Liberty judgments could provide safeguards for thousands

Thousands of disabled people should now receive regular reviews to ensure that they are not being deprived of their liberty by health or social care professionals, thanks to two keenly-anticipated Supreme Court decisions.

The court found unanimously that a 39-year-old disabled man – known as P for legal reasons – had been deprived of his liberty by being removed from his mother’s home and taken into the care of social services when her health deteriorated.

Although P’s mother eventually agreed that he should move into the council’s care, she argued that his placement in a staffed bungalow deprived him of his liberty and so needed to be authorised by the court.

In another Supreme Court judgment published at the same time, the seven justices found – although only by a majority of four to three – that two sisters, P and Q, one of whom was in foster care and the other in a residential home, had also been deprived of their liberty.

The court reached these decisions – which overturned earlier rulings by the court of appeal – even though all three disabled people appeared “content” with their care placements.

Baroness Hale, who gave the main judgment, concluded that all three – each of whom lacked capacity to make decisions about their own welfare – were being deprived of their liberty because they were obliged to live in a particular place “under continuous supervision and control”, and were not free to leave their homes or move away without permission.

Baroness Hale said that disabled people “have the same human rights as the rest of the human race” and so the state had a “duty to make reasonable accommodation” to cater for their “special needs”.

She said that “what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities”, and that the law should “err on the side of caution” in deciding what constituted a deprivation of liberty.

She said: “They need a periodic independent check on whether the arrangements made for them are in their best interests.”

But she said these checks should not be seen as “stigmatising” in any way, but were instead “a recognition of their equal dignity and status as human beings like the rest of us”.

The Equality and Human Rights Commission, which intervened in the case and welcomed the rulings, had argued that disabled people “do not have fewer rights because of their impairments and were in need of special protection given the vulnerability of their situations”.

The commission told the court that public bodies have “a positive duty to investigate if they think a person might be deprived of their liberty and to seek the authorisation of the court where there is doubt”.

It also argued that the “quality of their care arrangements” cannot be used to decide that there has been no deprivation of liberty.

Paul Farmer, chief executive of the mental health charity Mind, said the judgment provided “much-needed clarity on a hugely complicated issue”.

He said: “We know that there is widespread confusion about deprivation of liberty, leaving thousands of people with mental health problems and learning disabilities at risk of having their basic rights violated.

“We now have a test that can ensure deprivation of liberty is assessed in a fair and consistent way, which will help give people the proper safeguards when they are at their most vulnerable.”

Mathieu Culverhouse, from lawyers Irwin Mitchell, who acted for P’s mother, said: “The Supreme Court has provided a simple test to decide if the individual is deprived of their liberty, which will be far easier to apply than the previous test and which will afford far greater protection to vulnerable people.

“P’s mother welcomes this ruling, as it now gives her the peace of mind that her son’s placement will be reviewed regularly to ensure that the restrictions placed on him are appropriate and in his best interests.”

The independent reviews will come through the system of deprivation of liberty safeguards (DoLS), or a Court of Protection order.

Only last week, a report by a House of Lords scrutiny committee concluded that the DoLS system was “not fit for purpose” and should be replaced.

The peers’ report said DoLS were often not being used when they should be and that tens of thousands of disabled people were being deprived of their liberty without the legal protection intended by parliament.

A Department of Health (DH) spokeswoman said the Supreme Court judgments would be considered by DH and the Ministry of Justice alongside the House of Lords report.

She said: “Obviously, the DoLS is something we will be considering very carefully as far as funding goes.”

She said the government would respond to the House of Lords report by the end of June.

20 March 2014