The 'V' Case: Muddying the Waters of Deprivation of Liberty

A recent ruling concerning a 15-year-old boy with profound disabilities, referred to as 'V', has reignited debate surrounding the definition of deprivation of liberty, in light of the principles established in the landmark Supreme Court case Cheshire West (2014). Despite V requiring extensive support, with constant supervision and an inability to leave his placement, the court concluded that V was not deprived of his liberty, directly challenging the established "acid test."

The acid test, arising from Cheshire West, provides a framework for determining a deprivation of liberty by looking two key points:

• Is the person under continuous supervision and control: Are the individual's actions monitored and restricted by others?
• Are they free to leave: Is the individual free to leave their accommodation unescorted or without being monitored, or choose to live elsewhere?

Lady Hale, the Judge in Cheshire West, emphasised that the test should focus on the objective restrictions imposed, regardless of the individual's disability, feelings, or the perceived normality of their living arrangements. This ensured a universal standard, guarding against potential prejudice.

Applying the acid test to V's case, where he was clearly not free to leave and was under constant supervision, should indicate a deprivation of liberty (necessitating safeguards to protect his rights). However the court concluded otherwise. HHJ Middleton-Roy argued that the restrictions stemmed from V's disabilities, not actions by the state, and were designed to meet his care needs, not to deprive him of freedom as these quotes clearly illustrate:

• "V is undoubtedly under close and constant supervision. However, in this Court’s judgement, the measures implemented by the Local Authority are not actions of the State which deprive ‘V’ of his liberty. They are designed to meet his care needs”.
• V “requires support because of his profound disabilities. In practical terms, ‘V’ cannot leave his care placement of his own volition, due to his enduring disabilities. For ‘V’, the reason he can’t leave his care placement and requires intimate support is because of those disabilities, not by reason of any action of the State".

HHJ Middleton-Roy ruling therefore hinged on the distinction between restrictions because of 'V's disability versus restrictions imposed externally, which is in stark contrast to the core principles of Cheshire West and has prompted concerns about potential discrimination and an inconsistent application of the law.

Of course, V is 15 years old so it will be interesting to see how his circumstances are viewed in due course, when he turns 16, adding further complexity I'm sure. Ultimately further guidance is needed to ensure clarity and equity in the law: it seems the legal landscape is at a crossroads and there are some important ethical and legal questions to be unpicked. 

Re V (Profound Disabilities) EWHC 200 (Fam)
Cheshire West and Chester Council v P UKSC 19
Peterborough City Council v Mother & Ors EWHC 493 (Fam)