The Supreme Court yesterday ruled on what constitutes a deprivation of liberty for people unable to consent to their detention.
The judgment, following a three-day hearing in October 2013, will impact significantly on people unable to make certain decisions including those with autism, brain injuries, dementia and learning disabilities.
The Supreme Court was asked to set out the criteria for judging whether the living arrangements made for a person in local authority care amount to a deprivation of liberty.
In a majority verdict, the Court ruled in favour of 'P' and 'Q', finding that living either in supported accommodation or in foster care is a deprivation of their liberty. Accordingly, the Court held, this deprivation would require periodic independent review.
Any deprivation of liberty must be authorised by a court or by the Deprivation of Liberty Safeguards, as laid out in the Mental Capacity Act 2005.
In ruling Lady Hale observed:
[...] what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.
The judgment provides for additional protection for those in local authority care.
