Elizabeth-Anne Gumbel QC, Henry Witcomb and 1COR door tenant, Duncan Fairgrieve, intervened in these high profile Supreme Court cases, known as “Cheshire West”, which considered whether people who have severe learning difficulties and are placed into care are deprived of their liberty under Article 5 of the European Convention on Human Rights.
Elizabeth-Anne, Henry and Duncan were instructed by Leigh Day and represented the AIRE Centre which is a charity that promotes awareness of rights under European law and assists marginalised individuals.
The cases used to test the law in this area are as follows.
P has severe physical and learning disabilities. He lacks the mental capacity to make decisions as to his care and residence. In November 2009, he was placed into care pursuant to a court order.
P has a history of shredding his continence pads and putting them in his mouth. Various techniques have been used to tackle the problem. Non-physical methods are attempted but staff members do sometimes have to resort to physical intervention.
P and Q are sisters who are severely mentally impaired.
Until 2007, both of them lived with their mother. Their lives were dysfunctional and abusive. By the time of the first instance hearing, P was living with a foster carer and Q was living in a specialist NHS children’s home. P and Q’s contact with their mother was restricted by Court, and they were not permitted to live with her.
In a landmark judgment, the Supreme Court allowed all the appeals (unanimously in the appeal of P, and by a majority of 4 to 3 in the appeal of P&Q), holding that the circumstances in those cases amounted to a deprivation of liberty. Delivering the main judgment, Lady Hale underlined that human rights have a universal character and that physical liberty is the same for everyone, regardless of their disabilities. The key feature in these cases is whether the person concerned is under continuous supervision and control and is not free to leave. The person’s compliance or lack of objection, the relative normality of the placement and the purpose behind it are all irrelevant to this question.