View source for DH summary of Re P and Q (2011) EWCA Civ 190

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The Court of Appeal set out that the European Court of Human Rights had made clear that a deprivation of liberty has three elements:

*“The objective element of confinement to a certain limited place for a not negligible length of time”: Storck v Germany (2005) 43 EHRR 96 at [74]
*the “additional  subjective element [that] they have not  validly consented to the confinement in question” the Storck case, also at [74]
*the confinement must be “imputable to the State”: the Storck case, at [89]” i.e a public authority is directly involved.

"Lord Justice Wilson considered whether the fact that MIG and MEG (now referred to as P and Q) were happy in their care environments was relevant to whether they were deprived of liberty. In Mrs J Parker's view, happiness in their placements was relevant to her consideration of the objective element. This was reconsidered by the Court of Appeal which held that happiness in their care environment was not relevant to whether a person was deprived of liberty. However, Lord Justice Wilson felt that happiness was relevant to whether the deprivation of liberty was in their best interests, as a person can only be lawfully deprived of their liberty if it is in their best interests.

Lord J Wilson then considered if the fact that a person, whether with capacity or not, objected, can also be relevant to the objective test. He argued that where a person was objecting, it could lead to conflict, and possibly physical restraint as in the case of Storck v Germany (2005) 43 EHRR 96.  In his view, the presence or absence of an objection is therefore very relevant to whether there is an objective deprivation of liberty."

Similarly, Lord J Wilson considered that medication can be relevant. If a person is being given medication, particularly tranquilisers, it is a pointer to the existence of the objective element, because it suppresses the patient’s liberty to express themselves. Even more so, if medication is forcibly given. Similarly, the absence of medication points the other way.

MJP had said she felt it was permissible to look at the reasons why they lived as they did. She found that the principal reason they were where they were was to give them a home and so they could receive care. It was not so they could be treated or managed. Lord J Wilson felt it was wrong to look at the purpose of the arrangements. However, he felt Mrs J Parker was “by implication stressing the relative normality of the living arrangements under scrutiny”. He felt that persons living at home will not normally be deprived of their liberty. A foster home or a carer’s home was not much less normal. Lord Justice Wilson states that
“even when the person lives in an institution rather than in a family home, there is a wide spectrum between the small children’s home or nursing home, on the one hand, and a hospital designed for compulsory detentions like Bournewood; and it is in my view necessary to place each case along it.”
 
Other factors that he felt should also be considered were whether the person went out every day – to college or a day centre, or to pursue some kind of occupation, and whether there were restrictions on their social contacts. Looking at all these factors, Lord J Wilson held that there was clearly no deprivation of liberty for P, and slightly less clearly, there was no deprivation of liberty for Q. In dismissing the appeal he said that the main factors which kept Q’s case the right side of the line were
“The small size of the home for adolescents in which she lived; her lack of objection to life there; her attendance at the educational unit; her good contact with such members of her family as were significant for her; and her other, fairly active, social life:”

This view was supported by the other 2 appeal court judges.
 
An important distinction appears to be emerging in these judgments that people living in their own homes or tenancies, care homes or in “acute” hospitals will, whilst being restrained in their best interests, typically not be deprived of their liberty as those “normal” regimes will typically not achieve that threshold in delivering the treatment or care to which they are unable to consent. If however, their family or carers are indicating that they do not want the person to be there and more importantly, if the person  himself is indicating that he doesn’t wish to be there, then the question of their confinement arises and the question of deprivation of liberty is now engaged. Other factors to consider are the use of medication, social contact, and whether the person goes out of the home regularly to college, day centre or place of occupation.

Mental health settings are different. As Lord Justice Wilson notes they are designed for compulsory detentions (under the Mental Health Act). If they are to admit and treat those lacking the capacity to consent to being there outside of the Mental Health Act they face a different challenge. They will need to demonstrate that the regime for those not detained under the Mental Health Act (MHA) is distinct and different to the regime for those detained under the MHA. Otherwise, a person who lacks capacity to consent for himself, even when they are not objecting (unlike those settings where there is a relative normality to the living arrangements) is likely to be deprived of his liberty by simply being in that setting. The Deprivation of Liberty Safeguards will need to be applied in those circumstances even when the person is not objecting if the deprivation of liberty in their best interests is to be made lawful.
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