The meaning of ‘deprivation of liberty’ might sound like a topic better suited to a political theory debating club, but the case could have significant implications for local authorities, care providers and people like P, MIG and MEG. The term ‘deprivation of liberty’ relates to Article 5 of the European Convention on Human Rights (ECHR), the right to liberty and security of the person. Article 5 is what is known as a ‘limited right’ – that means that people have a right to liberty except in certain carefully specified situations, and they must have safeguards.
What is the legal framework?
In 2004 the European Court of Human Rights ruled that the UK had violated the Article 5 rights of a man called HL who had been informally admitted to Bournewood Hospital, who had not been given the safeguards of the Mental Health Act 1983. In response to this case, the UK government amended the Mental Capacity Act 2005 to include a set of ‘deprivation of liberty safeguards’ to protect the Article 5 rights of people in care homes and hospitals who are said to ‘lack capacity’ and who are deprived of their liberty in their ‘best interests’. The safeguards involve having independent assessments of a person’s ‘mental capacity’ to give or refuse consent to their care arrangements, and their best interests. People who are eligible for the safeguards are entitled to assistance from a representative, an independent advocate and non-means tested legal aid to appeal against their detention in the Court of Protection. The safeguards are administered by local authorities.
The deprivation of liberty safeguards are notorious for being extremely complicated; last year a judge lamented that their ‘intricacies challenge the understanding of professionals working in the field and are completely inaccessible to those for whose benefit the legislation has been devised, including those with a relatively high level of understanding’. However, practitioners on the ground can give many examples of where they have used the safeguards to deliver dramatic improvements in people’s care and protection of core rights – like ensuring better contact with family members, or reducing the use of restraint and sedation to an absolute minimum. Cases like that of Steven Neary and Peggy Ross show that people have been able to use the safeguards to challenge excessive restrictions and unlawful detention in Court (although people can face real difficulties in getting to court).
Why does the meaning of ‘deprivation of liberty’ matter?
When the safeguards were drafted, the government decided not to give a definition of ‘deprivation of liberty’, saying that this meaning should be determined by the courts. Lots of people – including the Joint Committee on Human Rights – criticised this at the time because people would be confused about when they should be applying them. A famous study published in 2011 gave psychiatrists, assessors and advocates who work with the safeguards, and expert lawyers a set of 12 vignettes and asked them whether they thought they were ‘deprived of their liberty’ or not: there was agreement in only one case. This has led to a situation where different local authorities and care providers seem to be interpreting deprivation of liberty to mean different things, and may explain why there are staggering regional variations in the number of applications under the safeguards. In 2012-13 the rate of applications was 125 times higher in the local authority with the highest per-capita number of applications than the lowest. It is hoped that the Supreme Court may clear up this confusion.
What are the legal arguments?
Although individual judges have tried to give clear and consistent interpretations of the meaning of ‘deprivation of liberty’, collectively the body of case law is very confusing. In the original ‘Bournewood case’, Mr HL was said to be deprived of his liberty because ‘the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements’ and he was not free to leave. However, in the case of MIG and MEG the High Court judge said that a lack of freedom to leave ‘casts the net too wide’. In the Court of Appeal, Lord Justice Wilson identified two key factors to determine the meaning of ‘deprivation of liberty’: whether the person is objecting to their confinement, and the ‘normality’ of their living arrangements. The more normal the living arrangements, the Lord Justice Wilson reasoned, the less likely a person is to be deprived of their liberty.
In the ‘Cheshire’ case the High Court judge, Mr Justice Baker, said that although care staff tried to ensure that P’s life was as normal as possible, his care still amounted to a deprivation of his liberty:
On the other hand, his life is completely under the control of members of staff at Z House. He cannot go anywhere or do anything without their support and assistance. More specifically, his occasionally aggressive behaviour, and his worrying habit of touching and eating his continence pads, require a range of measures, including at times physical restraint, and, when necessary, the intrusive procedure of inserting fingers into his mouth whilst he is being restrained.
In the Court of Appeal, Lord Justice Munby disagreed with Mr Justice Baker for two key reasons. The first reason was that in his view ‘the reason and the purpose are relevant to the question of whether there is any deprivation of liberty’. This line of reasoning was derived from a controversial case where Louise Austin had claimed that she had been unlawfully detained by the police when they ‘kettled’ her and other protestors. The House of Lords had said that it was legitimate to take into account the purpose of restricting a person’s liberty when deciding whether or not Article 5 was engaged. Since this ruling by the Court of Appeal in Cheshire, the case of Louise Austin has gone to the European Court of Human Rights, who ruled that it was not legitimate to take into account the purpose of restrictions when deciding whether a person was deprived of their liberty or not. In a conference speech last year, Sir James Munby – who is now the President of the Family Division and the Court of Protection – has suggested that this part of the judgment may need to be reconsidered by the Supreme Court.
The second reason given by Lord Justice Munby in finding that P was not deprived of his liberty was that, when considering whether a person lives a ‘normal’ life, ‘the “normality” with which we are here concerned is the normality of the life of someone with the relevant condition, not the normality of the life of the able-bodied man or woman on the Clapham omnibus.’ This argument – known as the ‘comparator’ – has divided opinion. Some local authority assessors have welcomed the judgment. In a recent seminar several eminent barristers and a philosopher argued that these kinds of situations were not the type of situation Article 5 was intended to apply in, and drew analogies with the situation of children – whose parents may watch them closely and restrict their free movement in their best interests. Others – myself included – find the analogy with children inappropriate and offensive.
Solicitors Ben Troke and Neil Ward have argued that the ruling will be the ‘death of the deprivation of liberty safeguards’, arguing that:
‘If it is right that restrictions imposed simply to meet the needs of P’s condition are by definition not a deprivation of liberty, it becomes difficult to imagine a situation that would be a deprivation that could nevertheless be lawful… as being in P’s best interests, necessary and proportionate, and the least restrictive option.’
In other words, you can only deprived a person of their liberty under this framework if the restrictions are necessary, so if that also means that it is not a deprivation of liberty then the safeguards could never be applied. Mental health lawyer and academic David Hewitt has argued that the ruling may be discriminatory against people with disabilities:
To put it bluntly, you are judged according to your peers, against other people with a learning disability, for example, if you happen to have a learning disability. And if what is being done to you is pretty much what is done to them, there is no deprivation of liberty in either case.
But reasoning of that kind is surely deeply dubious. Focusing on the disabled individual, and on other people ‘like’ him, seems to lose sight of all objectivity; to abandon the idea that there are common standards – common liberties, we might say, or common protections – that are available to everyone.
Since the ruling in Cheshire the courts have delivered some surprising judgments. In one case, a man who was required to live in a care home by his guardian, where he was unhappy, was subject to 1:1 supervision inside and outside the home, where the doors were locked and the police had once been called when he kicked a door down trying to leave the home, was said not to be deprived of his liberty because he had nowhere else to go. In another case a woman who was in a care home but who wanted to return to live in her bungalow was said not to be deprived of her liberty because of its ‘relative normality’ and because her overruled objections to living there did not lead to a significant degree of conflict.
Meanwhile, in Strasbourg, the European Court of Human Rights has issued four rulings where it has found – for the first time – that people have been deprived of their liberty in care homes. Moreover, the UN Convention on the Rights of Persons with Disabilities requires that people with disabilities enjoy protection of their right to liberty on an equal basis with others, which may create problems for ‘comparator’ type reasoning. These issues will have to be taken into account by the Supreme Court.
Whilst the core issue – the meaning of ‘deprivation of liberty’ for people with mental impairments – might be thought quite abstract, the case does have real significance for a large number of people. At base, the case is about in what circumstances people are entitled to safeguards to protect their right to liberty. Safeguards like independent scrutiny of their care, access to advocacy and – if they are objecting to their confinement – to a court. For people like P, MIG and MEG – where there are currently no (reported) concerns about their care, it might be questioned why they should need such safeguards: none are objecting to their confinement, and nobody is suggesting that the restrictions are unnecessary or inappropriate. It is, however, worth recalling that in P’s case, it was only through the involvement of an independent court appointed expert that it came to light that he was being frequently restrained by care staff, and a less restrictive care plan was developed.
Broadly speaking, the kinds of situations where the safeguards are applied fall into two categories: situations where there is an active dispute over where a person should live (like the case of Steven Neary), and cases where there is no alternative place of residence but a person is not ‘free to leave’ and may be subject to high levels of supervision, restraint, sedation or limitations on their contact with others. Few would disagree that the safeguards should apply in cases like that of Steven Neary, but there is less consensus over whether the deprivation of liberty safeguards should apply to the latter kind of situation. There is likely to be much legal argument on this point.
On one view – what does it mean to be deprived of one’s liberty if a person would always be subject to similar restrictions, wherever they lived? On another view, we do not question whether prisoners or people detained under the Mental Health Act are ‘deprived of their liberty’ simply because they might never be freed, or might have nowhere else to go if they were to be released. Although ‘policy’ arguments are illegitimate in legal reasoning around the meaning of ‘deprivation of liberty’, it cannot be far from many people’s minds that there are growing concerns about the human rights of people in care services (only one in seven services for people with learning disabilities complied with regulatory standards in 2011-12), especially around issues like restraint, sedation and restrictions on liberty. People – unlike Steven Neary – who have nowhere else to go, may not even have the benefit of scrutiny of their care by family members, and may be even more vulnerable.
On the other hand, the safeguards do not come cheap. Studies show that they are also almost twice as costly to administer than the government had anticipated. When the government drafted the safeguards they decided to only include care homes and hospitals, and people over the age of 18, meaning that a large number of services cannot use the ‘deprivation of liberty safeguards’ framework. P lives in a ‘supported living’ service, as do around 27,000 other people with learning disabilities in England. These services are not subject to any site inspections by the Care Quality Commission. MEG lived in a children’s care home, where the safeguards do not apply. To comply with Article 5 in settings like these, the only available route for local authorities and care providers is to apply directly to the Court of Protection for authorisation. This can be extraordinarily costly. In the Court of Appeal’s ruling in MIG and MEG’s case, Lord Justice Wilson commented that if he did find that MIG or MEG were deprived of their liberty ‘the vast, if unquantifiable, number of necessary reviews of such a character would surely be beyond the present capacity of the Official Solicitor‘s department and in particular of the Court of Protection’. The financial repercussions for local authorities and care providers of finding that P, MIG or MEG were deprived of their liberty could be enormous, and unsustainable in a time of austerity. Yet this is in no small part because of the government’s failure to ensure that supported living services and children’s services have a framework like the deprivation of liberty safeguards.
There is also a symbolic aspect to these cases. They tap into very emotive and political questions about the nature of disability and of care. Cases like Cheshire have constructed the restrictions a person is subject to as intrinsic to them, and the care people like P receive is constructed as benevolent and requiring no significant scrutiny (or at least, not via an Article 5 mechanism). As the Official Solicitor – who represents P, MIG and MEG in this case – has said, there tends to be a view that ‘people in care homes, if they are nice care homes and there are red roses around the front door and not many residents or rooms, are not being deprived of their liberty’. The analogy with the restrictions imposed on children, often lurking in the background in discussions around Cheshire, fits with an infantilising view of people with learning disabilities and older adults which is often held in society.
An alternative way of looking at these cases is that people like P, MIG and MEG – whatever their impairment – are also subject to high levels of control by those caring for them. The purpose of safeguards, on this view, is to ensure that this kind of control is only exercised where it is really necessary and justified, through independent appraisal by assessors – or, if necessary, a court. Care services, however benevolent their intentions and however rosy their brochure, can still be sites of coercion. Far from these types of situations not being what Article 5 is ‘about’, we might recall that some of the greatest human rights abuses in our country, and over the last century, have been perpetrated against populations like this, subject to similar levels of supervision and control, in health and social care institutions. Many human rights violations – perhaps especially in this sector – take place with the best of intentions. This is not to suggest that all, or even most, services are violating people’s rights, just that when the stakes are so high it is vital to have procedural safeguards (in the words the European Court in HL’s case) ‘to protect individuals against any “misjudgments and professional lapses”’.
On this view, the ‘comparator’ we should be adopting is whether people without disabilities would consider themselves deprived of their liberty if they were subject to similar restrictions. As the Official Solicitor retorted from the audience in the seminar discussed above, ‘how disabled does a person have to be before they cease to have human rights, or an Article 5 right? And one can be flippant about little children if one wants, but these aren’t children, they’re adults.’
I think you can see which way I’m leaning on this…
If you are interested, you will be able to watch the Supreme Court case on Supreme Court TV on 21-22 October. The case will be heard by seven judges, reflecting its significance, comprising Lords Neuberger, Kerr, Clarke, Sumption, Carnath and Hodge, and Lady Hale.