Cheshire West and Chester Council v P [2011] EWCA Civ 1257, [2011] All ER (D) 150 (Nov)
In determining whether the care plan for a vulnerable adult amounted to a deprivation of liberty contrary to Art 5 of the European Convention on Human Rights, the starting point was the “concrete situation”, taking account of a range of criteria such as the type, direction, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty was merely one of degree or intensity, not or nature or substance. Deprivation of liberty had to be distinguished from restraint.
Restraint by itself was not deprivation of liberty. Account had to be taken of the individual’s whole situation. The context was crucial. Mere lack of capacity to consent to living arrangements could not in itself create a deprivation of liberty. In determining whether or not there was a deprivation of liberty, it was legitimate to have regard both to the objective “reason” why someone was placed and treated as they were and also to the objective “purpose”, or “aim”, of the placement. Subjective motives
