Text:ICLR Cheshire West and Chester Council v P [2011] EWCA Civ 1257

HUMAN RIGHTS — Right to liberty and security of person — Severely disabled man subject to restraints to prevent self-harm — Whether restraints constituting deprivation of liberty — Whether entitled to periodic review by court — Human Rights Act 1998 (c 42), Sch 1, Pt I, art 5(4)

Cheshire West and Chester Council v P (by his litigation friend the Official Solicitor)

[2011] EWCA Civ 1257^M; [2011] WLR (D) 325

CA: Pill, Lloyd, Munby LJJ: 9 November 2011

In determining whether or not there was a deprivation of liberty, it was legitimate to have regard both the objective “reason” why someone was placed and treated as they were and also the objective “purpose” or “aim” of the placement. For adults with disabilities, whose lives were dictated by their own cognitive and other limitations, the question whether they had been deprived of liberty fell to be determined by comparing their situation with that of an adult of similar age with the same capabilities, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations.

The Court of Appeal so held when allowing an appeal by the local authority, Cheshire West and Chester Council, from a decision of Baker J on 4 April 2011, [2011] EWHC 1330 (Fam)^B that the care plan for P, a 39-year-old man with cerebral palsy and Down’s syndrome, involved a deprivation of liberty for the purposes of article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

MUNBY LJ said P was incontinent and had developed a habit of tearing pieces off his continence pad and ingesting them. His carers had tried to intervene by getting him to open his mouth and putting in their fingers to try and sweep out the ingested material. Latterly, to prevent him from accessing the pad he had been placed in an all-body suit like a Babygrow which he could not open from the front. His Lordship reviewed in detail the Strasbourg and domestic jurisprudence relating to article 5. It could not be right, he said, that the decision in the particular case could only be arrived at after a minute examination of all the facts in enormous detail. The issue was to find a relevant comparator. His Lordship suspected that the unspoken assumption most of the time was the ordinary adult enjoying “liberty to do those things which in this country free men were entitled to do: Jones v Cunningham (1963) 371 US 236, 243. This was the appropriate comparator in many, perhaps most cases, but not in the kind of cases coming before the Court of Protection. It was legitimate to have regard both to the objective “reason” why someone was placed and treated as they were and also to the objective “purpose” (or “aim”) of the placement. A good motive or intention could not render innocuous what would otherwise be a deprivation of liberty. Some people were inherently restricted by their circumstances and the “normality” with which the court was concerned in their case was the normality of someone with the relevant condition, not the normality of the life of able-bodied man or woman on the Clapham omnibus. P was not being deprived of his liberty. He was living a life which was as normal as it could be for someone in his situation.

LLOYD LJ delivered a concurring judgment and PILL LJ agreed.

Appearances: Jenni Richards QC and Neil Allen (instructed by Legal Services Department, Cheshire Wast and Chester Council) for the local authority; Richard Gordon QC and Simon Burrows (O’Donnells on behalf of the Official Solicitor) for P.

Reported by: John Spencer, Barrister