The Equality and Human Rights Commission welcomed a ruling by the Supreme Court today, which found that severely disabled people cannot be deprived of their liberty without proper safeguards, even if their living arrangements are benevolent.
The case, in which the Commission gave expert evidence and made submissions on human rights and equality law, involved P and Q, two teenage sisters and a man, P, who were in foster and local authority care.
It was agreed their social care placements were the responsibility of the state and that none of them could give a valid consent because they lacked capacity. Therefore only the objective question of whether or not they were deprived of their liberty needed to be decided.
This case now clarifies protection for disabled people, an issue highlighted in a recent House of Lords report into the Mental Capacity Act.
Lady Justice Hale, deputy President of the Court said that in her view: “It is axiomatic that people with disabilities, both mental and physical, have the same rights as the rest of the human race.
“It is to set the cart before the horse to decide that because they do indeed lack capacity and the best possible arrangements have been made, they are not in need of those safeguards.
“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.”
The Commission had submitted that disabled people do not have fewer rights because of their impairments and were in need of special protection given the vulnerability of their situations. Public authorities also have a positive duty to investigate if they think a person might be deprived of their liberty and to seek the authorisation of the Court where there is doubt.
The quality of their care arrangements cannot be used to decide that there was no deprivation of liberty.
The ruling means P, Q and P, who are unable to leave their homes without supervision, must now, have their care arrangements periodically, independently checked to ensure restrictions are necessary.
Commission Chief Legal Officer, Rebecca Hilsenrath said:
“We intervened in this case because we wanted to clarify the extent of protection for people with disabilities. This decision makes it clear that care arrangements must be checked and gives protection to the most vulnerable in society.
As Lady Hale said ‘the whole point about human rights is their universal character. The rights set out in the European Convention are to be guaranteed to “everyone” .They are premised on the inherent dignity of all human beings.’
“Far from disability being used to deny people rights, it places a duty on the state and others to cater for their special needs.”