On 19 March 2014, a 7-Panel Supreme Court gave judgment allowing the appeals of P v. Cheshire West and Cheshire Council (7-0) (‘Cheshire’) and P &Q v. Surrey County Council (4-3) (P&Q) against judgments of the Court of Appeal (with a different constitution in each case) that none of the 3 Appellants, who lacked the capacity to make relevant decisions for themselves, had been deprived of their liberty by being placed in a benign residential care setting.
Lord Neuberger described the cases as raising issues which were ‘both difficult and important.’
The Appellants argued successfully that each Court of Appeal had erred in law in its treatment of deprivation of liberty under Article 5 ECHR.
In P&Q the error was that of deciding what constituted deprivation of liberty in relation to those lacking capacity by reference to a concept of ‘ relative normality’ (i.e. by consideration of whether the social care placement enabled the person to live a relatively normal life taking their incapacity into account). In Cheshire the Court of Appeal had erred by looking for a relevant comparator (i.e. comparing the position of a person with a similar level of incapacity).
In a landmark judgment the Supreme Court allowed the three appeals. It ruled that although there was no Strasbourg case that had gone as far as the facts of the present cases, each of the Appellants had been deprived of their liberty. This was because (per Baroness Hale) the concept of physical liberty protected by Article 5 is the same for everyone, regardless of whether or not they are mentally or physically disabled.
The judgment is here.
The Supreme Court YouTube summary is here.
Richard Gordon QC acted for the successful Appellants on behalf of the Official Solicitor.