MDAC welcomes decision on ‘deprivation of liberty’ by UK Supreme Court

Last week, the Supreme Court of the United Kingdom decided in two important cases about the right to liberty of people with disabilities, heavily drawing on case-law from the European Court of Human Rights taken by MDAC. The facts of the cases are summarised in the court’s press release here.

UK Supreme CourtUK Supreme Court - credit: Akira Suemori/AP

The joined cases both concerned people with disabilities who were placed in a home in circumstances where the authorities found that they did not have the capacity to consent to being placed there. One of the cases (P and Q) concerned sisters with intellectual disabilities. One of the sisters never attempted to leave her foster home but would have been restrained from doing so had she tried. Her sister was moved to a care home for adolescents with complex needs. She was sometimes physically restrained and given tranquillising medication.

In the other case, the adult (P) has cerebral palsy and Down syndrome. He requires 24-hour care. Until he was 37 he lived with his mother but when her health deteriorated the local social services authority obtained orders from a court that it was in his “best interests” to live in accommodation arranged by the authority. Since November 2009 he has lived in a staffed bungalow with other residents near his home and has one to one support to enable him to leave the house frequently for activities and visits. Intervention is sometimes required when he exhibits challenging behaviour. The judge held that these arrangements did deprive him of his liberty but that it was in P’s best interests for them to continue. The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty, after comparing his circumstances with another person of the same age and disabilities as P.

The crucial question which the Supreme Court had to answer was: “Were these people detained?” The Court enunciated the general principle that benevolent justification for the care arrangements must not be confused with the concept of deprivation of liberty.

The Court conducted a detailed analysis of the case-law. “There is no case in Strasbourg which concerns the type of placements with which we are here concerned” it said. “However, there have been several relevant decisions in Strasbourg since the judgments in the courts below. The most important is probably the decision of the Grand Chamber in Stanev v Bulgaria (2012) 55 EHRR 696, because this concerned the placement of a mentally disabled man in a care home rather than a hospital.”

MDAC represented Mr Stanev in his successful application to the European Court of Human Rights though Aneta Genova, a lawyer in Bulgaria whom MDAC contracts, and we continue to do so in further domestic proceedings. Another MDAC cited in the UK Supreme Court judgment is that of Shtukaturov v Russia, in which the European Court found that a guardian should not have the legal right to place someone in a psychiatric hospital, especially when a person can decide for themselves. A third case cited by the UK Supreme Court is also one which MDAC was involved – Kędzior v Poland – where MDAC made a third party intervention. 

MDAC is pleased to see the UK Supreme Court recognising that placing people with disabilities in institutions without their agreement is a deprivation of liberty, referencing so many of our leading cases.

Oliver Lewis, Executive Director of MDAC said:

“We call on the UK government to give much more attention to the right of people with disabilities to live in the community, like all other people. At the very least, this judgment from the UK Supreme Court shows that ‘best interest’ decisions on placing people in institutions without their consent does indeed amount to a deprivation of liberty.”


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