Re MIG & MEG

Summary: One might have been forgiven for thinking that deprivations of liberty were the norm in care homes and supported living placements for incapacitated people who require assistance with most activities and access the community unaided. Certainly, in the authors' experience, in the great majority of cases, the parties and often the court have erred on the side of caution and sought declarations authorising placements even if they amount to a deprivation of liberty. Generic declarations of that sort avoid dealing with the prior question of whether there is in fact a deprivation of liberty in the particular case. Re MIG and MEG looked in detail at this issue in respect of two sisters, one living with a foster family and one living in a small residential unit:

MEG was "incapable of independent living. She is largely dependent on others. She needs to be looked after save for basic care needs. She lacks capacity to make decisions as to her care, education, social and family contacts and health care. She cannot go out on her own. She shows no wish to go out on her own. She can communicate her wants and wishes in a limited manner. There are no restrictions on her social contacts save by way of court declaration. She goes to college. She is transported to and from college. Whilst there she is not under the control of JW or the Applicant and there are no restraints on her social contacts. She has a lively social life both in the home and at college and outside the home accompanied by staff and other residents."

MIG was "a young woman of 18... She has a severe learning disability with the cognitive ability of a 2-3 year old and has hearing, visual and speech impediments. She is incapable of independent living. She is largely dependent on others. She needs to be looked after save for basic care needs. She lacks capacity to make decisions as to her care, education, social and family contacts and health care. She cannot go out on her own. She shows no wish to go out on her own. She can communicate her wants and wishes in a limited manner. MIG is living in an ordinary domestic environment which she regards as home. She is not restrained in any way. She is not locked in in any way, (although she does refuse to keep her bedroom door open, causing some concern to her foster parents). She does not wish to leave. She wants to stay with JW. She loves JW and regards JW as her "Mummy". Continuous supervision and control is exercised so as to meet her care needs. Limitations on movement are generally dictated by limitations in MIG's ability, or her lack of awareness of danger. She has never sought to leave the home. If she were to try to leave she would be restrained for her own immediate safety." Contrary to the submissions of the Official Solicitor on behalf of both sisters, Parker J held that there was no deprivation of liberty in either case.

Comment: The judge applied the decision in Austin (FC) & another v Commissioner of Police of the Metropolis [2009] UKHL 5, in which the House of Lords held that cordoning protestors for a period of hours and preventing them from leaving the cordoned area was not a breach of Article 5. Some elements of the judgments in Austin are susceptible to criticism (see for example the surprising statement by Lord Hope that "there is room, even in the case of fundamental rights, for a pragmatic approach to be taken which takes full account of all the circumstances where the interests of public safety have to be balanced against the rights of the individual"). Parker J seems to have taken from Austin that a relevant factor in determining whether there is a deprivation of liberty is the reason for P's detention. Thus she held that "it does seem to me to be realistic to put into the equation...that both girls were placed in their respective placements are children in need, because they need homes, rather than because they require restraint or treatment. It is also relevant in my view to consider the reasons why they are under continuous supervision and control." However, in many previous cases where a deprivation of liberty has been found, the reason for the detention was similarly that P needed care and/or treatment. It appears to the authors that there were two key factors in the judge's decision:

(a) First, no-one was objecting to the sisters' placements. They were not "free to leave", but no-one was seeking to move them. (b) Second, because of their cognitive limitations, they would have been subject to similar constraints in any placement and even if they were living with their own family. Again, the latter point applies with equal force to many cases in which a deprivation of liberty has been found, which tends to suggest that perhaps the most important factor is whether there is a dispute about where P should live, and in particular, whether P herself is expressing a desire to leave.

The case has been appealed by the Official Solicitor and will be heard by the Court of Appeal in November 2010.