The Supreme Court has handed down 2 judgments in the last month concerning the vexed issue of deprivation of liberty. In MM v Secretary of State for Justice  UKSC 60 the Supreme Court dismissed the an appeal, deciding that the First Tier Tribunal did not have power to impose conditions as part of a conditional discharge of a restricted patient that amounted to an objective deprivation of liberty. That decision appears likely to be appealed to Strasbourg.
In PJ v Welsh Ministers the Supreme Court allowed an appeal, holding consistently with MM, that the tribunal’s powers to make a Community Discharge Order did not extend to making an order which amounted to an objective deprivation of liberty.
These cases turn on where the line is drawn that amounts to a “deprivation of liberty” and thus engages the article 5 rights of an individual. That issue has been the subject of considerable criticism. The present law depends on the “acid test” of deprivation of liberty established by the Supreme Court in Cheshire West and Chester Council v P  AC 896, even though this leads to service users without capacity who are contentedly living in entirely appropriately care settings to be classified as being quasi-imprisoned and thus within the scope of article 5. The Cheshire West decision led to tens of thousands of service users having to go through DOLS procedures, even though they were living in entirely appropriate care circumstances and no one was seeking to challenge the appropriateness of the care regimes. It has cost hard-pressed local authorities millions of pounds in administration and legal fees, all of which has come out of funds that could have been spent on care services.
However in PJ, Lady Hale gave the broadest of hints that the Supreme Court would be open to reconsidering whether the “acid test” relating to deprivation of liberty established by the in Cheshire West should be revisited by an expanded panel of Judges. She said at para 21:
“There is no reason to distinguish this case from Cheshire West and we are not – and could not be as a panel of five – asked to depart from it”
That seems to be an invitation to a litigant to do precisely that – namely to select an appropriate case and then invite the Supreme Court (possibly through the leapfrog procedure) to reconsider Cheshire West. My guess is that there will be directors of Social Services up and down the country who are likely to say “bring it on”. It is just necessary to find the right case with the right facts to do so.