P (By His Litigation Friend The Official Solicitor) v Cheshire West and Chester Council and Another and similar: SC 19 Mar 2014

Deprivation of Liberty

P and Q were two adolescent sisters without capacity. They complained that the arrangements made for their care amounted to an unjustified deprivation of liberty, and now appealed against rejection of their cases. In the second case, P, an adult male, again without capacity, also complained as to the arrangements for his care, and the lack of restraint on the deprivation of his liberty. The Court now considered the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty.
Held: (Lord Clarke of Stone-cum-Ebony, Lord Carnwath and Lord Hodge JJSC dissenting) A person suffering a mental incapacity has no lesser rights to personal freedom than someone with capacity. The appeals of P and Q succeeded. An arrangement which would amount to a deprivation of liberty for a person with capacity is equally a deprivation of liberty of someone without. Any system providing such restrictions must include periodic and independent checks to verify that any such restriction remained necessary and in their personal best interests.
The phrase ‘deprivation of liberty’ when used to apply to living arrangements for a person without capacity was to be construed as providing the same protection as Article 5 of the Convention. Though each case was to be decided as a matter of the particular facts.

Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge
[2014] UKSC 19, (2014) 17 CCL Rep 5, [2014] HRLR 13, [2014] 2 WLR 642, [2014] 2 All ER 585, [2014] WLR(D) 140, [2014] 2 FCR 71, [2014] PTSR 460, [2014] COPLR 313, UKSC 2012/0068, [2014] AC 896, (2014) 137 BMLR 16, [2014] Med LR 321
Bailii, Bailii Summary, WLRD, SC Summary, SC
Mental Capacity Act 2005 64(5), European Convention on Human Rights 5
England and Wales
At CoPA Primary Care Trust v P and Others Misc 21-Dec-2009
(Court of Protection) The court was asked whether, if P could be found to lack mental capacity where he should live, where there was an essential conflict between representatives of the State who owe statutory duties to P on the one hand, and the . .
See AlsoCheshire West and Chester Council v P CA 18-Nov-2011
. .
Appeal fromCheshire West and Chester Council v P CA 9-Nov-2011
The claimant, a disabled adult with cerebral palsy and Downs, asserted that the care plan set out in an order of the Court of Protection involved a contravention of his human rights since it involved a deprivation of his liberty. He was incontinent . .
See AlsoCheshire West and Chester Council v P and Another COP 14-Jun-2011
The patient, an adult without capacity and with Down’s syndrome and cerebral palsy complained of his treatment, when in order to prevent his habit of eating his nappy, they dressed him in an adult babygrow costume. The court was asked whether the . .
CitedP and Q v Surrey County Council CA 28-Feb-2011
The appellant sisters, both with substantial learing disabilities appealed against a declaration that the arrangements made for their care by the respondent did not amount to a deprivation of their liberty. In either case, they would only be allowed . .

Cited by:
AppliedIn re X and Others (Deprivation of Liberty) CoP 7-Aug-2014
The court considered the practical and procedural implications for the Court of Protection of what was expected too be a large increase in its case-load which following the Supreme Court’s decision in Surrey County Council v P where it was held that . .
CitedThe Secretary of State for Justice v MM CA 29-Mar-2017
Power of FTT to deprive patient of liberty
Two patients who had been confined to a secure hospital, appealed against orders which would continue to restrict their liberty upon being conditionally released. The parties now disputed the jurisdiction of the FTT to make such an order.
CitedSecretary of State for Justice v MM SC 28-Nov-2018
The respondent had been detained after conviction for arson, under the 1983 Act, and was liable to indefinite detention in hospital for medical treatment and dischargeable only by the Appellant or the First Tier Tribunal, possibly only as a . .
CitedWelsh Ministers v PJ SC 17-Dec-2018
A patient detained under the Mental Health Act 1983 (MHA) may be released from compulsory detention in hospital subject to a community treatment order (CTO). The question arising on this appeal is whether a patient’s responsible clinician (may . .

Lists of cited by and citing cases may be incomplete.

Health, Torts – Other, Human Rights

Leading Case

Updated: 24 December 2021; Ref: scu.522603