‘A gilded cage is still a cage’ — the Supreme Court determines the question of what is a deprivation of liberty

In its long-awaited judgment, the Supreme Court has given its guidance on the proper test to be applied when deciding whether or not a person is being deprived of their liberty.

As readers may recall, the appeals were in respect of P and Q (previously known as MIG and MEG), and P, MIG and MEG had learning difficulties and had been taken into local authority care. MIG lived with a foster mother and MEG lived in a care home. P had cerebral palsy and Down’s syndrome and lived in a supported living placement. The question was whether any of these individuals were being deprived of their liberty for the purposes of article 5 of the European Convention on Human Rights. If so, they are entitled to procedural safeguards.

The Supreme Court decided that the factors to be taken into account in determining whether someone’s living situation amounts to a deprivation of liberty does not include: the ‘relative normality’ of the living conditions; their apparent compliance with the arrangements; or the purpose of the arrangements are in the person’s best interests…

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