UK Supreme Court will hear a case that will re-open consideration of what it means to be ‘deprived of your liberty’
"At a minimum, the substantive safeguards (perhaps in the form of regulations and statutory guidance) would need to recognize that:
- ‘Consent’ is not mere acquiescence or a lack of objections – these may result from institutionalization, sedation, or fear.
- The use of direct physical restraint, ‘challenging behaviours’ towards staff or other residents, self-harming behaviours, are all strong indicators that a person may not be happy where they are, or with specific aspects of their care arrangements.
- If others involved in that person’s care, or know them well, think they may not be happy where they are or with their care arrangements, then they should not be treated as consenting.
Valid consent would also need to relate to both the locational part of the objective test (where a person is confined or living) and its relational aspects, how they are being restricted or confined. For example, a person might be happily living in their own home – not seeking to live elsewhere – but feel frustrated by specific measures imposed on them there (e.g. supervision and control to manage specific risks/concerns, for example to stop a person from having sex or harming others)."