Re P and Q; P and Q v Surrey County Council; sub nom Re MIG and MEG  EWCA Civ 190
Judgment of Parker J upheld: neither P (aged 18, in a foster placement) nor Q (aged 17, in a small group home) was deprived of her liberty. [Caution: see Supreme Court decision.]
Summary and comment
The following is based on text provided by Ben Troke of Browne Jacobson Solicitors.
The controversy following Parker J’s initial judgment (Re MIG and MEG  EWHC 785 (Fam), 15/4/10) was because her reasoning in holding that P and Q were not deprived of liberty included references to the “intention”, “purpose”, “motivation” and “reasons” for the care arrangements. Parker J herself accepted that good intentions are not relevant to the issue of whether or not someone is objectively being deprived of liberty, but went on in the same paragraph (para 230) to say that it was permissible in this case to look at the “reasons” for MIG and MEG living where they were.
Many practitioners thought that this confused the fundamental distinction between whether an objective deprivation of liberty existed, and the secondary question of whether it could be justified and lawful as being in P’s best interests. This could undermine appropriate use of procedural protection for P, including the Deprivation of Liberty Safeguards in care homes and hospitals, by encouraging carers to say that their good intentions / purpose / reasons meant that there was no deprivation occurring.
The facts were:
- P and Q are sisters, now aged 18 and 19 respectively, who have substantial and permanent learning disabilities.
- They lack capacity to make decisions about their care and where they live.
- P and Q were removed from the family home in 2007.
- P was moved to a family home with a devoted foster mother, had her own bedroom and she never attempted to leave home, but would have been restrained if she did try to do so.
- Q was one of four residents at a specialist residential home, which was not registered as a care home. She had her own bedroom, she occasionally suffered from outbursts and sometimes required physical restraint. Q showed no wish to leave. Q was on medication to control her anxiety.
The Court of Appeal (Wilson, Smith and Mummery LJJ) agreed that neither P nor Q were being deprived of their liberty, but took a significantly different approach to the reasons for this. Lord Justice Wilson’s leading judgment reviewed the factors that are relevant (or not) when considering whether there is an objective deprivation of liberty:
- A person’s happiness is not relevant to whether he is being deprived of his liberty (para 24).
- However, it is relevant to consider if a person objects to the confinement, because this is likely to lead to conflict and confrontation (para 25).
- Use of medication is relevant, especially it may suppress a person’s ability to express his wishes, and all the more if forced on the person (para 26).
- It was, however, inappropriate to take into account that the “purpose” of the care package was to further the person's best interests, and Wilson LJ would “dissociate himself from the terminology of that passage” in which Parker J had referred to the “reasons” for the living arrangements as relevant (para 27).
- On the other hand, the “relative normality” of the arrangements was very important to Wilson LJ: “If the person is living with her parents, or other members of their natural family in their home, they are living – in that respect - the most normal life possible. Typically - but sadly not always - there will be no deprivation of liberty in such circumstances” (para 28).
Note that this list is not exhaustive, but simply reviews the factors that had been taken into account by Parker J in this case.
Q’s case was closer to the “border” of deprivation of liberty (because she was not in a family home, was medicated and subject to occasional physical restraint), but on balance neither P nor Q were deprived of her liberty. It was significant that they both had good outside social contact and went out for trips and for education, giving them something like a “normal” daily balance between education and home.
Mummery LJ was “very attracted” by the idea that the local authority’s intervention with P and Q was to “rescue” them from “an abusive and neglectful environment”, and therefore enhanced their lives and could not be regarded as a deprivation of liberty, but he accepted that this was a dangerous approach as “it risks confusing matters which affect whether a deprivation of liberty is lawful with whether it exists at all” (something that, perhaps, could have been said of Parker J’s approach to the relevance of reasons and purpose). Lady Justice Smith’s judgment explicitly rejects any such relativist approach – i.e. a deprivation may exist regardless of whether or not P’s situation is better than it had been previously. Wilson LJ raised the issue but did not venture an opinion. Strictly speaking the rejection of this approach is obiter (ie outside the core of the Court’s reasoning).
The main development in this case is the move from “purpose” and “reasons” (per Parker J) to an emphasis on issue of the “relative normality” of the placement (per Wilson LJ). This is a step in the right direction, avoiding some of the problems persuading people that there can be a deprivation of liberty despite their good intentions, and that the DOLS or Court of Protection process should be invoked where appropriate.
However, the idea that a care regime in the family home which allows “the most normal life possible” will usually not be a deprivation of liberty, may yet prove to be just as problematic. This case was in the context of a family home or small (unregistered) residential home – i.e. outside the hospitals and (registered) care homes where the Deprivation of Liberty Safeguards would apply – but it is foreseeable that it will be argued that a care regime in a care home or hospital which allows P “the most normal life possible” should not, therefore, be deemed a deprivation. And what do we mean by normal anyway? Normal for P him/herself? Normal for people with P’s disability? Or normal arrangements for people in the particular care home / other environment in question?
The Court of Appeal has offered some useful guidance on what is not relevant (the purpose / reasons for the deprivation, whether P is happy there, and whether P’s situation is an improvement), but we may still be some distance away from a full understanding of the objective deprivation of liberty element. Leave has been given to appeal to the Supreme Court, but perhaps case law considering the position in a care home or hospital may be more likely to assist, where the Court will not be influenced by the understandable wish not to find a “deprivation of liberty” (with all the pejorative connotations) occurring in the family home.
Leave has been given to appeal to the Supreme Court, but we wonder if case law considering the position in a care home or hospital may be more likely to assist, where the court will not be influenced by the understandable wish not to find a deprivation of liberty (with all the pejorative connotations) occurring in the family home.
Dept of Health summary
The Court of Appeal set out that the European Court of Human Rights had made clear that a deprivation of liberty has three elements:
- “The objective element of confinement to a certain limited place for a not negligible length of time”: Storck v Germany (2005) 43 EHRR 96 at 
- the “additional subjective element [that] they have not validly consented to the confinement in question” the Storck case, also at 
- the confinement must be “imputable to the State”: the Storck case, at ” i.e a public authority is directly involved.
"Lord Justice Wilson considered whether the fact that MIG and MEG (now referred to as P and Q) were happy in their care environments was relevant to whether they were deprived of liberty. In Mrs J Parker's view, happiness in their placements was relevant to her consideration of the objective element. This was reconsidered by the Court of Appeal which held that happiness in their care environment was not relevant to whether a person was deprived of liberty. However, Lord Justice Wilson felt that happiness was relevant to whether the deprivation of liberty was in their best interests, as a person can only be lawfully deprived of their liberty if it is in their best interests.
Lord J Wilson then considered if the fact that a person, whether with capacity or not, objected, can also be relevant to the objective test. He argued that where a person was objecting, it could lead to conflict, and possibly physical restraint as in the case of Storck v Germany (2005) 43 EHRR 96. In his view, the presence or absence of an objection is therefore very relevant to whether there is an objective deprivation of liberty."
Similarly, Lord J Wilson considered that medication can be relevant. If a person is being given medication, particularly tranquilisers, it is a pointer to the existence of the objective element, because it suppresses the patient’s liberty to express themselves. Even more so, if medication is forcibly given. Similarly, the absence of medication points the other way.
MJP had said she felt it was permissible to look at the reasons why they lived as they did. She found that the principal reason they were where they were was to give them a home and so they could receive care. It was not so they could be treated or managed. Lord J Wilson felt it was wrong to look at the purpose of the arrangements. However, he felt Mrs J Parker was “by implication stressing the relative normality of the living arrangements under scrutiny”. He felt that persons living at home will not normally be deprived of their liberty. A foster home or a carer’s home was not much less normal. Lord Justice Wilson states that “even when the person lives in an institution rather than in a family home, there is a wide spectrum between the small children’s home or nursing home, on the one hand, and a hospital designed for compulsory detentions like Bournewood; and it is in my view necessary to place each case along it.”
Other factors that he felt should also be considered were whether the person went out every day – to college or a day centre, or to pursue some kind of occupation, and whether there were restrictions on their social contacts. Looking at all these factors, Lord J Wilson held that there was clearly no deprivation of liberty for P, and slightly less clearly, there was no deprivation of liberty for Q. In dismissing the appeal he said that the main factors which kept Q’s case the right side of the line were “The small size of the home for adolescents in which she lived; her lack of objection to life there; her attendance at the educational unit; her good contact with such members of her family as were significant for her; and her other, fairly active, social life:”
This view was supported by the other 2 appeal court judges.
An important distinction appears to be emerging in these judgments that people living in their own homes or tenancies, care homes or in “acute” hospitals will, whilst being restrained in their best interests, typically not be deprived of their liberty as those “normal” regimes will typically not achieve that threshold in delivering the treatment or care to which they are unable to consent. If however, their family or carers are indicating that they do not want the person to be there and more importantly, if the person himself is indicating that he doesn’t wish to be there, then the question of their confinement arises and the question of deprivation of liberty is now engaged. Other factors to consider are the use of medication, social contact, and whether the person goes out of the home regularly to college, day centre or place of occupation.
Mental health settings are different. As Lord Justice Wilson notes they are designed for compulsory detentions (under the Mental Health Act). If they are to admit and treat those lacking the capacity to consent to being there outside of the Mental Health Act they face a different challenge. They will need to demonstrate that the regime for those not detained under the Mental Health Act (MHA) is distinct and different to the regime for those detained under the MHA. Otherwise, a person who lacks capacity to consent for himself, even when they are not objecting (unlike those settings where there is a relative normality to the living arrangements) is likely to be deprived of his liberty by simply being in that setting. The Deprivation of Liberty Safeguards will need to be applied in those circumstances even when the person is not objecting if the deprivation of liberty in their best interests is to be made lawful.
12/03/13: The Supreme Court Registry has confirmed that this case will be heard on 22/10/13 to 24/10/13. This case and Cheshire West and Chester Council v P  EWCA Civ 1257 were jointly given permission to appeal.
Before: Mummery, Smith, Wilson LJJ
Mr Richard Gordon QC and Miss Fenella Morris (instructed by Steel and Shamash, London SE1) appeared for the Appellants.
Ms Barbara Hewson (instructed by its Legal and Insurance Services) appeared for the First Respondent.
The Second and Third Respondents took no part.
Mr Paul Bowen (instructed by Ms Glynis Craig of the Intervener) made written submissions on behalf of the Intervener but, in accordance with the terms of its Intervention, did not appear at the hearing.
Surrey CC v CA
Browne Jacobson, 'What is a deprivation of liberty? The impact of MIG & MEG (P & Q)' (25/3/11). The text above is based on this article (kindly uploaded by the author).