Deprivation of liberty: current approach leaves vulnerable clients with limited protection

By Laura Davidson

In P and Q v Surrey County Council & Others [2011] EWCA Civ 190, the Court of Appeal approved Parker J’s suggested new ‘relative normality’ test for assessing whether or not someone was being deprived of their liberty. If someone’s disabilities and difficulties necessitate assistance which is a significant interference in their life regardless of where they reside, then they are living a relatively normal life ‘for them’. Thus the circumstances are unlikely to amount to a deprivation. This concept purports to emanate from Engel v Netherlands (1976) 1 EHRR 647, despite its focus on the limitations of the army regime upon a soldier’s lifestyle, rather than a person’s individual characteristics (see ‘Turning back the clock’, SJ Vol. 156, No. 22, 10–13).

In Cheshire West & Chester Council v P [2011] EWCA Civ 1257, the Court of Appeal relied on Engel as authority for the need for a comparator when deciding whether restrictions upon someone’s liberty might amount to detention. Since the relevant comparator in Engel was not a civilian, but another soldier who was not subject to the penalty or measure in question, the Appellate Court held that ‘in the case of an adult with disabilities, the relevant comparator is an adult of similar age with the same capabilities and affected by the same condition or suffering the same inherent mental and physical disabilities and limitations’. The type of circumscribed life led by P was the benchmark to be used ‘to assess how far he is nonetheless able to pursue a normal life’. The judge at first instance had failed to grapple with ‘whether the limitations and restrictions on P’s life at Z House are anything more than the inevitable corollary of his various disabilities’. P’s life did not differ from that led by ‘anyone with his concatenation of difficulties could normally expect to lead, wherever and in whatever kind of setting they were living’…

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