Re P and Q; P and Q v Surrey County Council; sub nom Re MIG and MEG [2011] EWCA Civ 190
Judgment of Parker J upheld: neither P (aged 18, in a foster placement) nor Q (aged 17, in a small group home) was deprived of her liberty.
Summary and Comment
The controversy following Parker J’s initial judgment (15 April 2010) was because her reasoning in holding that P and Q were not deprived of liberty included references to the “intention”, “purpose”, “motivation” and “reasons” for the care arrangements. Parker J herself accepted that good intentions are not relevant to the issue of whether or not someone is objectively being deprived of liberty, but went on in the same paragraph (para 230) to say that it was permissible in this case to look at the “reasons” for MIG and MEG living where they were.
With respect, many practitioners thought that this confused the fundamental distinction between whether an objective deprivation of liberty existed, and the secondary question of whether it could be justified and lawful as being in P’s best interests. This could undermine appropriate use of procedural protection for P, including the Deprivation of Liberty Safeguards in care homes and hospitals, by encouraging carers to say that their good intentions / purpose / reasons meant that there was no deprivation occurring.
The facts were:
- P and Q are sisters, now aged 18 and 19 respectively, who have substantial and permanent learning disabilities. - They lack capacity to make decisions about their care and where they live. - P and Q were removed from the family home in 2007. - P was moved to a family home with a devoted foster mother, had her own bedroom and she never attempted to leave home, but would have been restrained if she did try to do so. - Q was one of four residents at a specialist residential home, which was not registered as a care home. She had her own bedroom, she occasionally suffered from outbursts and sometimes required physical restraint. Q showed no wish to leave. Q was on medication to control her anxiety.
The Court of Appeal (Wilson, Smith and Mummery LJJ) agreed that neither P nor Q were being deprived of their liberty, but took a significantly different approach to the reasons for this. Lord Justice Wilson’s leading judgment reviewed the factors that are relevant (or not) when considering whether there is an objective deprivation of liberty:
1. A person’s happiness is not relevant to whether they are being deprived of their liberty (para 24).
2. However, it is relevant to consider if a person objects to the confinement, because this is likely to lead to conflict and confrontation (para 25).
3. Use of medication is relevant, especially it may suppress a person’s ability to express their wishes, and all the more if forced on the person (para 26).
4. It was, however, inappropriate to take into account that the “purpose” of the care package was to further their best interests, and Wilson LJ would “dissociate himself from the terminology of that passage” in which Parker J had referred to the “reasons” for the living arrangements as relevant (para 27).
5. On the other hand, the “relative normality” of the arrangements was very important to Wilson LJ: “If the person is living with her parents, or other members of their natural family in their home, they are living – in that respect - the most normal life possible. Typically - but sadly not always - there will be no deprivation of liberty in such circumstances” (para 28).
Note that this list is not exhaustive, but simply reviews the factors that had been taken into account by Parker J in this case.
Q’s case was closer to the “border” of deprivation of liberty (because she was not in a family home, was medicated and subject to occasional physical restraint), but on balance neither P nor Q were deprived of her liberty. It was significant that they both had good outside social contact and went out for trips and for education, giving them something like a “normal” daily balance between education and home.
Mummery LJ was “very attracted” by the idea that the local authority’s intervention with P and Q was to “rescue” them from “an abusive and neglectful environment”, and therefore enhanced their lives, and could not be regarded as a deprivation of liberty, but he accepted that this was a dangerous approach, as “it risks confusing matters which affect whether a deprivation of liberty is lawful with whether it exists at all” (something that, perhaps, could have been said of Parker J’s approach to the relevance of reasons and purpose). Lady Justice Smith’s judgment explicitly rejects any such relativist approach – ie a deprivation may exist regardless of whether P’s situation is better than it had been previously. Wilson LJ did not comment on this issue at all, and strictly speaking it is obiter (ie outside the core of the Court’s reasoning).
Conclusion
The main development in this case is the move from “purpose” and “reasons” (per Parker J) to an emphasis on issue of the “relative normality” of the placement (per Wilson LJ). This is, with respect, a step in the right direction, avoiding some of the problems persuading people that there can be a deprivation of liberty despite their good intentions, and so the DOLS or Court of Protection process should be invoked where appropriate.
However, the idea that a care regime in the family home which allows “the most normal life possible” will usually not be a deprivation of liberty, may yet prove to be just as problematic. This case was in the context of a family home or small (unregistered) residential home – ie outside the hospitals and (registered) care homes where the Deprivation of Liberty Safeguards would apply – but we foresee an argument that a care regime in a care home or hospital which allows P “the most normal life possible” should not, therefore, be deemed a deprivation. And what do we mean by normal anyway? Normal for P him/herself? Normal for people with P’s disability? Or normal arrangements for people in the particular care home / other environment in question?
The Court of Appeal has offered some useful guidance on what is not relevant (the purpose / reasons for the deprivation, whether P is happy there, and whether P’s situation is an improvement), but we may still be some distance away from a full understanding of the objective deprivation of liberty element. Leave has been given to appeal to the Supreme Court, but we wonder if case law considering the position in a care home or hospital may be more likely to assist, where the Court will not be influenced by the understandable wish not to find a “deprivation of liberty” (with all the pejorative connotations) occurring in the family home.
Related judgments
Re P and Q; P and Q v Surrey County Council; sub nom Re MIG and MEG [2011] EWCA Civ 190
Other
Judgment: 28/2/11
Hearing: 21/10/10
Before: Mummery, Smith, Wilson LJJ
Mr Richard Gordon QC and Miss Fenella Morris (instructed by Steel and Shamash, London SE1) appeared for the Appellants.
Ms Barbara Hewson (instructed by its Legal and Insurance Services) appeared for the First Respondent.
The Second and Third Respondents took no part.
Mr Paul Bowen (instructed by Ms Glynis Craig of the Intervener) made written submissions on behalf of the Intervener but, in accordance with the terms of its Intervention, did not appear at the hearing.