What Is Deprivation Of Liberty? The Supreme Court Speaks

• Published date: 24 May 2023
• Subject Matter: Government, Public Sector, Litigation, Mediation & Arbitration, Food, Drugs, Healthcare, Life Sciences, Trials & Appeals & Compensation, Human Rights
• Law Firm: Weightmans
• Author: Simon Cheverst

We summarise key Supreme Court cases which gave insight into how the concept of deprivation of liberty should be defined.

The Supreme Court overturned the Court of Appeal in the cases of P (by the Official Solicitor) v Cheshire West and Chester Council, and P & Q (or MIG & MEG)(by the official Solicitor) v Surrey County Council [2014] UKSC 19. In what is the most far-reaching human rights case heard in the UK for some time, the Supreme Court reversed the Cheshire West decision by 7 Justices to 0, and the Surrey decision by 4 to 3.

The cases rested on what is the proper test to be applied to determine where there is a deprivation of liberty when mentally incapacitated people are required to live in a place when they could not (and therefore did not) consent. These places could be hospitals or care homes, but in the three appeals before the Supreme Court, they were an independent supported living placement, a unit for learning disabled young people and a foster home. If they are deprived of their liberty, Article 5 of the European Convention is engaged and protections including periodic reviews of their detention are triggered. Their detention must be authorised and reviewed by the Court of Protection. Where the statutory scheme applies, in hospitals and care homes, detained residents fall within the so-called DOLS (deprivation of liberty safeguards), which is an administrative procedure whereby people may be detained without the authority of a court (albeit with the right of appeal to one).

The court had to decide whether the "test" to be applied should include factors such as "the relative normality" of the surroundings in which the person is placed (the more "normal" the less it was likely to involve deprivation of liberty); whether the person (or their relatives or carers) objects to the placement (if they do not it is less likely to involve deprivation of liberty); whether a person with comparable disabilities would be expected to live in a less restricted environment (if so, it is more likely to be a deprivation); whether the reason or purpose for the placement is a relevant factor (if the measure is an appropriate way of achieving the best for the person, the less it is likely to amount to a deprivation). These were factors that the Court of Appeal had suggested were relevant.

The majority of the Supreme Court rejected these factors as part of the test. Lady Hale (with whom Lords Neuberger, Kerr and Sumption agreed) emphasised the universality of...