Tuesday 15 November 2011

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Cheshire West and Chester Council v P (by his litigation friend the Official Solicitor) [2011] EWCA Civ 1257 (Pill LJ, Lloyd LJ, Munby LJ): the Respondent was a 39-year old man with cerebral palsy, Down’s syndrome and significant physical and learning disabilities. He was placed in a care home after his mother was no longer able to care for him. The issue for the Court was whether the circumstances of his placement amounted to a deprivation of liberty. Baker J at first-instance had held that there was a deprivation of liberty and that it was in P’s best interests to continue to reside at the care home. The local authority appealed. Munby LJ, giving the lead judgement with which the other two Lord Justices agreed, extensively reviewed authorities relating to Article 5 and deprivation of liberty. He held that the starting-point as to whether there was a deprivation was the concrete situation, taking into account the type, duration, effects and manner of implementation of any measure under scrutiny; restraint itself is not a deprivation of liberty; account must be taken of the individual’s whole situation; context is crucial; lack of capacity to consent to living arrangement cannot in itself create a deprivation of liberty; and it is legitimate to have regard both to the objective reason why someone is placed and treated as they are and to the objective purpose. Subjective motives have only limited relevance. An improper motive may have the effect that what would otherwise not be a deprivation of liberty is in fact a deprivation. A good motive cannot render a deprivation of liberty innocuous. Good intensions are essentially neutral. It is always relevant to asses the “relative normality” of the concrete situation. In cases that come before the Court of Protection, the comparator when assessing “relative normality” is an adult of similar age and same capabilities, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations as the adult concerned in proceedings. A domestic setting can involve a deprivation of liberty, depending on the context, but not typically. On the facts, despite the fact that P could be subject to physical restraint in order to deal with his challenging behaviour, there was not a deprivation of liberty. The care home was providing “a strong degree of normality” for P. The appeal was upheld. Click here for the transcript.

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