Members of 39 Essex Chambers have been instructed by both sides in the cases of P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent) and P (by his litigation friend the Official Solicitor) (FC) (Appellant) v Cheshire West and Chester Council and another (Respondents), which were heard concurrently in the Supreme Court.
Jenni Richards QC, Neil Allen and Peter Mant acted for the Local Authorities in both of these cases and Fenella Morris QC and Benjamin Tankel acted for the Official Solicitor in the former case.
The issue in both of these cases was how the court should determine whether there is a deprivation of liberty under Article 5 of the European Convention of Human Rights for the purposes of the Mental Capacity Act 2005.
The case of P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent) is to decide whether the living arrangements of a pair of severely mentally handicapped sisters(P and Q)could be viewed as a deprivation of liberty. P had her own bedroom in her foster carer’s home, which had a door that was always unlocked. P had made no attempt to leave, but were she to do so her foster mother would restrain her for P’s immediate safety. Q lived in a secure NHS children’s home, where she had her own bedroom. She sometimes required physical restraint due to occasional outbursts. She was treated with medication, Risperidone, for the purpose of controlling her anxiety. Both sisters attended college and were taken on outings. The sisters had not lived with their mother since 2007, when they had done their lives had been dysfunctional and abusive. Their contact with their mother was restricted by court and they were not permitted to live with her.
In P (by his litigation friend the Official Solicitor) (FC) (Appellant) v Cheshire West and Chester Council and another (Respondents) the Court will determine whether P (a thirty nine year old man who lacks the capacity to make decisions as to his care and residence) is being deprived of his liberty due to the restrictions placed upon P by his care package. P lives in a large single-level bungalow, where he has his own rooms and access to two bathrooms. During the week he attends a day centre and a hydrotherapy pool. He is also able to visit community and leisure facilities and to visit his mother, with support from staff. P has a history of shredding his continence pads and putting them in his mouth. Though various non-physical methods are attempted to stop this, staff members sometimes have to resort to intervening physically.
Judgment is awaited in these cases.