The (not so?) Great Confinement

As a result of the Supreme Court's decision in P (By His Litigation Friend the Official Solicitor) v Cheshire West and Chester Council and Another; P and Q (By Their Litigation Friend the Official Solicitor) v Surrey County Council [2014] UKSC 19, [2014] COPLR 313 (‘Cheshire West'), we are presently witnessing something very unique, something historical. And that is the mass authorisation of deprivation of liberty of a significant proportion of the disabled population. Tens of millions of pounds are being diverted from health and social care budgets to enable such authorisations on an industrial scale. Up and down the country – as Art 5 ECHR takes hold – an additional layer of legal procedures are now required to oversee health and social care. We are in the throes of what might be called a great confinement. Whether the Supreme Court was right to lower the threshold for deprivation of liberty beyond that presently recognised by the European Court of Human Rights remains to be seen. No one will ultimately know unless and until Strasbourg is presented with a similar set of facts. This article does not question the policy behind the decision. No one would argue against the need for vulnerable people to have independent periodic checks on their welfare. Instead, and drawing upon an historical parallel, this article calls into question whether the right to liberty is likely to be the most effective means of achieving that policy aim. After all, it did nothing to prevent the torture of Winterbourne View. The legal landscape may well look very different in years to come, following the Law Commission's welcome intervention. But, in the meanwhile, the consequences of the acid test must be addressed. And there are lessons to be learnt from history to avoid what might otherwise turn out to be a not-so-great confinement.