation of the well meaning but unscrutinised care that the new legal framework was intended to address.
It is easy to see why the Courts would be reluctant to hold that a “deprivation of liberty” is occurring in a family home, as the term itself is so pejorative. But holding that there is no deprivation occurring, by reference to good intentions, purpose, context, proportionality or even the person’s best interests, however described, can only perpetuate the prevalent confusion that care homes and hospitals need not invoke the DOLS safeguards, and due process at all, where care is reasonable and well intentioned.
The following is an extract from Judiciary of England and Wales, 'Court of Protection Report 2010' (July 2011).
6. Surrey County Council v CA, LA, MIG and MEG(Mrs Justice Parker, 15 April 2010). This case involves two sisters, MIG who was born in 1991, and MEG, who was born in 1992. Both have learning disabilities and both lack the capacity to make decisions on residence and care, contact, education, medical treatment, and legal issues. Until April 2007 they were living with their mother CA, and their stepfather, LA. On three occasions they were placed on the Child Protection Register for non-accidental injuries. In April 2007 they were made subject to interim care orders brought by Surrey County Council, and were removed from the family home. MIG lives with a foster mother. MEG is in a residential care home, and receives medication (Risperidone). In January 2009 their stepfather, LA, was convicted of seven counts of rape relating to their elder half sister, HG, and sentenced to 14 years’ imprisonment. CA was convicted on one count of indecent assault on HG, and was sentenced to 9 months’ imprisonment. She was released at the end of May 2009.
On the question of residence with CA, the judge held that “notwithstanding that MIG and MEG have lived for all their adult lives with their mother, the threshold has been passed where intervention is not only justified but essential for their protection and welfare, and that there are real and substantial risks if they were to return to her care” (paragraph 70).
On the question of contact, the judge held that:
On the question of deprivation of liberty (which was alleged by counsel for MIG and MEG), the judge held that:
In the first case of MIG and MEG, Mrs Justice Parker (MJP) gave the initial judgment in 2010. The Official Solicitor appealed and the Court of Appeal has now given judgment. Both MJP and the Court of Appeal found that there was no deprivation of liberty for either girl. MIG was living in a foster home, where she was very happy. MEG lived in a small specialist unit with 3 other residents. Both girls had their own room. Neither made any attempt to leave though both would have been restrained had they tried to do so. Both attended a unit of further education. MEG was being given Risperidone to control her anxiety. Both girls lacked capacity and were capable of making only the most trivial decisions of day to day life. Both were allowed contact with family and each other. MEG had some social life. MIG had very little but was taken on trips by her foster mother.
MJP gave a thorough analysis of Strasbourg cases on deprivation of liberty.
She also looked at 2 recent House of Lords cases. In one of these, Austin v Commissioner of Metropolitan Police, two members of the House of Lords considers the purpose of the restriction was relevant. MJP felt the context of police cordons and demonstrators was very different, and therefore the reference to “purpose” must be treated with caution, but did consider that the purpose of restrictions should be put into the equation when considering the factual matrix. In this case, she held it was important to consider the reasons why both girls were under continuous supervision and control. She cited Baroness Hale in the case of Secretary of State for the Home Dept v JJ & others about control orders, “Restrictions designed for the benefit of the person concerned are less likely to be considered a deprivation of liberty than those designed for the benefit of society.”
Surrey CC v CA
Re MIG (Incapacitated Adult) and MEG (Incapacitated Minor), Surrey County Council v CA