(Court of Appeal, Pill, Lloyd, Munby LJJ, 9 November 2011)
The 39-year-old man had substantial physical and learning difficulties. He lived in a community placement bungalow with other disabled people and received close one-to-one supervision during the daytime but was able to have regular access to the community with his carers. He displayed difficult and challenging behaviour including putting objects in his mouth which required support staff to employ various distraction techniques and when required use a ‘finger sweep' to ensure articles were removed from his mouth. At first instance Baker J found that the man had been deprived of his liberty because he could not go anywhere or do anything without the support staff, was at times subject to physical restraint and the use of the finger sweep. The local authority appealed.
Allowing the appeal substituting a declaration that the man was not deprived of his liberty. The assessment of whether a person was deprived of his liberty required consideration of a number of factors and the context of the person's situation. The judge should have compared what the man's situation would have been in a family setting. The restrictions imposed were no more than the inevitable corollary of his various disabilities.