This image is startling, and rather old-fashioned: I don’t think many of us see birds kept in fancy gold-plated cages any more – this seems part of history, like aspidistras and Victorian corsets. Yet this was the image used by a judge in the Supreme Court when she explained why deprivation of liberty is far more common in health and social care than we thought it was.
So what does this mean?
The judge, Lady Hale, meant that we have to separate in our minds the question of whether someone is deprived of their liberty, from the question of whether it’s in their best interests, and the least restrictive option that can be found to keep them safe.
She said that, when working out whether a person is or isn’t deprived of their liberty:
‘The person’s compliance or lack of objection is not relevant; the relative normality of the placement … is not relevant; and the reason or purpose behind a particular placement is also not relevant.’
These are really important points. The care may be the best in the world, and everyone might agree that it couldn’t be bettered – but it doesn’t mean there’s no deprivation of liberty. The purpose of the care plan may be to enable this person to have as much freedom and happiness as possible and it may achieve that aim brilliantly – but the person may still be deprived of their liberty.
‘Human Rights are for Everyone’
Lady Hale said this as well, in this same important judgement.
There’d been a growing idea, among local authorities and care providers, and even some judges, that somehow the human rights that protect the rest of us don’t apply to a person who is very disabled, or who has a learning disability, or who is living with dementia: ‘it’s the disability that restricts them, not us: this is just how it has to be for them.’
The judges disagreed with this view, on the grounds that that people living such restricted lives behind locked doors are very vulnerable, and do need checks, at intervals, by an outside assessor that their care plan really is in their best interests, and the least restrictive option that can be found. And rights must be universal.
Lady Hale said:
‘If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. 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.’
Ah, now it makes sense! Though I’ve still never seen a bird in a fancy golden cage or worn Victorian corsets.
