Essay on liberty deprivation

Jun 26, 2017 | 0 comments

Jun 26, 2017 | Miscellaneous | 0 comments


The paper will critically analyze the court decisions concerning the mentally incapacitated persons. The case is all about the judging criteria whether the arrangements for living made for the person who is mentally incapacitated amount to liberty deprivation. If they do, then authorization of the deprivation has to be made either by a court, or through the known procedures as the safeguards of liberty deprivation, as expounded in the Mental Capacity Act.[1] However, if they do not, no conducting of independent checks whether the arrangements are in the area for the mentally incapacitated person’s best interest. Although the social and health care bodies who often make the arrangements do so in the belief and hope that can be devised practicably. This is not to criticize them if the safeguards are needed, but just a recognition that human rights caters for everyone; and that also includes the community’s most disabled members, and that the rights also include the same liberty rights as everyone else.

  1. P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents)
  2. In this case, the court was to make a determination o the correct approach for determination whether under Article 5 of the Human Right European Convention[2]; a person is deprived of his liberty rights. In application of the approach, the court made a determination whether P was deprived of his liberty
  3. P has severed learning and physical disabilities and is aged thirty nine years and therefore in making decisions, as to his residence and care, he lacks the mental capacity. Pursuant of the court order, he was placed in 2009 in Z house. There was no dispute about his Z house package between the parties as it was in his best interest. However, the only disagreement between the parties was whether the Z house package imposed restrictions upon P that deprived him of his liberty, which engaged under the Article 5 of the ECHR’s protective procedural rights.[3]
  4. Z house is single-level spacious and large bungalow and P had access to two bathrooms and his own rooms. Furthermore, he continued attending a day center four times a week, and on the fifth weekday the hydrotherapy pool, where he used to leave the Z house at 9.30am up to 5.00pm when returns back. Similarly, was being supported to access the leisure ad community facilities by the staff, for instance, visiting his mother and trips to town.


On the other hand, P has a long history of shredding and putting his continence pads into his mouth. Several techniques have been applied to solve the problem. Methods that are non physical have been attempted and included dressing him in an onesie with a zip at the back for access. However, sometimes the members of staff have to opt for physical interventions such as insertion of fingers into P’s mouth to get out the materials.

  1. P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent)

In this next case, the Supreme Court was to decide how it should make a determination whether there was liberty deprivation for the Mental Capacity Act 2005[4] purposes. By the time of the first judgment instance, P and Q were sisters aged 18 years and 17 years and both were severely impaired mentally.

Both of them until 2007 lived with their mother where their lives were abusive and dysfunctional. By the time of the first hearing instance, P was residing with a foster carer. On the other hand, Q was residing in NHS children’s home that is special. The court restricted contact of P and Q with their mother and were also not permitted by the court to live with her.

At the foster carer’s home, P had a bedroom of her own where the door of the bedroom was never locked, moreover, P has never attempted to leave and in the instances where she attempted, the foster mother restrained her just for her safety. She was being taken for outings and she also attended college, but she was not receiving medication.

At the children’s home, Q was allocated her own bedroom. Occasionally she also suffered outburst that required physical restraints sometimes. Furthermore, to control her anxiety, she was being treated with a medication called Risperidone.[5] She was also being taken to outings and was attending a college.

What is liberty deprivation?

Under the Human Rights Act 1988[6] cases, the courts have to consider frequently, in section 2(1)[7] how far their duty in taking into account the Court of Human Rights and the European Commission’s jurisprudence goes. In these cases, the difficulty is not a troubling. The Mental capacity Act section 64(5)[8] states that in the Act, in reference to a person’s liberty deprivation has the same meaning as in the Human Rights Convention Article 5(1).[9] Because the main objective was to avoid the identified violation in HL 40 EHRR 761,[10] it therefore seems clear that the expectations were to turn the Strasbourg’s court’s jurisprudence and to find out the meaning of liberty deprivation in this context.

The paper will summarize the general principles in the perspective of persons with mental disabilities or disorders.  According to Susan Varghese et al,[11] in determining whether an individual has been deprived of his or her liberty, analysis should begin at his or her concrete situation and include the whole criteria such as duration, type, manner and effects of implementation of the measures that are in question.

Secondly, Robin and John[12] stated that in the deprivation of liberty context on grounds of mental health, the courts could held that a person can be considered as having been “detained” including the duration when he was in the open ward of the hospital with the frequent unescorted access to the hospital grounds that are unsecured, and the unescorted leave possibility outside the hospital.

Thirdly, Slobogin[13] argued that in relation to the mental disordered persons placements in an institution, liberty deprivation does not only include the objective element of confinement of a person in a specific space restricted for not a given length of time. An individual can only be regarded to have been deprived of their liberty if, he has not consented validly, as additional subjective element, to the confinement.

Fourthly, Elliott[14] explained that liberty deprivation also applies in the following cases;

  1. Where the applicant legally declared incapable and admitted, at the request of his legal representative to a psychiatric hospital, had attempted unsuccessfully to leave the hospital
  2. Where initially the applicant had consented to her admission to a clinic but had attempted to escape subsequently
  3. Where the adult applicant is incapable of providing his admission consent to a psychiatric institution which, nevertheless, he had never made an attempt to leave.

Therefore, the case law of Strasbourg has some clarity in some respects in others but not all. So far, the court has not dealt with a case that combines the following case features;

  • An individual lacking both factual and legal capacity to make a decision upon her or his placement, buy who has not demonstrated  objection to it or dissatisfaction
  • A placement in a domestic setting or a small group, but not in in a social care home or a hospital, which is morels close or similar to a normal life at home
  • The initial authorization by courts of placement as being in the best interest of the concerned persons. Of course, the issue here is whether that authorization by the courts will indefinitely continue or whether there should be some independent periodic checks upon the placements made whether they are in the best interest of the concerned people.

Critical analysis

To begin, the most fundamental   question is whether the physical liberty concept that is protected by Article 5 applies equally to every person regardless of whether or not they are physically or mentally disabled. In a scenario of P’s case, I believed this concept did not apply because the trial judge failed to grapple with question whether the restrictions and limitation on

The life of P at the Z house is anything more than consequences that are inevitable of his various forms of disabilities. To be honest, the truth is that they are not because the disabilities of P, he is restricted inherently in the kind of life that he can lead. The life of P in any place he may be living  be it  at home with a friend, family or in any place like the Z house is dictated by his difficulties and disabilities (Para 110).

Similarly, in the case of P and Q, the life of a person had to be compared to another person’s life with the same characteristics. For some people, what was a liberty deprivation might not be the others deprivation.

The given answer by Mr. Richard Gordon QC, that appeared to be instructed by, on behalf of all the other three appellants by the official Solicitor, confuses the deprivation of liberty concept with the justification for imposition of such a deprivation. Individuals who lack the capacity to implement of make their own decisions concerning where they should live may be deprived justifiably of their liberty in the best interest of their own.[15] Great Britain[16] added that they may be a good deal happier, and looked better after if they are. This does not mean that the individuals have been deprived of their liberty. Furthermore, confusion should not be made on the question of the arrangements quality, which has been made with whether the arrangements constitute liberty deprivation.

Similar to the argument of “inevitable consequences,” Cohen[17]suggested that an individual cannot be deprived of his or her liberty if he or she lacked the capacity of understanding or objecting to his or her situation. It is quite clear that in any event that an individual may be deprived of his liberty without him or her knowing it. For instance, a sleeping person or an unconscious person may not be in a position to know that he is locked in a room or a cell, but still he has been liberty deprived. Reisner and Christopher[18] also gave an example that a person who is mentally disordered and has been kept inside a cupboard under stairs may not be in a position to appreciate that there exists any other alternative way to live, but in essence, he has been deprived still his liberty.


It is self evident that the disabled people both physical and mental have the same human rights just like the rest of the human race. Sometimes it may be that the rights have been restricted or limited because of their disabilities, but all in all it should be the same just like those of everyone else.[19]

These rights according to Wildeman[20] include the physical liberty right that is guaranteed by the European Conventions’ Article 5. This as ICECHRCE [21] stated is not a right to go where or do what pleases one, rather it is a right more focused, not to be deprived that physical liberty. However, Philp[22] argued that to be deprived of liberty means it must be the same for everybody whether they have or not the mental and physical disabilities. If to a normal person it would be liberty deprivation if they are obliged to live in a specific place, subjected to constant control and monitoring, allowed out only with supervision, and are unable to move away without being permitted, then must be also a deprivation of the disabled persons liberty.[23]

For that reason, this article reject the approach of “relative normality” of court of appeal in the case of P, where the life he was leading was compared with the life of another disabled person might be leading. The approach to some extend was premised on the purpose of and reason for the placement (Para 76). This is inconsistent with the general view that the disabled persons have the same rights just like any other person.[24] Moreover, there is much more sympathy with “relative normality” approach adopted by the appeal court in P and Q where the kind of lives which P and Q were compared with the ordinary lives of the teenagers of their ages might be living with their families. However, as much as this seemed to be human and sensible, the facts remains that the kind of lives which P and Q were living was not the same as those which the teenagers of their age would be living. The comparative normality by the court of appeal in their basis of “homelike”quality does not address the question of whether it involved liberty deprivation where the state bore the responsibility.[25]

The cases were not about the distinction between freedom of movement restriction, and the liberty deprivation. P, Q and P have no freedom of going anywhere without close supervision or permission

The application in the P’s case

In the p’s case, the decisions of the judge should not have been set aside by the Appeal Court for their provided reasons. In the judgment paragraph 46, the judge directed himself correctly as to the liberty deprivation three components. The judge reminded himself that the difference between the restriction and deprivation of liberty is one of intensity or degree rather than substance or nature.[26] Furthermore, he held that the main factor is whether the individual is not or is free to leave. Gostin et al[27] elaborated that this may be tested by making a determination whether those managing and treating patients exercise effective and complete control of the movements and care of the person (Para 46(5)). However, when he made considerations of the circumstances in the life of P at the Z house, the judge remarked (Para 58) that “upon the great care undertaken by the staff of Z house and the  local authority to ensure that the life of P was as normal as possible.” In (Para 59), the judge continued “his life, on the other hand, is completely under the control of the Z house members of staff. He cannot do anything or go anywhere without their assistance or support. More particularly, his aggressive behavior that is aggressive and the worrying habit of eating and touching his continence pads, which require many measures including physical restraint at times, and when needed, the intrusive procedures such as insertion of fingers into his mouth while being restrained.”

According to this article, the judge in substance was applying the right test and his conclusion in overall looked at P as being deprived his liberty should be restored (para 60).

Application in the P and Q case

The judge found the case of P the lady difficult and therefore concluded that she has not been deprived of liberty (Para 34).[28] The judge relied upon the small size of her adolescent home, her attendance  at  school, her lack of life objection there, her good contact of the family, and her active social life. However, there is much difficulty in seeing how her case can be differentiated from that of P of the Z house, at had all the features. P the girl did not require the kind of restraint which P of the Z house needed because of the incontinence pads, but sometimes she required physical restraint and  also medication for controlling her anxiety. Generally, the staff exercised control in her life’s every aspect. She was not being allowed out without their supervision, do things they do not want or even see people they do not want her to see.[29]

The case of Q was different in one aspect in that he was residing in an ordinary home, attending an educational unit and enjoyed good contact of the family. The reality, however, is that in the situation of Q was similar to that of her sister P. The people responsible for her care including the foster mother exercised complete control on her life.  She was not allowed out without supervision, do things they do not want or see whom they do not want her to see.[30]


In conclusion, it is easy to focus on the positive nature  of the placements of P,P and Q. there is no doubt the local authorities responsible  for then did the best for them to make their lives safe, fulfilled and happy. However, Article 5 ensures no one is deprived of their liberty without safeguards that are proper, will secure the legal justification for any constraints. The subjects have no capacity to decide for themselves and therefore, any arrangements made are in the best interest for them.

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