Disabled people in care facilities 'deprived of liberty', says judge

Disabled people have the same human right to "physical liberty" as the rest of the human race, one of the UK's most senior judges said on Wednesday.

Lady Hale, deputy president of the Supreme Court, said disability did not entitle the state to deny disabled people their human rights, but placed a duty on the state to cater for disabled people.

The fact that disabled people might be deprived of liberty in care facilities where living arrangements were comfortable made no difference, she said, adding: “A gilded cage is still a cage.”

Her comments came as the Supreme Court - the highest in the UK - ruled that three disabled people who live in care facilities had been "deprived of their liberty" under the terms of mental health legislation.

The ruling - made following a Supreme Court hearing in London - overturned decisions by the Court of Appeal.

Charities working with disabled people said it was a "landmark" for the protection of vulnerable people.

"It is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race," said Lady Hale.

"It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings.

"Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.

"Those rights include the right to physical liberty... This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty.

"But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities.

"If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person."

She added: "The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage."

Seven Supreme Court justices analysed the cases of two sisters with learning difficulties and a man with cerebral palsy.

The did not identify any of the people involved.

But they said the local authority with responsibility for the sisters was Surrey County Council and the local authority with responsibility for the man was Cheshire West and Chester Council.

Justices said one sister was in a foster home and would have been restrained from leaving. The other sister was in a residential home, requiring some physical restraint and receiving tranquilisers.

The man lived in a staffed bungalow and intervention was sometimes required when he exhibited "challenging behaviour".

Justices said they had considered the criteria for judging whether living arrangements for mentally incapacitated people amounted to a "deprivation of liberty".

They said such deprivation had to be authorised under the terms of the 2005 Mental Capacity Act and living arrangements subjected to regular independent checks.

All three cases had first been considered by High Court judges sitting in the Court of Protection, then by the Court of Appeal.

In all three cases, appeal judges concluded that living arrangements did not amount to a "deprivation of liberty".

But the Supreme Court disagreed and said all three had been "deprived of their liberty".

They upheld the man's appeal unanimously and the sisters' appeals by a four to three majority.