Barbara Hewson discusses the Court of Appeal’s latest ruling on deprivation of liberty
The Court of Appeal gave judgment last month in a test case on the limits of Art 5 of the European Convention on Human Rights (P & Q v Surrey County Council [2011] EWCA Civ 190, [2011] All ER (D) 286 (Feb)). The case, formerly known as MiG & MeG, had become something of a cause célèbre for lawyers practising in the field of mental capacity. But what did the court decide? It unanimously upheld a decision of the High Court (Parker J) that two young women who had been rescued from an abusive family environment were not being deprived of their liberty.
Judicial retreat
The case illustrates a judicial retreat from the implications of the Bournewood decision, HL v United Kingdom (2004) 40 EHRR 761. HL was an autistic man who was taken to a mental hospital, after an incident of self-harm in a day centre.
HL lacked capacity to agree to stay in hospital on a voluntary basis, and his carers objected when the hospital refused to return him
