How UK judges forgot the meaning of ‘liberty’

Last week, the Supreme Court of the United Kingdom gave a long-awaited judgment in two combined appeals about liberty. The court had to determine when an adult with mental disabilities should be treated as deprived of his liberty.

The cases concerned a Mr P from Cheshire, and two young women from Surrey, whom the Supreme Court has christened MIG and MEG. All are severely mentally impaired. Mr P was born with cerebral palsy and Down’s syndrome. He lived in a house with carers. He wears a giant babygro, because he has an unfortunate tendency to ingest his incontinence pads. MIG has the cognitive ability of a two- to three-year-old, and lived with a foster mother, whom she regarded as her mum. MEG has the cognitive ability of a four- to five-year-old, and had been placed in a small children’s home, because her former foster carer could not cope with her challenging behaviour. Both girls attended college and saw their siblings regularly.

None of them is capable of living independently, or even going out into the community without someone to accompany them for their own safety. Unfortunately, their original parents could not look after them. So their local councils assumed the statutory responsibility of providing for their care, entirely appropriately (and at considerable public expense).

At the original trials, the judge hearing Mr P’s case decided that he had been deprived of his liberty, but the judge hearing the cases of MIG and MEG decided that they had not been deprived of their liberty. The Court of Appeal overturned the findings in Mr P’s case, but upheld the verdict in the other case.

When the latest round of appeals was argued, the official solicitor who acted for Mr P, MIG and MEG said that the council taking oversight of their care was a breach of Article 5 of the European Convention on Human Rights, which guarantees the right to liberty and security of person. Various rulings of the European Court of Human Rights in Strasbourg were cited, though none shared the specifics of these cases.

In a paternalistic judgment, the Supreme Court, by a majority of four to three, decided that all the appellants had been deprived of their liberty, even though their living circumstances were nothing out of the ordinary, bearing in mind the extent of their disabilities. Lady Hale, giving the lead judgment, said that a gilded cage was still a gilded cage. She also said ‘they need a periodic independent check on whether the arrangements made for them are in their best interests’. She did not elaborate on what this check might consist of, or who should carry it out, or how often. This is all disappointingly vague.

In practice, a local authority providing services to a disabled person will carry out an annual review of his or her needs, and also whenever there is a significant change in his or her circumstances. So was this ‘check’ intended to be a purely administrative one, as opposed to some form of judicial oversight?

The dissenting Supreme Court justices evidently thought that the majority’s conclusion was unreal. Unlike the US Supreme Court, where judicial differences can be expressed far more bluntly, the minority said politely: ‘We are concerned that no one using ordinary language would describe people happily living in a domestic setting as being deprived of their liberty.’ The dissenting judges also pointed out that the trial judges had had the opportunity of hearing all the live evidence, and were better placed to assess the reality of the situation, than judges hearing an appeal years later.

But the notion of liberty in our courts today is a pale shadow of what the concept used to mean. ‘Give me liberty, or give me death!’ said the republican lawyer Patrick Henry in Virginia on 23 March 1775, in a speech that helped spark the American Revolution. ‘It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace – but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God!’

Henry was opposed to the idea of British rule. For him, as for Americans today, liberty means the right of self-government, and freedom from external interference. By contrast, the Strasbourg notion of ‘liberty’ is encapsulated in the bald question: are you free to leave?

Of course, it is right, for example, that severely mentally ill people who are compulsorily detained for treatment should have access to a judicial mechanism to review their continued detention. The law in England already provides for this under the Mental Health Act 1983.

But the appellants in these cases were not being compulsorily detained for treatment in an institution like a hospital or a private clinic. They were not being paraded in handcuffs, or forced to till the fields in chain gangs. Their homes were not a cage. The only difference between their situation, and that of disabled people being cared for by their birth families, was that the state was providing them with services. The majority’s conclusion seems to be that the state should be checking up on itself in relation to the arrangements it was making for their care.

In essence, the Supreme Court majority seems to confuse the notion of good administration with the notion of liberty, when the two are conceptually separate.

The Supreme Court also seems to have disregarded the fact that these disabled adults were never going to be able to exercise autonomous choices about where they should live, and what sort of lifestyle they wanted. It suggests that the parties concerned were especially vulnerable, and would be discriminated against, unless they were treated as being deprived of their liberty. But this is illogical.

Everyone has to live somewhere. The appellants’ situation was no different from that of small children, who are not expected to roam the wider world unaccompanied. The Aristotelian concept of justice requires that likes be treated alike, and those that are not alike should be treated differently; but the severely mentally impaired adult is not similarly situated to the mentally competent one.

The European Court has distinguished the scenario where a person experiences a restriction on freedom of movement from one where he or she is actually detained. The 2012 case of Austin, involving demonstrators ‘kettled’ by the police, is a case in point, as even there the European Court concluded that there was no breach of their Article 5 rights.

The effect of this latest ruling is that the state must now carry out spot checks of some kind on adults with mental disabilities in receipt of state services, on the off chance that things might not be going very well. It is a good illustration of how some judges now feel an impulse to micro-manage people’s lives, in the name of upholding their human rights. Far from protecting their best interests, or respecting their liberty, this seems to be a recipe for even more state intrusion into the lives of the mentally impaired.

Barbara Hewson is a barrister in London. This article was written in a private capacity, and represents her personal views.