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P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & Anor
Factual and Procedural Background
The opinion consolidates two appeals. In the first, “P” (an adult with cerebral palsy and Down’s syndrome) challenged a Court of Appeal ruling that his placement in a staffed bungalow did not amount to a deprivation of liberty. In the second, two sisters, “MIG” and “MEG,” challenged findings that their respective foster-home and small residential-home placements likewise involved no deprivation. All three individuals lack capacity to decide where to live. Their living arrangements had been approved as being in their best interests under the Mental Capacity Act 2005, and all three enjoy schooling or day-centre activities, family contact and community outings. The central question before the Supreme Court was whether, notwithstanding those beneficial features, the arrangements amount to a “deprivation of liberty” for the purposes of Article 5 of the European Convention on Human Rights, as incorporated by section 64(5) of the Mental Capacity Act.
Legal Issues Presented
- Whether Article 5’s concept of “deprivation of liberty” applies identically to persons with mental or physical disabilities.
- What legal test should determine if supportive living arrangements constitute such a deprivation—specifically, whether continuous supervision and lack of freedom to leave are decisive.
- Whether the benevolent purpose of the placement, the person’s lack of objection, or the “relative normality” of the setting can negate a deprivation of liberty.
- Application of the chosen test to the facts of P, MIG and MEG.
Arguments of the Parties
Appellants’ Arguments (represented by Attorney Gordon)
- The right to liberty is universal; disability cannot dilute Article 5 protection.
- A person is deprived of liberty if under “continuous supervision and control” and “not free to leave” in the sense of leaving permanently to live elsewhere.
- Purpose, quality or benevolence of care, and absence of objection are irrelevant to the existence (though not the justification) of a deprivation.
Respondent Local Authorities’ Arguments (represented by Attorney Richards)
- Strasbourg jurisprudence shows no single touchstone; a multi-factorial “concrete situation” approach is required.
- Restrictions flowing inevitably from grave disabilities should not be labelled deprivations of liberty.
- The “relative normality” of the placements, their home-like settings and the lack of coercion distinguish them from institutional confinement.
Intervenor – Equality and Human Rights Commission (represented by Attorney Bowen)
- Distinguished “Type 1” detentions (expressly permitted by Article 5(1)) from “Type 2” restrictions (not catered for); urged clarity that supportive care can still engage Article 5.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| In re F [1990] 2 AC 1 | Common-law “necessity” principle for treating incapacitated adults | Background to statutory safeguards now in MCA 2005 |
| R v Bournewood NHS Trust ex p L [1999] 1 AC 458 | Informal hospital admission of compliant but incapacitated patient | Highlighted need for legal safeguards later required by Strasbourg |
| HL v United Kingdom (2004) 40 EHRR 761 | Continuous supervision + not free to leave = deprivation of liberty | Core authority for Lady Hale’s “acid test” |
| Stanev v Bulgaria (2012) 55 EHRR 22 | Grand Chamber summary of Article 5 principles in social-care context | Cited as closest Strasbourg analogue; emphasised supervision/control |
| Guzzardi v Italy (1980) 3 EHRR 333 | Distinction between restriction and deprivation is one of degree | Forms part of Court’s analytical framework |
| Engel v Netherlands (1976) 1 EHRR 647 | Early articulation of degree/intensity test | Referenced indirectly via Guzzardi/Stanev |
| Storck v Germany (2006) 43 EHRR 6 | Three components: confinement, lack of consent, state responsibility | Framework adopted by Supreme Court |
| Ashingdane v UK (1985) 7 EHRR 528 | Detention can exist even on an open ward | Used to show openness of setting not decisive |
| Shtukaturov v Russia (2012) 54 EHRR 27 | Lack of legal capacity does not equal lack of factual understanding | Cited when discussing subjective element |
| De Wilde, Ooms & Versyp v Belgium (1971) 1 EHRR 373 | Voluntary appearance does not forfeit Article 5 rights | Supports irrelevance of apparent compliance |
| HM v Switzerland (2004) 38 EHRR 17 | Older case distinguishing consented nursing-home stay | Considered but not followed as later law supersedes |
| Creanga v Romania (2013) 56 EHRR 11 | Purpose of confinement irrelevant to Article 5(1) threshold | Used to reject benevolent-purpose argument |
| Austin v United Kingdom (2012) 55 EHRR 14 | Public-order “kettling”; motive immaterial to deprivation question | Reinforces objective nature of liberty test |
| Nielsen v Denmark (1988) 11 EHRR 175 | Parental rights may justify hospitalising a child | Discussed but treated as sui generis |
| DD v Lithuania (App 13469/06, 2012) | Objections by legally incapacitated person relevant | Illustrative of subjective element |
| Kedzior v Poland (App 45026/07, 2012) | Constant supervision in care home = deprivation | Supports acid test |
| Mihailovs v Latvia (App 35939/10, 2013) | Tacit acceptance can defeat subjective limb | Considered when addressing MIG/MEG’s compliance |
| Litwa v Poland (2001) 33 EHRR 53 | Short-term police confinement engages Article 5 | Illustrates breadth of protection |
| JE v DE [2007] 2 FLR 1150 | “Free to leave” means free to live elsewhere | Definition adopted in majority judgment |
| Secretary of State v JJ [2008] AC 385 | Control orders—degree versus nature of restrictions | Cited for comparative purposes |
| Austin v Commissioner of Police [2009] AC 564 | Domestic view on motive; later disapproved in Strasbourg | Used to show shift in jurisprudence |
| MA v Cyprus (App 41872/10, 2013) | Motive irrelevant to Article 5 threshold | Reinforces majority approach |
| Glor v Switzerland (App 13444/04, 2009) | Convention must reflect modern disability rights | Cited to support universality principle |
Court’s Reasoning and Analysis
Lady Hale (majority) held that Article 5 safeguards apply equally to all persons. Disability cannot justify a lower threshold for loss of liberty. Drawing on HL v UK and Stanev v Bulgaria, she extracted an “acid test”: (1) Is the person under continuous supervision and control? (2) Is the person free to leave in the sense of moving elsewhere permanently?
She rejected three factors as legally irrelevant to the threshold question: (a) the person’s compliance or lack of objection; (b) the relative normality or benevolence of the placement; and (c) the motives or aims of the carers. Those matters may justify a deprivation but do not negate its existence.
Applying the test, the majority concluded that P, MIG and MEG were all subject to continuous staff (or foster-parent) control and could not leave without permission; therefore Article 5 was engaged. The majority restored Baker J’s first-instance finding for P and overturned Parker J’s and the Court of Appeal’s rulings regarding MIG and MEG.
Lord Neuberger and Lord Kerr agreed. Lord Carnwath, Lord Hodge and Lord Clarke dissented in part, warning that the approach extended Article 5 beyond existing Strasbourg authority, especially for benign domestic settings. They would have upheld Parker J on MIG and MEG, though they accepted deprivation in P’s case as a permissible factual finding.
Holding and Implications
Holding: The Supreme Court (by majority) ruled that P, MIG and MEG were deprived of their liberty within section 64(5) of the Mental Capacity Act 2005. The appeal of P was allowed, and the declarations of deprivation of liberty were restored/made in all three cases.
Implications: The decision establishes a clear, two-limbed test for identifying deprivation of liberty in social-care settings, regardless of setting type, compliance, or benevolent intent. It significantly broadens the range of living arrangements requiring authorisation under Schedule A1 or court orders, thereby increasing the administrative burden on local authorities but providing enhanced human-rights safeguards for incapacitated individuals. No new precedent on justification was set; the ruling concerns only the threshold question.
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