Background
SM is a 12-year-old girl with profound and enduring disabilities. She was diagnosed with lissencephaly, a rare congenital condition that causes a developing brain to appear smooth instead of having normal bumps and folds, at five months old. She also has epilepsy, global development delay and scoliosis. She is non-mobile, non-verbal and is fed via a gastrojejunal button, a feeding device is inserted into an opening through the skin to the stomach.
SM cannot leave her bed of her own accord. Her only body control is to be able to push her hands away and to wriggle and roll from side to side. She's moved by her carers from the bed to the floor. She cannot communicate in any form and does not understand language. It's difficult to assess her cognitive functioning, but her mother described her responding like a child of a few months. She does respond to stimuli, and for those who know her well it is possible to tell whether she is responding positively or negatively. All SM’s care needs are met by carers.
The application
Peterborough City Council brought an application seeking the authorisation of restrictive arrangements in place amounting to a deprivation of liberty (DoL) for SM:
- 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
The key issue
The Judge’s view was “whether SM should be subject to a DoLs order at all” as “there are a number of aspects of the above restrictions which do not amount to a deprivation of liberty” and that the restrictions formed “part of SM’s care provision” and “would be the case whether or not SM was severely disabled”.
She sets out that:
“There are many aspects of care which may intrude on an individual’s privacy and autonomy, and which may interfere, albeit with justification, into the scope of Article 8. But they are not interferences with the right to liberty enshrined in Article 5 [sic].”
Cheshire West
We are reminded that “Cheshire West was concerned with the three individuals’ inability to consent to the deprivation of their liberty, and their apparent compliance with the restraints placed upon them. They were all physically capable of leaving the property, and would have been stopped if they had tried to do so. That is not the facts of the present case.”
The Supreme Court’s decision in Cheshire West confirmed for there to be a deprivation of liberty an individual must be under constant supervision and control, and not be free to leave.
Analysis
Mrs Justice Lieven considered that the Supreme Court’s decision in Cheshire West does not “deal with the situation of a child such as SM who is incapable of "leaving" because of a combination of her physical and mental disabilities, not by reason of any restraints placed upon her.” She considered that “there are a number of different ways of explaining why SM is not deprived of her liberty in breach of Article 5, but they all come down to focusing on the reason why she cannot leave where she is living. That reason is her profound disabilities, not any action of the state, whether by restraining her or by failing to meet the state's positive obligations to enable her to leave.”
She considered that “SM was undoubtedly under close supervision and control, but that is not in order to prevent her leaving. The close supervision is to meet her care needs. It does not need to be, and is not, for the purpose of preventing her leaving, because she is wholly incapable of leaving, both because of physical inability but also because she is unable to form any desire or intent to leave. It is simply not a concept of which she has any consciousness”. Mrs Justice Lieven considered that “it is difficult to see how one can be deprived of something that one is incapable of doing. Equally, how can one be deprived of a right that one is incapable of exercising, not through the actions of the State or any third party, but by reason of ones own insuperable inabilities”.
She acknowledged there may be a deprivation of liberty where a disabled person who cannot move without a wheelchair and therefore cannot leave a property without assistance may be deprived of their liberty because they are not free to leave even though they need third party help in order to do so. In that situation, the state may be under an obligation to assist the person in leaving and failing to do so might amount to a breach of Article 5. That is the type of situation contemplated in Cheshire West, however Mrs Justice Lieven determined that that is a wholly different situation from that of SM. SM is both physically incapable of exercising her right to liberty and mentally incapable of asserting it.
Her view was also that “the approach of comparing SM with a non-disabled 12 year old, as an “objective” analysis, is a wholly unreal exercise, and one that leads to a nonsensical result.”
Conclusion
Mrs Justice Lieven concluded that the local authority’s application took the principles set out in Cheshire West “to a logical but extreme conclusion that, in [her] view, defies common sense and is not required by the terms of the Supreme Court decision.”
She refused the LA’s application, deciding that there was no deprivation of SM’s liberty within the meaning of Article 5 ECHR.
She observed that “the need to ensure the universal applicability of convention rights is central to the analysis in Cheshire West, and how the term “deprivation of liberty” is defined. However, that does not mean that where the facts show overwhelmingly that the state is not depriving someone of their liberty the universal quality of the right force the court to a conclusion that defies the facts and commonsense.”
Comment
This unfortunately, does nothing in the short term to clarify to those who are trying to provide guidance to front-line social work and clinical staff as to how properly to discharge their functions both in relation to children and adults with restrictive arrangements in place as part of a package of care.
Coincidentally, on 18 March 2024, the Law Society published its updated guidance on Identifying a deprivation of liberty: a practical guide. This goes some way to assist and confirms that the approach taken in the Peterborough judgment is “difficult to reconcile in a number of respects with the Supreme Court’s decisions in Cheshire West and Re D [In Re D, the Supreme Court held that the principles set down in Cheshire West applied equally to those aged 16 and over and that it is not within the scope of parental responsibility for a parent to consent on their 16 or 17 year old child’s behalf to confinement]. We therefore suggest that, until and unless it is considered further by the appellate courts, it should be approached with caution both as regards children under 16 and, in particular, before applying its reasoning to those to those aged 16 and above whose situations are directly governed by the ratios in those two decisions.”
Unfortunately, it's unlikely that there will be an appeal. But given the stark departure in this case from Cheshire West, there is a real risk that it could be misapplied, leading to a lack of safeguards for those who need them most.
You can read the case of Peterborough City Council v SM here.
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