BIHR intern, Emma Vogelmann, reflects on the landmark ‘Cheshire West case’ and protecting disabled people's right to liberty

 

In the 15 years since the Human Rights Act (HRA) has been part of UK law it has allowed those with mental health and mental capacity issues have a say in their own care and to get the support they need. In a case known as the ‘Cheshire West case’ in 2014 the Deputy President of the UK Supreme Court, Lady Brenda Hale, said:

“The whole point about human rights is their universal character. The rights set out in the European Convention are to be guaranteed to ‘everyone’. They are premised on the inherent dignity of all human beings whatever their frailty or flaws.”

This means that although sometimes our rights might need to be restricted (such as our right to liberty) in order to protect our other rights, we all start from the same point and any restrictions must be lawful.  This was crucial to Peter, a 39 year old man with cerebral palsy and Down’s syndrome who required 24 hour care, who had been placed in supervised accommodation as his mother was no longer able to care for him at home. Staff dressed him in restrictive clothing and occasionally had to intervene when he exhibited challenging behaviour. The case also involved two sisters, Molly and Meg, with learning disabilities. Meg was 17 and was living with a foster mother. Molly was 18 and was living in a residential home. Both were unable to leave their homes alone and would have been restrained if they tried to do so. The court was asked to decide if Peter, Molly and Meg were being deprived of their right to liberty, protected by Article 5 of the Human Rights Act.

 

The Supreme Court ruled that each person’s situation must be looked at individually to determine whether they are being deprived of their liberty. No matter how nice the conditions or care arrangements may be or whether they are in the person’s best interest, we first have to determine whether a person is being deprived of their liberty. As Lady Hale put it:  “a gilded cage is still a cage”. The judges set out a test to help determine in future cases what is a deprivation of liberty: if the person is under continuous supervision and control and not free to leave, they are being deprived of their liberty. In which case a Deprivation of Liberty Authorisation will need to be made, and the safeguards written into the right to liberty in Article 5 of the HRA will kick in. It will then also need to be decided whether the deprivation of liberty is in their best interest.

 

In response to the court’s ruling Mathieu Culverhouse, who represented Peter’s mother, said “Peter's mother welcomes this ruling, as it now gives her the peace of mind that her son's placement will be reviewed regularly to ensure that the restrictions placed on him are appropriate and in his best interests.”

(We have made up the names of Peter, Molly and Meg who were anonymous in the case)