What is deprivation of liberty? The Supreme Court speaks
The Supreme Court has overturned the Court of Appeal in the cases of P (by the Official Solicitor) v Cheshire West and Chester Council, and P & Q (or MIG & MEG) (by the official Solicitor) v Surrey County Council  UKSC 19. In what is the most far-reaching human rights case heard in the UK for a decade, the Supreme Court reversed the Cheshire West decision by seven Justices to zero and the Surrey decision by four to three.
The cases rested on what is the proper test to be applied to determine where there is a deprivation of liberty when mentally incapacitated people are required to live in a place when they could not (and therefore did not) consent. These places could be hospitals or care homes, but in the three appeals before the Supreme Court they were an independent supported living placement, a unit for learning disabled young people and a foster home. If they are deprived of their liberty, article 5 of the European Convention is engaged and protections including periodic reviews of their detention are triggered. Their detention must be authorised and reviewed by the Court of Protection. Where the statutory scheme applies, in hospitals and care homes, detained residents fall within the so-called DOLS (deprivation of liberty safeguards), which is an administrative procedure whereby people may be detained without the authority of a court (albeit with the right of appeal to one)…
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