A landmark deprivation of liberty case
15th August, 2024
The case of SM (Peterborough City Council v Mother & Ors [2024] EWHC 493 (Fam) (06 March 2024)) is a potentially significant deprivation of liberty case.
Background
SM is a 12 year old girl who was diagnosed with Lissencephaly (a rare condition that causes a developing brain to appear smooth) at 5 months old and has epilepsy, global development delay and scoliosis. SM is able to push her hands away and to wriggle and roll from side to side and responds to stimuli but is essentially non-mobile and is non-verbal. SM lives with foster carers who provide her with a high quality of care and was made subject to a final care order on 29 October 2022. Accordingly, the local authority applied for a deprivation of liberty order and authorisation of the following restrictions:
- SM is supervised 1:1 in the home at all times either by a physically present person or by remote live only video feed;
- SM is moved by her carers as appears reasonable or necessary to meet her welfare needs;
- SM’s feeding and administration of medicine is managed by her carers through her gastrojejeunal button as appears reasonable or necessary to meet her welfare needs;
- SM is dressed and undressed, washed and her needs arising from her incontinence are managed as appears reasonable or necessary to meet her welfare needs;
- SM’s bed has bars on the side to prevent her moving while in bed so as to fall and injure herself;
- SM is supported outside of the home at all times, with up to 2:1 supervision to ensure her safety and ability to mobilise as appears reasonable or necessary to meet her welfare needs;
- External doors to the property are kept locked for the purpose of ensuring the integrity and security of SM’s home.
Judgment
In Cheshire West the Supreme Court concluded that a disabled person is deprived of their liberty even if they are wholly compliant with the regime imposed upon them. The test for whether there is a deprivation of liberty adopted in Cheshire West was whether the individual was under constant supervision and control and not free to leave.
The individuals in Cheshire West were all physically capable of leaving and would have been stopped if they had tried to do so. Considering whether an individual is deprived of their liberty must always be fact specific and in Cheshire West it was self-evident that they were not free to leave because of actions taken or inaction of the state.
SM’s case is differentiated because SM is under constant supervision and control, via (1) to (5) set out above, to meet her care needs rather than to prevent her leaving. SM is not capable of leaving because of her physical and mental disabilities as opposed to because of any restrictions or failure to enable her to leave.
The test to be applied is the test of constant supervision and control and not being free to leave rather than necessarily comparing SM with a non-disabled 12 year old. In most cases an objective consideration would be very useful and has been appropriately applied in many cases. The court noted that the approach has not been applied on similar facts.
It was concluded that comparing SM to an able bodied 12 year old was not an appropriate comparator because there is a material difference in that SM is under the constant supervision and control. The approach of objectively comparing SM to a non-disabled 12 year old was rejected.
Given the fundamental importance of protecting liberty there may be good reason to apply a strict approach to Article 5 in respect of disabled people. However, it was concluded that a discrimination argument does not, on the facts of SM’s case, assist. This is because in a case where the state is, on the facts, not depriving someone of their liberty it is not appropriate for the court to continue to universally apply that person’s convention rights and conclude otherwise.
As noted by the court whether an individual is deprived of their liberty must always involve a fact specific consideration and the tests must be applied to everyone. Whether a person is deprived of their liberty may differ depending on the circumstances of the individual. In this case the court found that there is no deprivation of SM’s liberty within the meaning of Article 5 ECHR and refused the application.
Takeaway
The conclusion in this case is fact specific and should be treated with caution, particularly when considering those over 16 when Cheshire West and Re D will apply, and until there is further authority, great care should be taken by public bodies before they conclude that there is no deprivation of liberty to be authorised.
For further information, please contact James Wood or one of our specialist health and advisory care lawyers.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
This page may contain links that direct you to third party websites. We have no control over and are not responsible for the content, use by you or availability of those third party websites, for any products or services you buy through those sites or for the treatment of any personal information you provide to the third party.
