Skip Content
 

News

Inherent dignity of all underpins Supreme Court's characterisation of the deprivation of liberty

21 March 2014

On 19 March 2014 the Supreme Court handed down a landmark decision in the case of P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents); P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent) [2014] UKSC 19.

 

The decision sets out what constitutes a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights (ECHR).

 

The cases concerned the living arrangements made for mentally incapacitated individuals. The ruling, in defining what constitutes a deprivation of liberty is significant, because should the arrangements made for these individuals constitute a deprivation of liberty, they would be subject to independent checks and require authorisation either from a court or through the deprivation of liberty safeguards (DOLS) as set out in the Mental Capacity Act 2005.

 

Also significant is the fact that though the European Court of Human Rights (ECtHR) has established general principles on how to interpret the meaning of Article 5, it has not yet decided a case in which the person without capacity appears content with their care placement and the placement was initially authorised by a court.

 

In finding that the individuals concerned were deprived of their liberty, the Supreme Court set out the parameters of the definition without reference to disability. Instead, the definition centres on whether any action taken, or care provided, represents an intrusion and restriction on the life of the individual concerned.

 

The Court recognised that in certain circumstances restraints may be employed to protect the best interests of the individual – but the decision confirms that even when done in good faith, an action can still constitute a deprivation of liberty. As Lady Hale put it ‘a gilded cage is still a cage’.

 

The inherent dignity of all human beings, underpinned by the universal nature of human rights as protected by international mechanisms including the ECHR and the Convention on the Rights of People with Disabilities (CRPD) was central to the Court’s approach. What would be a deprivation of liberty for a non-disabled person is also a deprivation for a disabled person.

 

The AIRE Centre (represented by Leigh Day and Co) was an intervener in these cases. 

 

Read AIRE Centre Director Matthew Evans’ blog on the Justice Gap for a more detailed look at the ruling.  

 

< Back