_DSC0356On 21 October 2013, the Supreme Court will start hearing argument on what constitutes a “deprivation of liberty” within the meaning of ECHR, art 5, in the case of P v Cheshire West. The appeal is brought on behalf of a mentally incapacitated adult by the Official Solicitor.The issue can be traced back to HL v UK (2005) 40 EHRR 32, when the European Court of Human Rights found that caring for a person in conditions which objectively deprived him of his liberty and to which he lacked the capacity validly to consent violated art 5. That decision had two consequences. First, it led to a rapid increase in the number of art 5 claims in domestic courts. Second, it led to labyrinthine series of amendments to the Mental Capacity Act 2005 which were designed to achieve a balance between safeguarding the rights of those unable to speak for themselves and avoiding over-judicialisation of the process.

The Cheshire West case concerns a man with cerebral palsy and Down’s syndrome who lacked capacity to make decisions about his care and residence. His carers needed to manage his challenging behaviour. In particular, he had developed a habit of pulling apart his continence pads and putting soiled pieces into his mouth. Staff responded to this by restraining him and removing the pieces from his mouth and using a body suit that limited his access to the pads.

At first instance, Baker J held that, objectively, this amounted to a deprivation of liberty. His decision was reversed by the Court of Appeal, which held that the question of whether there was an objective deprivation of liberty required consideration of the relative normality of the incapacitated person’s situation, compared to a person with similar physical and mental disabilities. In P’s case, his life was so inherently restricted by his condition that the restrictions imposed on him did not amount to a deprivation of liberty. The Court of Appeal’s judgment has been criticised by some as putting a relativist gloss on an objective test, influenced by the number of art 5 cases being brought.
The Court of Appeal gave judgment on 9 November 2011. The Supreme Court’s decision has been eagerly awaited by Court of Protection judges and practitioners ever since. It will also be of wider interest, given that it touches on issues considered in, for example, the kettling and control order cases.