The Supreme Court gave judgment in P v Cheshire West & Chester Council & Ano’r and P & Q v Surrey County Council on 19 March 2014.

The cases concerned the circumstances in which a person in care will be regarded as having been deprived of their liberty for the purpose of the Deprivation of Liberty safeguards in the Mental Capacity Act A2005. Under the Act, any deprivation of the liberty of a person lacking mental capacity must be justified by the authority which is taking them into care. Because the process of justification can be onerous, care authorities have preferred to define a deprivation of liberty in very narrow terms.

Although no case with the same specific circumstances as in P v Cheshire and P&Q v Surrey had as yet been seen by the ECHR in Strasbourg, the Supreme Court felt able to apply the principles derived from other cases which had been decided in Strasbourg. Those principles are as follows:

1) There is a two-stage process under which firstly it is determined whether there has been any deprivation of liberty and secondly, if there has, whether that deprivation can be justified. Therefore the justification itself is irrelevant in determining whether a deprivation has occurred.

2) In the case of a person lacking mental capacity their compliance or lack of objection cannot be taken as evidence that there has been no deprivation of liberty. A person who lacks mental capacity cannot be regarded as having validly consented to their confinement.

3) The valid comparison is with a person of full capacity, of the same age and similar station in life. If the circumstances would constitute a deprivation of liberty for them, they do for a person who lacks capacity.

4) Freedom to leave means the freedom to go and live somewhere else, not just the freedom to go on supervised day-trips.

5) The physical openness of the place of confinement and the fact that the person could just walk out and leave are irrelevant if the person believes they are not free to do so.

6) The quality of the care, the necessity of it and the benevolence of the regime are irrelevant. “A gilded cage is still a cage” said Lady Hale, in perhaps the most memorable phrase in the judgement.

The appeals were upheld; the appellants had been deprived of their liberty.

It is likely that, as a consequence of this, care authorities will be obliged to justify deprivation of liberty in considerably more cases.