The Landmark 19th of March 2014 Supreme Court judgement: The judgement and how do we see Deprivation of Liberty now?
An overview of the 19th of March 2014 Supreme Court judgement and the effects that this judgement is continuing to have on the care of people subject to ‘Deprivation of Liberty Safeguards’.
Dr Harinder Bains (UK)
The Deprivation of Liberty Safeguards were introduced in the Mental Capacity Act 2005 by the 2007 amendment to the Mental Health Act 1983. Since then there has remained considerable uncertainty around what constitutes ‘deprivation of liberty’. This has led to a varying degree of subjectivity on how this has been applied in practice. The 19th of March 2014 Supreme Court judgement has provided a more objective definition of what constitutes ‘Deprivation of Liberty’. This article is an overview of the judgement and the effects that this judgement is continuing to have on the care of people subject to ‘Deprivation of Liberty Safeguards’.
The 19th March 2014 Supreme Court judgement in the case of P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents) and P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent)  UKSC 19 considered the criteria for determining whether the living arrangements made for a person who lacks capacity to make such decisions, amounted to a deprivation of liberty under the European Convention on Human Rights (Article 5 of European convention on Human Rights, 1950). This article looks at analysing this judgement along with the likely implications. The article briefly considers the history of how the ‘deprivation of liberty’ safeguards have evolved in the European context and in the United Kingdom, and then describes the judgement. It goes on to discuss and analyse certain aspects of the judgement and the clinical impact it has had.
The History of Deprivation of Liberty Safeguards
The Deprivation of Liberty Safeguards were introduced to the United Kingdom as a result of the decision of the European Court of Human Rights (ECtHR) in HL v United Kingdom App no 45508/99 (2005) 40 EHRR 32 (also called ‘Bournewood’ based on the title of proceedings in prior domestic litigation).
HL was a man who lived with foster carers and suffered severe autism and learning disability. He could not communicate verbally but could make his needs known to those who knew him. As with most people with autism, structure, routine and predictability were important to him. However, on the day in question, he did not have his usual driver for his day centre visit. The driver went a different route, picked up different people, and HL became increasingly upset. By the time he reached the day centre, he was frustrated and angry, was harming himself and hitting out at other people. The day centre staff rang for specialist advice and were advised to admit him to hospital immediately, where he was detained for his own safety. When his foster parents visited him, he became upset and wanted to go home with them. However, this increased his ‘harmful behaviour’ and the doctor asked them not to visit any more, saying that it was in his best interests not to see them. They started a legal campaign and, after five months, HL went home. They then took the case to court, arguing that he had been illegally detained. The issue in domestic litigation was whether individuals such as HL, who lack capacity and agree to admission, could be admitted informally and remain in hospital under these circumstances or whether they had to be detained formally under provisions of the Mental Health Act 1983.The Court of Appeal ruled that HL had been illegally detained, but the House of Lords reversed this decision. The issue subsequently brought before the ECtHR was whether these conditions engaged the right to liberty under Article 5 of the European Convention for Human Rights (ECHR). Article 5(1) provides that no-one will be ‘deprived of liberty’ except in specified situations and in accordance with a procedure prescribed by law. Eventually, after seven years and hundreds of thousands of pounds in costs, the European Court of Human Rights ruled that HL had been illegally deprived of his liberty, in contravention of Article 5 of the European Convention on Human Rights, and so the Mental Capacity Act Deprivation of Liberty Safeguards (DOLS) were born (HL Deb (2014-15) 760 col 983).
Prior to this there was no formal legal structure controlling the admission of people without capacity to care homes or hospitals on an informal basis. There were no formal constraints on the care of people lacking capacity outside institutional settings such as in private homes. The law of wrongful confinement existed but, as domestic litigation in Bournewood showed, it had not been applied in the context of people lacking capacity (Bartlett and Sandland, 2013, p. 203).
It is interesting that while the ECHR took effect in 1953, it is not until 1979 that the first case involving person with disorder of the mind was decided by the ECtHR in Strasbourg (Bartlett and Sandland, 2013, p. 205). The initial case of Winterwerp v the Netherlands App No.6301/73, 1979, EHRR 387 continued to provide the basic structure on interpreting Article 5 in the context of disability of the mind. Winterwerp took the approach that continued deprivation of liberty would only be justified if a mental disorder of sufficient severity continued to exist.
In HL v UK, the European court found a lack of fixed procedures by which the admission and detention of compliant incapacitated individuals was conducted. It noted a lack of formalised procedures around admission. The decision was successful at requiring the United Kingdom government to produce a process of regulating deprivation of liberty for compliant incapacitated people (Bartlett and Sandland, 2013, p. 203) and Deprivation of Liberty (DOLS) were introduced into the Mental Capacity Act 2005 by amendments introduced by the Mental Health Act 2007.
The DOLS use the Winterwerp requirements in that incapacity must be caused by mental disorder although this approach has been seen to be inconsistent with ‘non- discriminatory’ ethos of The United Nations Convention on the Rights of Persons with Disabilities (CRPD), in that it uses disability or disorder of the mind as criteria for detention.
There has also remained considerable uncertainty in what constitutes a deprivation of liberty. The English courts appear much more hesitant than their Strasbourg counterparts to find a ‘deprivation of liberty’ (Bartlett and Sandland, 2013, p. 216).In the case of C v Blackburn and Darwen BC  EWHC 3321, the UK Courts held that C was not deprived of liberty despite significant restrictions in the form of locked doors and frequent but supervised trips outside to see family. The ECtHR on the other hand seem to take a wider view and a wide array of people, as deprived of liberty (Bartlett and Sandland, 2013, p. 216). In the case of Stanev v Bulgaria (2012) 55 E.H.R.R. 22 , the ECtHR held that there had been deprivation of liberty although in what appear to be less restrictive conditions than C v Blackburn and Darwen BC above.
At the House of Lords debate on 16th March 2015 (HL Deb (2014-15) 760 col 983), Baroness Hollins compared the case of HL above with a more recent case of SN. SN suffered autism and a learning disability and he was able to communicate verbally. He lived at home with his father and had constant adult supervision. However, his father became unwell and exhausted and, in 2009, agreed to SN being admitted temporarily for respite. When he went to fetch his son he was prevented from doing so. The professionals argued that they had concerns about SN’s weight and behaviour, and he was detained under DOLS. For a year SN’s father fought a legal battle to get his son home. Neither he nor his son were eligible for legal aid but fortunately SN’s father was able to do this. There was no automatic tribunal, no means of legal challenge other than through the High Court and ultimately damages were paid because it was found that the council had not acted lawfully in depriving SN of his liberty.
It has been said that the English approach has been to consider the ‘normality’ of the person’s life, using a comparison between the life of the person detained and that of persons suffering similar disabilities and living in similar conditions (Bartlett and Sandland, 2013, p. 216). This was the approach seen in the Court of Appeal judgement in case of P(MIG) and Q(MEG) v Surrey CC and P v Cheshire West and Chester Council.
The Supreme Court Judgement in P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another (Respondents) and P(MIG) and Q (MEG) (by their litigation friend, the Official Solicitor) v Surrey County Council (Respondent)
The Supreme Court considered the criteria for determining whether the living arrangements made for a mentally incapacitated person amounted to a deprivation of liberty under the ECHR article 5.
P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another (Respondents) and P(MIG) and Q (MEG) (by their litigation friend, the Official Solicitor) v Surrey County Council (Respondent) appealed against Court of Appeal decisions (P(MIG) and Q(MEG) v Surrey CC  EWCA Civ 190, P v Cheshire West and Chester Council  EWCA Civ 1257) that living arrangements made for them by the respondent local authorities did not amount to a deprivation of liberty under the ECHR article 5.
P was an adult born with cerebral palsy and Down’s syndrome who required 24 hour care. Until he was 37, he lived with his mother but when her health deteriorated, the local social services authority obtained orders from the Court of Protection that it was in P’s best interest to live in accommodation arranged by the authority. Since November 2009, he had lived in a staffed bungalow with other residents near his home and had one-to-one support to enable him to leave the house frequently for activities and visits. Intervention such as use of restrictive clothing and the insertion of fingers into his mouth to prevent him from eating his continence pads were required when he exhibited challenging behaviour. The Court of Protection had held that these arrangements did deprive him of his liberty but that it was in P’s best interests for them to continue (Cheshire West and Chester Council v P  EWHC 1330 (Fam)). On the Council’s appeal, the Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty, after comparing his circumstances with another person of the same age and disabilities as P (P v Cheshire West and Chester Council  EWCA Civ 1257).
The Supreme Court found in this case, the Court of Protection had in substance applied the right test derived from HL v UK and its conclusion that P was being deprived of his liberty should be restored.
P and Q (otherwise known as MIG and MEG) were sisters with learning disabilities, who became the subject of care proceedings in 2007 when they were respectively 16 and 15. MIG was placed with a foster mother to whom she was devoted and went to a further education unit daily. She never attempted to leave the foster home by herself but would have been restrained from doing so had she tried. MEG was moved from foster care to a residential home for learning disabled adolescents with complex needs. She sometimes required physical restraint and received tranquillising medication. When the care proceedings were transferred to the Court of Protection, the Court held that these living arrangements were in the sisters’ best interests and did not amount to a deprivation of liberty (P v Surrey CC  EWHC 785 (Fam)). This finding was upheld by the Court of Appeal (P(MIG) and Q(MEG) v Surrey CC  EWCA Civ 190).
The Supreme Court with majority (4:3) judgement went on to conclude that there were clear principles from ECtHR jurisprudence which were applicable to the circumstances of the cases before them. The Court concluded that P and Q (MIG and MEG) were deprived of their liberty.
Discussion and analysis of the Supreme Court judgement
Guidance from The European Court of Human Rights was debated by the Supreme Court and they concluded that the European Court had not dealt with a case combining certain features of the cases before them. This included the following:
1. A person who lacked legal and factual capacity to deal with their own placement but had not evinced dissatisfaction or objection.
The Supreme Court concluded that the capacity to object was not a relevant feature in determination of deprivation of liberty.
2. A placement, not in a hospital or social care home, but in a small group or domestic setting which was as close as possible to "normal" home life.
The Supreme Court noted that the ECtHR had never had to consider a case where a person was confined to what may be described as an ordinary home. The Court concluded with a majority agreementthat the fact that a person is confined to a domestic home, as opposed to a hospital or other institution, does not prevent them from contending that they had been deprived of liberty.
3. The initial authorisation of that placement by a court as being in the person's best interests.
The Supreme Court distinguished Court involvement in such circumstances from when it would get involved to sentence a criminal. Hence it rejected the notion that deprivation of liberty should continue for an unlimited time simply because the Court authorises this and should be subject to regular reviews.
4. The regime is no more intrusive or confining than is required for the protection and well-being of the person concerned.
The Supreme Court ruled that the ‘purpose’ of confining a person has no relevance to the question of whether they had been deprived of liberty.
The Supreme Court ruled that people with mental and physical disabilities (including people with intellectual disabilities) had the same human rights as everyone else although recognised that their rights had sometimes to be restricted. Far from disability entitling the state to deny such people human rights, it imposed a duty to make reasonable accommodation to cater for their special needs.
The Supreme Court’s decision defined the ‘Acid Test’ for deprivation of liberty as “a person is under the complete supervision and control of those caring…… and is not free to leave”.
The "relative normality" approach adopted by the Court of Appeal (P v Cheshire West and Chester Council  EWCA Civ 1257), was rejected in P's case, as it was inconsistent with the view that people with disabilities had the same rights as everyone else, and the restriction of liberty is determined by comparing the extent of actual freedom with someone of same age whose freedom is not limited. The Court also ruled that ‘benevolence underpinning a regime which restricts liberty is irrelevant to an assessment of whether it in fact amounts to deprivation’.
The judgement hence articulates a simple, objective and workable approach to assessing deprivation of liberty, and serves as a model for future decision-making, without much need for further elaboration of the test. It does away with the rather ‘conceptually problematic comparator approach advocated by the Court of Appeal’ (Thirty Nine Essex Street, 2014).
This judgement appears to bridge the ‘Bournewood gap’. Since the ECtHR judgement in HL v UK and subsequent introduction of the DOLS in the Mental Capacity Act, there continues to be concern regarding the procedures surrounding care of vulnerable particularly compliant incapacitated people and that they continue to be detained unlawfully. The existing DOLS regime had not addressed issues around the illegality of their detention (Select Committee on the Mental Capacity Act 2005, House of Lords 2013 to 2014).
The lack of suitable safeguards has led to scandals such as Winterbourne View. The Care Quality Commission has since reviewed its inspection guidance and procedures in line with concerns about care of vulnerable people. Even prior to this judgement, the parliamentary review (Select Committee on the Mental Capacity Act 2005, House of Lords 2013 to 2014) has recommended an overhaul of the DOLS implementation process and there has been disparity with the level of protection afforded to adults with capacity by the criminal justice system (Thirty Nine Essex Street, 2014).
The Supreme Court judgement has been seen as logical as it guarantees equality of rights for people with disabilities. This is in line with the position advocated by The United Nations Convention on the Rights of Persons with Disabilities (CRPD).
However there has been concern about the impact that lowering the Article 5 threshold will have on supported living and shared living settings. Lowering the threshold of what constitutes deprivation of liberty was always likely to bring many more people under the provisions of DOLS and cause capacity and cost issues for public, statutory and provider services. This was however seen as a small price to pay in achieving the government’s obligation to safeguard vulnerable people (Thirty Nine Essex Street, 2014).
All disabled and vulnerable adults lacking the relevant capacity who receive care or support funded by, or arranged by, a public body now need to be reviewed to see if the acid test is satisfied. Foster carers, children in local authority care, and family members receiving support from health or social services may now be acting unlawfully unless the procedural and substantive safeguards in Article 5 are met.
It has been over a year since the 19th of March 2014 Supreme Court judgement and in this year there has been a massive increase in referrals for DOLS assessments from 13,000 DOLS applications in 2013-14 to 86,500 since the judgement (HL Deb (2014-15) 760 col 976).The cost to councils arising from the changes as outlined in the judgement is estimated to have increased by more than £98 million. This has caused large backlogs in completing such authorizations and in one authority, 2000 cases are awaiting standard authorization.
Baroness Hollins mentioned in the House of Lords debate on 16th March 2015 that the Mental Capacity Act code of practice has not been updated since it was first published and does not take into account significant changes resulting from case law, including the Supreme Court’s March 2014 judgement. The legal framework is complex, expensive and confusing for clinicians, who may fear that they are not up to date with the latest case law (HL Deb (2014-15) 760 col 984). In the same House of Lords debate, Lord Howard provided examples of patients receiving palliative care with a range of presentations, including a patient in a delirious state; an ‘actively dying patient’ who has lost capacity/consciousness and is receiving sedative medication to manage symptoms of their terminal phase; and a cognitively impaired patient at risk of falls who has a nurse call system that activates when the patients starts wandering in order to alert nursing staff to return the patient to their area of care. He mentioned that “an unintended consequence of legislation” in such cases was that they were now subject to DOLS but this had not been appropriately authorized due to the backlog local authority had accumulated in processing such applications (HL Deb (2014-15) 760 col 982-983).
It will be interesting to see what the effect of the judgement will be in familial settings. After all, the Court of Appeal has in RK v BCC  EWCA Civ 1305 found that those with parental responsibility cannot consent to their child’s deprivation of liberty.
The lowered threshold for deprivation of liberty is also likely to have an effect on Guardianship orders and those under Supervised Community Treatment orders under the Mental Health Act 1983 (as amended 2007), and people under these statutory provisions may find themselves to be deprived of liberty as defined by the Supreme Court’s ‘Acid test’.
There are certain underlying principles derived from European law that have underpinned the evolution and subsequent enactment of DOLS in the United Kingdom. However until the Supreme Court judgement, case law has not helped with considerable uncertainty of what constitutes deprivation of liberty. Scandals such as Winterbourne View (Department of Health, 2012) have fuelled ongoing concerns about the care of vulnerable people. The UK parliament has recognised issues with implementation of DOLS.
The Supreme Court judgement has provided an objective test (‘The Acid Test’) for assessing whether an individual is deprived of liberty.
‘Acid Test’ for deprivation of liberty.
“a person is under the complete supervision and control of those caring......
and is not free to leave” and hence provided an objective measure of what
constitutes ‘Deprivation of Liberty’
In the majority decision, the Court has also addressed issues considered relevant to defining deprivation of liberty in previous judgements by Court of Protection and the Court of Appeal.
The approach of the majority judgement also separates the issue of justifying deprivation of liberty from the actual definition of what constitutes deprivation of liberty.
The Supreme Court judgement also takes the position that the rights of people with disabilities are equivalent to those of people who do not suffers disabilities, which is in line with the vision of the United Nations Convention on the Rights of Persons with Disabilities.
There is concern about the implementation of the regime, as it effectively lowers the threshold of what constitutes deprivation of liberty and hence likely to bring many more people under the provisions of DOLS. This has caused issues for public, statutory and provider services but is seen as a ‘small price’ to pay in achieving the government’s obligation to safeguarding vulnerable people. Nevertheless this has placed strain on local authorities to the point that there are massive backlogs and it can be argued that this renders the new regime ineffective.
Although this judgement is a landmark judgement and defines the way forward, it remains to be seen how future decisions in the ECtHR shape the landscape of DOLS.
Austin v United Kingdom (2012) 55 EHRR 359
Bartlett P and Sandland R, Mental Health Law Policy and Practice (4th edn, OUP 2013)
C v Blackburn and Darwen BC  EWHC 3321
Care Quality Commission
Cheshire West and Chester Council v P  EWHC 1330 (Fam)
Creanga v Romania (2012) 56 EHRR 361
DD v Lithuania  M.H.L.R. 209
Department of Health, ’Transforming care: A national response to Winterbourne View Hospital’ (December 2012) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/213215/final-report.pdf> accessed 7 September 2014
European Communities Act 1972
European Convention on Human Rights
HL Deb (2014-15) 760 col 976
HL Deb (2014-15) 760 col 982-983
HL Deb (2014-15) 760 col 984
HL v UK App no 45508/99 (2005) 40 EHRR 32
Human Rights Act 1998
Mental Capacity Act 2005
Mental Health Act 1983
Mental Health Act 2007
P v Cheshire West and Chester Council  EWCA Civ 1257
P v Surrey CC  EWHC 785 (Fam)
P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents) and P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent)  UKSC 19
P(MIG) and Q(MEG) v Surrey CC  EWCA Civ 190
R. v Bournewood Community and Mental Health NHS Trust Ex p. L  1 A.C. 458
RK v BCC  EWCA Civ 1305
Select Committee on the Mental Capacity Act 2005, ‘Mental Capacity Act 2005: post-legislative scrutiny’ HL (2013-14) 
Stanev v Bulgaria (2012) 55 E.H.R.R. 22
The United Nations Convention on the Rights of Persons with Disabilities
Thirty Nine Essex Street, <http://www.39essex.com/resources/cases.php?id=3555> accessed 28th August 2014
Winterwerp v the Netherlands App No.6301/73 (1979 2) EHRR 387
This article was first published on this site in 2015.