P & Q v Surrey County Council & Others

Summary: This case, which had previously been known as MiG and MeG, is the first decision of the Court of Appeal as to what constitutes a deprivation of liberty. The two incapacitated adults were sisters, aged 18 and 19 years old, who both suffered from a learning disability. P had a moderate to severe learning disability and found it difficult to communicate. Q had better cognitive functioning but exhibited challenging behaviours. At the time of the first instance hearing before Parker J, P was living with a foster family where she had her own bedroom, and where the house was not locked, although if P had tried to leave on her own, her foster mother would have restrained her. P attended college each day and went out on trips and holidays. Q was living in a small residential placement which did not qualify as a care home. She had her own bedroom and was not locked in, but was always accompanied when she left. She also attended college. She sometimes required physical restraint when she attacked other residents, and required continuous supervision and control (to meet her care needs). She was in receipt of medication for controlling her anxiety. Did either arrangement constitute a deprivation of liberty?

Under the ECtHR caselaw, three elements must be satisfied for a deprivation of liberty to exist: an objective confinement, attributable to the State, to which the individual has not validly given consent. The only issue before the Court of Appeal was whether there was an objective confinement: the existence of the other two elements was not disputed.

The first issue dealt with was the status of any objection to the alleged confinement by the individual. The Official Solicitor for P and Q submitted that this was irrelevant to whether there was objectively a confinement. The Court of Appeal disagreed, concluding that where there is an objection, this may well generate further restrictions (for example preventing the person from leaving, or forcibly returning them), and that where there is no objection, there may be a 'peaceful life' which is equally relevant to whether there is a confinement.

The second issue examined by the Court was the use of medication. Again, the conclusion was reached that the use of tranquilising medication was a pointer in favour of objective confinement, and the absence of medication a pointer the other way.

The third issue considered was the purpose of the restrictions. At first Instance, Parker J had appeared to suggest that a benign or benevolent purpose (ie. to provide care and a safe environment) might mean that restrictions were not to be viewed as contributing to a deprivation of liberty. The Court of Appeal, in somewhat unclear terms, said that it was wrong to attach significance to the fact that restrictions were imposed in a person's best interests. It did however consider it relevant whether the person was in a 'normal' environment, for example whether one had social contacts, was living in a family or in an institution, and so forth.

One member of the Court of Appeal expressly rejected the suggestion made by the local authority that it was relevant to compare the alternative, historic arrangements for P and Q, which had been much worse for both, as they had been subject to neglect and abuse. However, no concluded view was expressed on this issue by Wilson LJ, and Mummery LJ simply recorded that he had initially found the argument attractive but could see the danger that it risked conflating whether there was a deprivation of liberty with whether such deprivation of liberty was in the person's best interests.

Wilson LJ concluded that P was clearly not subject to an objective confinement, and that Q's case, although more borderline, also fell outside Article 5 due to Q's 'attendance at an educational unit, her good contact with such members of her family as were significant for her, and her other, fairly active social life'. The other members of the Court of Appeal agreed with his analysis and conclusions.

Comment: The wait by practitioners for clear guidance from the courts about how to identify a deprivation of liberty appears set to continue for the foreseeable future: the Court of Appeal's decision may be appealed to the Supreme Court, and, in the view of the authors, still leaves a number of questions unanswered.

First, it is not clear whether the Court of Appeal considered that the absence of factors that would point towards a deprivation of liberty (such as medication and attempts to leave a placement) actively weigh against other factors, or are simply an indication that the case falls towards one end of the spectrum. Secondly, it is unclear how a lack of objection by an incapacitated individual can be said to be relevant to the question of whether there is an objective confinement. While it is obviously true that where P objects to confinement, additional restraint and restrictions may well be needed, and that this will be relevant in determining whether there is a deprivation of liberty, it is far from clear that the reverse is true. Is deprivation of liberty about supervision, control, and absence of choice, or is it about locked doors, sedation, and physical restraint? The authors tend to the view that in relation to people without capacity, it is the former, although the court appears to have concluded that supervision and control are likely to give rise to a deprivation of liberty only when they are exercised in an institutional setting. A locked door, or use of physical restraint may be a sufficient factor to demonstrate an objective confinement, but are they necessary components when considering the situation of people who do not have a normal capacity to assert their own independence? It might be said that the safeguards put in place by Article 5 ought to apply not just to those who have the capacity and/or temperament to cause a fuss. There are likely to be many examples where individuals without capacity may be oblivious to their circumstances, or unhappy but too miserable or too incapacitated to object. It is perhaps unsurprising that there is a reluctance to think that the concept of a deprivation of liberty could apply where individuals appear to be living relatively normal lives in the community, particularly when large and isolated institutions are a thing of the past. However, the importance of the procedural safeguards imposed by Article 5, whether through the court or through DOLS, is that they require proper thought to be given to less restrictive solutions, and provide a mechanism for independent scrutiny. It is arguable that accepting that an incapacitated adult is deprived of his or her liberty does not necessarily mean adopting a paternalistic or old-fashioned approach, but may in fact give substance to the person's apparent autonomy.

The Court of Appeal said expressly that the decision was not influenced by 'floodgates' arguments and the risk that the courts would be inundated with applications requiring declarations sanctioning deprivations of liberty and the subsequent reviews required by Article 5(4), but it is easy to imagine such considerations being in play. A concern expressed by the government in the seminal Bournewood case was that if HL was deprived of his liberty, then so were many thousands of people in care homes and hospitals up and down the country. The end result was the introduction of Schedule A1, and it may yet be that the Supreme Court adopts a position which requires similar legislation to be introduced in respect of supported living placements.