Cheshire West and Chester Council V P & M (2011)
The Court of Appeal has today handed down the second in what is expected to be a trilogy of judgments on the complex question of what constitutes a deprivation of liberty within the context of the Mental Capacity Act 2005, particularly in respect of those in supported living (MIG and MEG was the first and RK will be the third). In Cheshire West and Chester Council v P & M, the Court overturned Mr Justice Baker’s decision in the Court of Protection on the engagement of Article 5. He decided it was engaged i.e. P was deprived of his liberty but the Court of Appeal have decided that it was not.
In the lead judgment, Lord Justice Munby has given new guidance on how to identify whether Article 5 is engaged in Court of Protection cases. He spends considerable time analysing the role of reason, purpose and motive on the question as to whether there is a deprivation of liberty. Reason and purpose are to be seen in an objective context and are, therefore, relevant whereas motive is subjective. Insofar as motives are full of good intentions they are essentially neutral considerations. He has also introduced the notion of a ‘comparator’ when considering the concrete situation of the person concerned i.e. when deciding whether a person is deprived of his liberty, his situation must be compared with another person with similar disabilities and not just the ordinary person. These are complex issues which will need a more considered analysis later. The full judgement is available here.
Whilst this judgment (the best effort by the Court of Appeal so far on this issue) demonstrates cogent intellectual analysis and contains much helpful guidance, it has the potential for unfortunate unintended consequences. A person in supported living who lacks capacity to make decisions as to where he lives could have all his actions fully dictated by the state i.e. the Local Authority. Those who are subject to those regimes will have no effective right of challenge to the way their liberty is curtailed. This should be contrasted with somebody detained under the Mental Health Act 1983 who has not only a right of appeal but regular statutory referral to a Mental Health Review Tribunal if no appeal is lodged. This judgment, taken to its logical conclusion, could subvert the purpose of the Mental Capacity Act altogether and lead to implementation of restrictive regimes in a way that discriminates on the basis of the perceived lower expectations of those suffering from mental disorder.
odonnells solicitors were instructed throughout by the Official Solicitor, as was Simon Burrows of Counsel. He was led by Richard Gordon QC in the Court of Appeal. An appeal to the Supreme Court is being considered.