Neil Allen, Barrister, 39 Essex Street and Lecturer, University of Manchester
As a result of the Supreme Court’s decision in P (By His
Litigation Friend the Official Solicitor) v Cheshire West and Chester Council
and Another; P and Q (By Their Litigation Friend the Official Solicitor) v
Surrey County Council
 UKSC 19,  COPLR 313 (‘Cheshire
West’), we are presently witnessing something very unique, something
historical. And that is the mass authorisation of deprivation of liberty of a
significant proportion of the disabled population. Tens of millions of pounds
are being diverted from health and social care budgets to authorise
deprivations of liberty on an industrial scale. Up and down the country – as
Art 5 ECHR takes hold – an additional layer of legal procedures are now
required to oversee health and social care. We are in the throes of what might
be called a great confinement.
Whether the Supreme Court
was right to lower the threshold for deprivation of liberty beyond that
presently recognised by the European Court of Human Rights remains to be seen.
No one will ultimately know unless and until
is presented with a similar set of facts. This article does not question the policy
behind the decision. No one would argue against the need for vulnerable people
to have independent periodic checks on their welfare. Instead, and drawing upon
an historical parallel, this article calls into question whether the right to
liberty is the most effective means of achieving that policy aim. After all, it
did nothing to prevent the torture of Winterbourne View. The legal landscape
may well look very different in years to come, following the Law Commission’s
intervention. But, in the meanwhile, the consequences of the acid test must be
addressed. And there are lessons to be learnt from history to avoid what might
otherwise turn out to be a not-so-great confinement.
The full version of this article appears in issue 1 of 2015 of Elder Law Journal.
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