I was delighted to be asked by the barristers at 39 Essex Street
to write a summary of the Court of Appeal’s ruling in Cheshire West and Chester Council v P for their Court of Protection newsletter
(backcopies available here
). They have very kindly said I can post the summary here. In a subsequent post, I will give an extended version of my guest commentary
. All mistakes and views in this summary are my own.
Summary of the Court of Appeal’s ruling in Cheshire West and Chester Council v P
This case was an appeal by Cheshire West and Chester Council
against a ruling
that P, a man with cerebral palsy and Down’s syndrome who lacked capacity to make decisions about care and residence, was deprived of his liberty. P lived in a small group home that was not a care home, and hence not subject to the deprivation of liberty safeguards (DoLS) authorisation regime. Consequently, any deprivation of liberty found to be occurring by the court would have required authorisation directly from the Court of Protection itself, and annual reviews by the court (see Salford City Council v BJ
). The case was heard by Munby LJ, Lloyd LJ and Pill LJ, who considered under what circumstances the care of an incapacitated adult might satisfy the ‘objective element’ (JE v DE
, ) of deprivation of liberty under Article 5 ECHR.
P required a high level of care and received one-to-one close personal supervision during the daytime in order to manage risks associated with certain behaviours. In particular, P had developed a habit of pulling apart his continence pads and putting soiled pieces into his mouth; when this occurred he was subject to physical intervention by two staff members to remove the pieces and clean his hands. P’s care plan also included the wearing of a body suit, designed to limit his access to his pads.
In the first instance hearing Baker J considered that although those caring for P had taken great care to ensure he had as normal a life as possible, the fact he was ‘completely under the control of members of staff’ and the steps required to deal with his challenging behaviour, led to the conclusion he was deprived of his liberty (High court, -. Their Lordships allowed the appeal against this ruling, and in doing so reaffirmed and refined the principles the Court of Appeal set out in P & Q v Surrey County Council
In P and Q
Wilson LJ had said that an inquiry into whether or not a person is deprived of their liberty must consider the relative normality of their situation, with certain settings more likely than others to amount to a deprivation of liberty (P & Q, -). Munby LJ offered a ‘rough and ready’ classification of which kinds of placements along the spectrum of ‘normality’ had amounted to a deprivation of liberty in the case law (Court of Appeal, -). Typically care of children or vulnerable adults in a domestic setting, a foster placement or small specialist services like those occupied by MEG (from MIG & MEG
, known as Q in P and Q) will not amount to a deprivation of liberty. He found that two cases lay “towards the other end of the spectrum” , those of HL v United Kingdom
and DE v JE and Surrey County Council
Munby LJ stressed that when interpreting the ‘normality’ of a setting, the relevant comparator is:
‘…not with the previous life led by X (nor with some future life that X might lead), nor with the life of the able-bodied man or woman on the Clapham omnibus, but with the kind of lives that people like X would normally expect to lead. The comparator, in other words, is an adult of similar age with the same capabilities as X, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations (call them what you will) as X. Likewise, in the case of a child the comparator is a child of the same age and development as X.’ 
Because of his disabilities, P’s life was ‘inherently restricted’ , and he would be subject to similar restrictions by those caring for him wherever he lived. The ‘fundamental problem’ with Baker J’s approach was that he had not compared P’s life with the restrictions a person with his disabilities and difficulties would be subject to in a ‘normal family setting’ . Only in extreme cases is restraint likely to be so pervasive as to constitute a deprivation of liberty .
The judgment did, however, distinguish those situations ‘where a person has somewhere else to go and wants to live there but is prevented from doing so by a coercive exercise of public authority’  as in HL v UK, DE v JE and Surrey County Council and London Borough of Hillingdon v Neary. These cases remain a deprivation of liberty.
Munby LJ also found that when determining whether deprivation of liberty was occurring it was legitimate to have regard to the ‘objective’ reason and purpose underlying restrictions. In some limited circumstances, like those considered in Austin & Anor v Commissioner of Police of the Metropolis
(the ‘kettling’ case), improper motives or intentions could render what would otherwise not be a deprivation of liberty into one. However, a good motive or intention ‘cannot render innocuous what would otherwise be a deprivation of liberty’ . Deprivation of liberty in a domestic context could occur, but such cases would be atypical. Munby LJ gave as an example of deprivation of liberty in a domestic setting a husband who confined his wife to the house in order to enjoy his ‘conjugal rights’. This was contrasted with a husband who confines his wife to the house unless he is with her because she suffers from dementia and might wander in front of a car; this situation would not typically be a deprivation of liberty. The crucial distinction between these cases was the husbands’ reasons, purpose and motives for the restrictions  – . The other members of the Court of Appeal agreed with Munby LJ’s judgment and reasons, although Lloyd LJ commented that the discussion of motive, purpose and intentions ‘may occasion further debate in future cases’ .
My commentary to follow… (here)
But in the meantime, several bloggers and lawyers have already offered their thoughts on the case. Roger Hargreaves has written a summary
of the case for Community Care. Ermintrude2 is a best interests assessor who writes at the Not So Big Society Blog
, in her commentary
she describes her own experiences of working with DoLS, and then says:
Honestly, I feel duped. I felt we were a part of a system that was going to be finally protecting the rights of all. Instead we are setting different bars on the level of different disabilities.
I am no great fan of the Deprivation of Liberty Safeguards as they stand. They are full of confusion and holes but I did genuinely believe the purpose of them was to protect people who lacked capacity from potentially abusive or complacent care settings. Unfortunately what I see from these judgements increasingly, is that the purpose of the deprivation of liberty safeguards was not about protecting rights but to cover the back of the UK in terms of Human Rights legislation.
Speaking to other people who work with the DoLS, I think quite a few local authority best interests assessors may feel quite disappointed that the ruling will really hamper the work of local authority teams who work with MCA and DOLS to ensure that people are not subject to excessive levels of control, and that care is delivered in their best interests.
Simon Burrows at King’s Chambers was instructed by the Official Solicitor to act for P, and they have posted a commentary
on their website. They say the ruling:
…has the potential for unfortunate unintended consequences. Taken to its logical conclusion it could subvert the purpose of the Mental Capacity Act altogether and lead to discriminatory implementation of restrictive regimes with those who are the subject of those regimes having no effective right of challenge.
Ben Troke and Neil Ward at Browne-Jacobson consider whether the ruling will be the death of DoLS
If it is right that restrictions imposed simply to meet the needs of P’s condition are by definition not a deprivation of liberty, it becomes difficult to imagine a situation that would be a deprivation that could nevertheless be lawful (whether by DOLS authorisation or by court of protection order) as being in P’s best interests, necessary and proportionate, and the least restrictive option. It would seem that all the conditions that are required to make any deprivation lawful will, in effect, mean in most cases that there is no deprivation at all. Education and training that has emphasised the need to separate the primary question of whether there is a deprivation of liberty from the secondary question of lawful justification may now to be revised.
They also question whether the ruling may have discriminatory effects:
… we may wonder if there is a discriminatory effect against those vulnerable people, lacking capacity, who do not have family offering alternative proposals, who may therefore be deemed not deprived of liberty, and will not have the benefit of any scrutiny of their care, either through DOLS or the court. The experience of recent scandals and reports about care of the most vulnerable in society might encourage a public view that more procedural scrutiny and safeguards are required, rather than less.
This, I have to say, is close to the view I take. I’ll post an extended version of the commentary I wrote for the 39 Essex Street Newsletter next