Judge: Baker J.
Citation:  EWHC 1330
Summary: P was a 38-year-old man, born with cerebral palsy and Down’s syndrome with a history of cerebral vascular dementia. Throughout his life he had been cared for by his mother, M. But with her health deteriorating, the local authority brought proceedings in the Court of Protection to authorise an alternative placement. Since November 2009 P has been living in a large, spacious bungalow (‘Z House’) with other residents, receiving a high level of care. The central issue related to Article 5 of the ECHR. The local authority contended that P’s liberty was restricted; M and the Official Solicitor on behalf of P submitted that it was deprived. No human rights violation was alleged.
After outlining the well-known legal principles, Mr Justice Baker referred to the guidance given in P and Q v Surrey County Council  EWCA Civ 190. There the Court of Appeal had recognised sedative medication, relative normality, and objections to confinement as being characteristic of the objective element of a deprivation of liberty. The specific factors identified by the parties as relevant to the restriction/deprivation dilemma were listed at paras 54-56. His Lordship accepted that the local authority had taken ‘very great care to ensure that P’s life [was] as normal as possible’. The bungalow was not designed for compulsory detention. P was encouraged to have regular contact with his family, attended a day centre every weekday and had a good social life. These features ‘help to give his life a strong degree of normality’ (para 58). However, his life was completely under the control of the staff as he could not go anywhere or do anything without their support and assistance. In particular, P’s occasionally aggressive behaviour and habit of touching and eating his incontinence products required a range of measures, including physical intervention at times.
The Court concluded that the steps required to deal with P’s challenging behaviour, looked at overall, amounted to a deprivation of liberty. Mr Justice Baker went on to hold at para 61:
“In my judgment, it is almost inevitable that, even after he has been supplied with a bodysuit, P will on occasions gain access to his pads and seek to ingest pieces of padding and faeces in a manner that will call for urgent and firm intervention. Those actions will be in his best interests and therefore justifiable, but they will, as a matter of concrete fact and legal principle, involve a deprivation of his liberty.” (emphasis added)
The consequences were twofold. First, ‘those working with P are under a clear obligation to ensure that the measures taken are the least interventionist possible’. This required regular reassessments to consider alternative management strategies, such as the bodysuit and educating P not to behave in ways that required restraint (para 62). Secondly, the Court would have to conduct regular reviews, which the local authority had requested in any event (para 63).
Departing from the general rule, the Court ordered the local authority to pay a proportion of the other parties’ costs because an employee, who was subsequently dismissed, had misled the Court and tampered with P’s daily care records. Such misconduct was also held to justify the naming of the local authority, after the Court balanced the Article 10 public interest considerations with the Article 8 right to respect for privacy of P and others.
Comment: This is the first reported decision to apply P and Q v Surrey County Council  EWCA Civ 190 in the context of a supported living arrangement. There was no breach of Article 5 as the Court had authorised the placement. Given that the circumstances are not particularly unique for those presenting with P’s significant level of physical and learning disabilities, the current implications of the decision are far-reaching. Similar community living arrangements with liberty restrictions of analogous intensity or degree will have to be authorised by the Court of Protection.
The effects of the judgment may also be felt in other settings where urgent and firm intrusive intervention is used in respect of those lacking capacity to consent. For the time being, using restraint to insert fingers into an incapacitated person’s mouth in their best interests is a deprivation of their liberty if imputable to the state. Such a procedure is unlikely to be a rare occurrence in some hospitals and care homes (or even NHS dental surgeries). Other similar forms of bodily intrusion may also fall within the scope of Article 5, using restraint to anaesthetise a person lacking capacity to administer electroconvulsive therapy being but one example. Indeed, many life-saving medical interventions require proportionate restraint in urgent circumstances where the person lacks capacity.