At first this appears a very straightforward question, it conjures up images of being physically restrained, held against your will. What if no one can establish what your wishes are, what if there is no need to physically restrain you as you tacitly agree to be there? Or the other extreme where you have to be restrained for your own protection or the protection of others?
These questions are much more difficult to answer however are presented to carers, social workers and medical professionals on a daily basis. This resulting in a number of cases being brought here in the UK and to the European Court of Human Rights, cumulating in the recent appeal cases of P v Cheshire West and Chester Council and another and that of P & Q v Surrey County Council. The leading Judgment was given by Lady Hale who thought it important that an attempt be made to provide some clarity and certainty to those providing care to vulnerable adults while maintaining the same standard of human rights (and in particular the right to liberty) to such vulnerable adults.
Lady Hale considered the starting point when considering deprivation of liberty is that human rights are universal and apply equally to everyone. No consideration should therefore be given to the individual’s personal circumstances when questioning whether they have been deprived of their liberty. Therefore the fact that they suffer from any sort of disability is irrelevant. Lady Hale relied on the test set out in HL v UK that a deprivation of liberty will exist where the person concerned “was under continuous supervision and control and was not free to leave”. She acknowledges that some vulnerable adults may not be aware that they are in fact restricted in any way or may never have attempted to leave their care setting. This does not negate the fact that their liberty may be restricted.
Lady Hale is of the view that this should be the basis for considering any question of deprivation of liberty as the purpose of article 5 of the Human Rights Act is to ensure that no one is deprived of their liberty without proper justification and safeguards being in place. It is central to article 5 that this is considered in the correct order; Lady Hale expressed this as “It is to set the cart before the horse to decide that because they do indeed lack capacity and the best arrangements have been made, that they are not in need of those safeguards”. She considered it important that even where a justification was established that “periodic independent checks” were made of the arrangements in place.
Guidelines have been attempted by the Autistic Society and MIND to set out what amounts to a deprivation of liberty and while referred to in Lady Hale’s Judgment they have not been held to be exhaustive by the Court. It is expected that the Court of Protection will shortly provide guidance on applications which are out with the existing Deprivation of Liberty Safeguards however the anticipated rules or guidance on deprivation of liberty and vulnerable adults has not been addressed and it may be that a we have to wait for the European Court of Human Rights to undertake this task.