The Civil Division of the Court of Appeal handed down its judgment in P and Q v Surrey County Council [2011] EWCA Civ 190 on 28 February 2011. The case concerned the question of whether care arrangements made for two sisters with substantial learning difficulties amounted to a deprivation of their right to liberty under Article 5 of the European Convention for Human Rights.

P and Q were sisters who had substantial and permanent learning difficulties, lacking the capacity to make decisions about their own care. Having both been removed from their family home in 2007, P was moved to live with foster parents, Q to a specialist residential home. Since then, neither had ever expressed a wish to leave their respective new homes, although both were required to be restrained at times.

Wilson LJ, delivering the lead judgment, held that the factors relevant to determining whether or not there has been a deprivation of liberty may or may not include: whether a person is happy is irrelevant; whether a person objects to his confinement; use of medication is relevant, particularly if it has the effect of suppressing a person’s ability to express his wishes; it was inappropriate to take into account that the “purpose” of the care package was to further the person's best interests; but the judge was right to stress the “relative normality” of the arrangements.

Q’s case was closer to the “border of deprivation of liberty”, because she was not in a family home, was subject to physical restraint, albeit infrequent and was in receipt of medication. Nonetheless, Wilson LJ held that Parker J of the High Court was “clearly correct” in finding that neither P nor Q were being deprived of their right to liberty. It was also relevant that they both maintained a (relatively) normal daily balance between education and home.

Mummery LJ noted that the care plan arrangements implemented by the Council had rescued P and Q from an abusive and neglectful environment, protected them from physical and emotional harm, liberated them from conditions of deprivation and afforded them more opportunity for greater fulfilment, and this constituted an enhancement, and not a deprivation of their liberty. He accepted, however, that there were dangers with this approach as it risked “confusing matters which affect whether a deprivation of liberty is lawful with whether it exists at all”. Smith LJ, in contrast, held that a deprivation may exist regardless of whether the appellants’ situation had been better than it had been previously.

The Court thus dismissed the appeal, and leave to appeal to the Supreme Court was granted.