In March 2014 the Supreme Court handed down a landmark judgment recognising the right of disabled people to the protections afforded by Article 5 of the European Convention on Human Rights. Article 5 of the Convention gives people deprived of their liberty procedural safeguards to ensure their deprivation of liberty is lawful. Until now, incapacitated individuals have not necessarily always been accorded such Article 5 rights.
Over the years, the courts have considered cases concerning the circumstances of individuals without the capacity to consent to their deprivation, or ‘mentally incapacitated’ people. However, until the recent judgment, there had been no clear test for when an incapacitated person fell within Article 5.
For example, the cases of two sisters with severe mental impairments and the case of a man with severe learning disabilities were considered by the courts from 2009 to 2014 (more details on their particular circumstances can be found here.
In the lower courts, it was decided that the living arrangements of the two sisters did not constitute a deprivation of liberty, whereas the man’s living arrangements did. The cases went to the Court of Appeal who found the opposite: that none of the three individuals fell within Article 5. Finally, when the cases reached the Supreme Court in October it was held all three were deprived of their liberty and consequently that detention had to be authorised and regular checks had to be in place to ensure the deprivation was lawful. This means checking that the individuals were being looked after in the least restrictive way possible and they, or someone acting on their behalf, could regularly seek review from the court of their situation.
Up until the judgment of the Supreme Court there had been much confusion over what constituted a deprivation of liberty for someone without capacity. It was hoped that the judgment would provide clarity, which it indeed has done in this historic decision. The court has provided a new test for deciding if a mentally incapacitated person is deprived of their liberty and it simply comes down to whether they are under constant supervision and control and whether they are free to leave their placement. The judgment only applies to placements arranged by the state, which include hospitals, state run care homes, supported living and foster placements.
In addition, the Supreme Court set out a number of factors that are now irrelevant. For example, it no longer matters if those arranging the placement have the best of intentions for the individual, as Lady Hale said in her judgment, “a gilded cage is still a cage”. Similarly, it does not matter whether the individual is compliant with their placement or not. The Court stressed the universality of human rights, applying to disabled and non-disabled alike.
Anyone deprived of their liberty must have that deprivation authorised (either by a court or local authority). If this does not happen, they are unlawfully detained. If someone is unlawfully deprived of their liberty, they are able to seek a declaration that their Article 5 rights have been breached and obtain compensation for the period of time in which they have been unlawfully detained.
The potential scale of those deprived of their liberty following on from the judgment is unknown, but to date there are indications it could be in the region of thousands, if not tens of thousands, of people.
The current safeguards provided for by Parliament for individuals in care homes and hospitals, known as the Deprivation of Liberty Safeguards, are no longer fit for purpose and require comprehensive legislative reform. There are currently no similar safeguards for people in supported living or foster care placements, and the only way for these individuals to have any deprivation of liberty authorised is through the Court of Protection. It is therefore hoped that a new legislative framework will be drawn up that will apply to all individuals who lack capacity to choose where to live and that this framework will be easy to understand and apply, and will protect the rights of one of the most vulnerable groups in our society.
Sarah Westoby is a solicitor in the human rights team at Leigh Day and specialises in deprivation of liberty and Court of Protection work. If you or someone you know is affected by these recent changes in the law, please contact Sarah to discuss whether we can do anything to assist.