The Acid Test

Today Yesterday, the Supreme Court handed down its judgment in P v Cheshire West and Chester Council and another; P and Q v Surrey County Council [2014] UKSC 19.  Lady Hale gave the leading judgment, allowing the appeals.   The Supreme Court found – unanimously – that P in the Cheshire case was deprived of his liberty, just as Baker J had found in the High Court, and overturning the decision of Munby LJ, Lloyd LJ and Pill LJ in the Court of Appeal.  However, the justices were divided over MIG and MEG: Lady Hale, Lord Sumption, Lord Neuberger and Lord Kerr all felt that both MIG and MEG were deprived of their liberty; reversing the decision of Parker J in the High Court and Wilson LJ, Mummery LJ and Smith LJ in the Court of Appeal.  However, Lord Carnwath, Lord Hodge and Lord Clarke disagreed, setting out their reasons in dissenting judgements.  Lord Neuberger, and Lord Kerr, addressed their arguments in their additional judgments in support of Lady Hale’s leading judgment.  I had been surprised that the Supreme Court had allocated seven judges to hear this case, but it was just as well, given these dissents.  These dissents may also explain why it took so long for this judgment to be handed down.

Lady Hale’s judgment – whether you agree with it or not – sets out the history, facts, case law, policy issues and arguments beautifully.  Her ability to clearly articulate very complex legal issues, which came across in her judgments in Aintree and Dunhill v Burgin, will be a welcome relief in a field where we have long struggled with great swathes of complex and often contradictory reasoning around the meaning of deprivation of liberty.

The search for a clear test

Our present difficulties in defining ‘deprivation of liberty’ in the meaning of Article 5 of the European Convention on Human Rights (ECHR) began way back in 1976, in a case called Engel v the Netherlands.  In Engel, the European Court of Human Rights (ECtHR) held that in determining whether or not a situation constituted a deprivation of liberty, regard must be had for ‘whole range of factors such as the nature, duration, effects and manner of execution of the penalty or measure in question.’  Later on, in Guzzardi v Italy, it held that the distinction between a restriction on liberty and a deprivation of liberty was ‘merely one of degree or intensity, and not one of nature or substance’, observing that ‘some borderline cases are a matter of pure opinion’.

Philosophers talk about a class of problems called the Sorites Paradox: how many grains of sand must you add before it becomes a heap?  At what point along a colour gradient does red become orange?  These are problems which arise from ‘vague predicates’, problems where we do not know where – or how – to draw a boundary, and any boundary we do impose is fundamentally arbitrary (see Clements, 2011, for his discussion of the Sorites Paradox in law).  The question of when restriction shades into deprivation of liberty is a pre-eminent example of a vague predicate, calling for an arbitrary boundary, and it is one that has not a single dimension – but many.  This has created significant difficulties for everyone having to draw the line – from care providers who have to make the application, best interests assessors under the deprivation of liberty safeguards (DoLS) having to determine whether or not somebody is deprived of their liberty, to the courts, ombudsmen and regulators.  It has led to heated arguments because where you draw the line has momentous consequences for individuals, for public bodies, and for the courts.

Munby LJ recognized this multi-factorial investigation as the source of the difficulty in Cheshire, saying that ‘the call to examine the facts can too easily lead to the worrying and ultimately stultifying conclusion that the decision in every case can safely be arrived at only after a minute examination of all the facts in enormous detail’ (§38).  He looked for ‘something more which enables us to pursue a more focussed and less time-consuming enquiry’ (§59).  The majority justices of the Supreme Court were sympathetic to this goal, Lady Hale saying ‘ I entirely sympathise with the desire of Munby LJ to produce such a test and thus to avoid the minute examination of the living arrangements of each mentally incapacitated person for whom the state makes arrangements which might otherwise be required’ (§48) and Lord Neuberger saying ‘it would be highly desirable to have as much authoritative guidance, or, as Lord Carnwath and Lord Hodge put it, as focussed a test as possible’ (§60).  In fact, only Lord Clarke appeared unperturbed by the prospect of a multi-factorial balancing exercise, with all the potential for arbitrariness and argument which that entailed, saying that:

‘…it is necessary to conduct a multi-factorial exercise which involves a balancing of a number of considerations. The ECtHR has not held that there is only one question (or acid test), namely whether the individual concerned is free to leave. Its approach is more nuanced than that’ (§105).

I, for one, agree that it is preferable to have a clear line – or as clear as can be – rather than this multi-factorial examination where a person can quibble about shades of grey along multiple different dimensions.  This had resulted in tremendous arbitrariness in the resultant application of the safeguards – as the empirical studies (Cairns et al., 2011;Cairns et al., 2011;Carpenter et al., 2013), regulatory reports (Care Quality Commission, 2014) and statistical data (Health and Social Care Information Centre, 2013) showed.

The new test: continuous supervision and control, and freedom to leave

As all the justices agreed – there has never been a case at Strasbourg on this particular constellation of facts.  This meant that it was difficult to discern a clear line of argument in the ECtHR case law which could be applied to this particular situation.  In other words: on the available European case law, the case could have gone either way.  Lady Hale and the dissenting judges disagreed about what should be done in the absence of clear guidance from Strasboug.  For Lord Carnwath and Lord Hodge, in the absence of a clear steer from Strasbourg, ‘we should be cautious about extending a concept as sensitive as “deprivation of liberty” beyond the meaning which it would be regarded as having in ordinary usage’ (§93).  Yet for Lady Hale, ‘Because of the extreme vulnerability of people like P, MIG and MEG, I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty’, because ‘They need a periodic independent check on whether the arrangements made for them are in their best interests’  (§57).   Similar reasoning to Lady Hale’s, about erring on the side of caution and adopting a generous definition of deprivation of liberty, can also be found in earlier Court of Protection case law, like A Local Authority v PB & Anor (2011) and AM v South London & Maudsley NHS Foundation Trust and The Secretary of State for Health (2013).

The ‘acid test’ (§48, 54) proposed by Lady Hale was derived from a feature which has consistently appeared in a long string of recent Strasbourg authorities – starting with the original Bournewood case of HL v UK (2004), through several recent decisions about deprivation of liberty in care homes (discussed here) including Stanev v Bulgaria (2012).  It was simply this: is the person subject to continuous supervision and control, and are they free to leave?  If they are subject to continuous supervision and control, and they are not free to leave, then they are deprived of their liberty.

It is important to note that freedom to leave was distinguished from being ‘free to express a desire to leave’, in which case whoever arranged the care would seek an alternative placement (§55).  The reason why this does not constitute freedom to leave for the purposes of Article 5 was not discussed, but I suspect it is a recognition of the reality that ultimately a person’s de facto and de jure freedom to leave under the Mental Capacity Act 2005 rests with whoever makes ‘best interests’ decisions, not the person subject to them.  To put it another way, if a total stranger rocked up to MIG or MEG or P’s placements and invited them to come and live with them, the reality is that they would not be free to do so unless their care providers and anyone responsible for commissioning their care had assured themselves that this was in their best interests.  By contrast, I would be free to do so if I chose (although I suspect my husband might have a few things to say about it).

In a part of the judgment I found a little confusing, Lady Hale said that a person might not be deprived of their liberty even if they were subject to continuous supervision and control, but were still free to leave (§49).  I was trying to think of an example of this, but the best I could come up with was the Big Brother House (which would, in any case, not be a deprivation of liberty because a person had consented to being there).  Perhaps more relevantly, a (genuinely) voluntary patient in a psychiatric ward might be subject to continuous supervision and control on the ward, but provided they don’t have to ask anybody’s permission to leave, they would not be deprived of their liberty.

Lady Hale also says that it is possible that a person is not free to leave, but is not deprived of their liberty because they are not subject to continuous supervision and control.  I was struggling to think of examples of this – the best I came up with was being stuck on a train between stations or being stuck in a traffic jam where you can’t turn round.  But I think there are situations where a person would be deprived of their liberty because they are not free to leave, even if they are not subject to continuous supervision and control.  For example, if in some misconceived caper to prove a legal point, I locked my colleagues in a seminar room on the third floor and then made off to the pub, I think they would be deprived of their liberty, but they would not be subject to my continuous supervision and control.  A relative of mine who used to be a care manager was once asked by a barrister why they needed to spend all this money on care – couldn’t they just lock the person in his house and be done with it?  This somewhat flabbergasting proposal would be an example of deprivation of liberty where there was no continuous supervision and control.  I suspect the type of scenario which the court may want to distinguish, is when a person is not free to leave because of reasons unrelated to ‘mental capacity’ – perhaps they are physically unable to leave without assistance – nobody would stop them leaving if they could, but for whatever reason they don’t have the practical means to do so. [edit: see Joseph Yow’s comments below – is anyone else confused by this or got any thoughts?]

I detect the sharpening of refined arguments about precisely what ‘freedom to leave’ and ‘continuous supervision and control’ might actually consist in.  But, to be honest, I think it’s still pretty clear – now – that somebody like Mr C in C v Blackburn with Darwen, or Mrs KK in CC v KK, is deprived of their liberty.  There will still be borderline cases, but at least we’ve whittled down the arguments to two clear issues, and the scope for avoiding the application of the safeguards is significantly reduced.

Bye bye comparator…

The night before the Court of Appeal handed down its judgment in Cheshire West, I couldn’t sleep.  There seemed to be only two possible outcomes: either the Court of Appeal would come up with a definition which would mean that large numbers of people were deprived of their liberty and would need safeguards – causing havoc for services which fell outside the scope of the DoLS – or they would have to find a way of saying that liberty meant something different for people with disabilities.  Because it was as clear as day that if anybody without a disability was subject to the level of supervision and control and restraints that P in the Cheshire case was subject to, they would be deprived of their liberty.  Surely, I thought, the court can’t argue that liberty means something different for people with disabilities?

The Cheshire case built on a concept of ‘relative normality’ which was introduced by the Court of Appeal in P and Q.  In P and Q ‘relative normality’ had meant something akin to how institutional and how home-like is the service (§28).  The more institutional it was, the more likely a person was to be deprived of their liberty, whilst a more home-like environment, the less likely it was.  The difficulty with this argument is that it didn’t seem to grapple with the dynamic of control which can exist even in services which are supposed to be modelled on home environments.  In 2005, regulators found evidence of very serious abuse of people in supported living services in Cornwall; this led the Mental Health Act Commission (2008) to call for monitoring of supported living services because of the risk of de facto detention there (supported living services are not directly inspected by regulators). Family Mosaic (2012) – a provider of supported living services – wrote a very brave report describing how they had found (and been striving to root out) institutional practices in their services, and concluded that ‘The reality is institutionalisation and the processes associated with it don’t only occur in [care homes]… it can be found in all settings including in people’s own homes.’

Baker J grappled with this in Cheshire; the problem was that although P’s environment had been made as home-like as possible, he was still subject to significant interferences with his privacy and freedom.  Overturning Baker J’s conclusion that he was deprived of his liberty, Munby LJ argued that when evaluating the ‘relative normality’ of a person’s situation, for the purpose of determining whether they are deprived of their liberty or not:

‘…the contrast is not with the previous life led by X (nor with some future life that X might lead), nor with the life of the able-bodied man or woman on the Clapham omnibus, but with the kind of lives that people like X would normally expect to lead. The comparator, in other words, is an adult of similar age with the same capabilities as X, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations (call them what you will) as X. Likewise, in the case of a child the comparator is a child of the same age and development as X.’ (§97)

This approach seemed, to me, to be prima facie discriminatory.  It meant that so long as it was ‘normal’ for people with a particular disability to be treated in a particularly restrictive fashion, they would not be entitled to the protections of Article 5 ECHR.  It meant that people with disabilities could be subject to far higher levels of restriction than the rest of the population before they were entitled to any proper independent scrutiny of their situation and the means to challenge it.  In the words of David Hewitt (2012):

‘…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.’

The Supreme Court – unanimously – rejected Munby LJ’s comparator.  Lady Hale said that it was ‘inconsistent with the view that people with disabilities have the same rights as everyone else’ (§47).  Lord Hodge and Lord Carnwath – despite dissenting from the majority on the question of whether MIG and MEG were deprived of their liberty – agreed with Lady Hale’s criticisms of the comparator approach (§99).  Nobody attempted to defend it.

In fact, the approach of Lady Hale and Lord Kerr was something along the lines of a reverse comparator.  Observing that although the lives of MIG and MEG had ‘home-like’ qualities, ‘the fact remains that the lives which MIG and MEG were leading were not the same as those which would be led by other teenagers of their age’ (§47).  Lord Kerr was more explicit:

The question whether one is restricted (as a matter of actuality) is determined by  comparing  the  extent  of  your  actual  freedom  with  someone  of  your  age  and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place. (§77)

So, the comparator is the freedom of the man or woman (of similar age) on the Clapham Omnibus.

Other Irrelevant considerations: Objections and acquiesence, and the purpose of the detention

Mind and the National Autistic Society intervened in the case, and they asked the Supreme Court to give a clear indication as to what factors were not relevant to the question of whether or not a person was deprived of their liberty.  In particular, the relevance of whether or not a person was objecting to their confinement or acquiescing, and the purpose of the restrictions.  Lady Hale succinctly said that none of these were relevant considerations (§50).

The Court of Appeal, in P and Q, had held that the presence or absence of objections were relevant to the question of whether or not a person was deprived of their liberty:

If a person objects to the confinement, the consequence will be conflict. At the very least there will be arguments and she will suffer the stress of having her objections overruled. More probably, as in the case of Miss Storck, there will be tussles and physical restraints and even perhaps her forcible return at the hands of the police. This level of conflict inherent in overruled objections seems to me to be highly relevant to the objective element [of whether or not there is a deprivation of liberty]. Equally, however, the absence of objections generates an absence of conflict and thus a peaceful life, which seems to me to be capable of substantial relevance in the opposite direction. (§25)

At the time, I argued that this was a really problematic approach, as many people in care settings would be either unable to articulate a recognizable objection, or might be too institutionalized to do so.  In the case of Mrs KK, we saw this logic taken to a shocking extreme – she was clearly objecting to her detention, but because it didn’t lead to tussles and conflict, it did not contribute towards a finding of deprivation of liberty.  Goodness only knows what happened to this principle in the case of Mr C, who had battered down the door trying to escape, yet was not deprived of his liberty!

The problem was that whilst the ECtHR had found that people were deprived of their liberty whilst still acquiescing (namely: the Bournewood case), the social care home cases were more ambiguous.  Lady Hale said that she found the issue of whether or not a person was content or objecting ‘the most difficult aspect of the case’ (§55).  The Supreme Court were alive to the situation of those unable to voice any objection – like HL – whose acquiescence would deprive them of safeguards on the approach taken by the Court of Appeal in P and Q. Lord Kerr put the point most succinctly:

While there is a subjective element in the exercise of ascertaining whether one’s liberty has been restricted, this is to be determined primarily on an objective basis. Restriction or deprivation of liberty is not solely dependent on the reaction or acquiescence of the person whose liberty has been curtailed. Her or his contentment with the conditions in which she finds herself does not determine whether she is restricted in her liberty. Liberty means the state or condition of being free from external constraint.  It is predominantly an objective state. It does not depend on one’s disposition to exploit one’s freedom. Nor is it diminished by one’s lack of capacity. (§ 76)

The relevance of the purpose of the detention was also roundly rejected.  Purpose appeared to have crept into Parker J’s judgment in MIG and MEG (although she rather confusingly disavowed this at §164).  Munby LJ argued that whilst a person’s good intentions in restricting a person could not mitigate what would otherwise be a deprivation of liberty (§71), it was relevant ‘to have regard both to the objective “reason” why someone is placed and treated as they are and also to the objective “purpose” (or “aim”) of the placement’ (§76).  However, subsequent to Munby LJ’s decision in Cheshire West, the ECtHR handed down a number of judgments which firmly rejected the proposition that a beneficial purpose of restrictions would mean that a person was not deprived of their liberty (Austin v UK, 2012; Creanga v Romania, 2013; MA v Cyprus, 2013).  Munby LJ himself had acknowledged that this part of his judgment might no longer stand, in light of those cases.  And, indeed, the Supreme Court confirmed that the purpose of restrictions was no longer relevant to the question of whether a person is deprived of their liberty or not (Lady Hale, at §42; 43; 47; 50; 66; Lord Neuberger, at §66; 70; Lord Kerr, at §83, 84).

Implications…

So what are we left with?  I think the test is much clearer (although I suspect there will be some room for argument).  If P and MIG and MEG are deprived of their liberty, then so are many, many, other people in care homes, hospitals and supported living services in the UK.  This means the original estimates of the numbers of people who might need detention safeguards in the Bournewood Consultation may not be so far wrong; indeed, they may even be an underestimate.  Can the system cope?  Given that it is already struggling with the currently very low numbers of applications, I doubt it.  Where the DoLS Schedules apply – in care homes and hospitals – local authority supervisory bodies will be required to conduct many, many more assessments.  Many are already struggling to find assessors and complete assessments in a timely fashion.  Beyond the scope of the DoLS – in supported living and care services which are not registered care homes with CQC – all hell may break loose. These cases will have to be authorized by the Court of Protection directly.  Can public bodies, the Court of Protection and the Official Solicitor’s office cope with the influx of cases?  I have to say, I think it was brave and admirable of the Official Solicitor to bring these appeals, given the knock on consequences it may have for his office.

There are several nods to this reality in the judgment.  In their dissenting judgment, Lord Carnwath and Lord Hodge commented that ‘there are legitimate concerns about the potential bureaucracy of  the statutory procedures’ (§89).  I read Lady Hale’s judgment as obliquely referencing what must, now, be acknowledged by everyone: the DoLS are ‘bewilderingly’ complex (§9) and will have to go.  The House of Lords report has called for them to be scrapped.  The House of Commons Health Committee has called for a review.  The Mental Health Alliance says they are not fit for purpose.  They will have to be replaced by something else, but as Lady Hale comments, this ‘need not be as elaborate as those currently provided for in the Court of Protection or in the Deprivation of Liberty  safeguards (which could in due course be simplified and extended to placements outside hospitals and care homes)’ (§57).  The other possibility, of course, is that legislators and care providers and local authorities up and down the country will just ignore the judgment – filing it in the same place they’d filed MH v UK – and carry on regardless.  I hope this does not happen.  I hope we do not let this happen.

The UN Convention on the Rights of Persons with Disabilities

Although I welcome the Supreme Court’s rejection of the comparator, and the relevance of the purpose of restrictions and acquiescence, there are some elements of it which are uncomfortable and require deep thought.  I don’t plan to discuss these at any great length here – since this post is already rather long – but I might try to do so in the future.  The first issue is the relationship between the DoLS and the UN Convention on the Rights of Persons with Disabilities (CRPD).  It was good to see Lady Hale referencing the CRPD in her judgment.  And I do think that for the issue which the Court was asked to determine – namely, how should deprivation of liberty be defined in care settings – disposing of the ‘comparator’ was absolutely in keeping with the object and purpose of the CRPD.  However, Lady Hale’s wider reading of the CRPD is almost certainly not the reading which those negotiating the treaty, and the UN Committee on the Rights of Person with Disabilities intended.

Everyone would agree that ‘it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race’, but there would be disagreement that the CRPD confirms that ‘It may be that those rights have sometimes to be limited or restricted because of their disabilities’ (§45).  In fact, Article 14 CRPD – the right to liberty – rather indicates that whilst it might be possible for liberty to be restricted under the CRPD, it cannot be because of a person’s disabilities.  How we make sense of this in the context of a situation like P in Cheshire has troubled me for some time.  There are strong and important arguments against coercion, detention and forced treatment in the context of the CRPD, but I have yet to meet a person who thinks that P should be left ‘free’ to choke on his incontinence pads.  But how can we make sense of the measures required to prevent this happening in the context of the CRPD?  I do not know, but it’s a question I’ve been pondering, and will continue to ponder, for some time.

Domestic settings

The second issue is a definitional problem that has haunted the deprivation of liberty case law since the ruling in HL v UK.  It was first raised by HL’s own legal team, Robert Robinson and Lucy Scott-Moncrieff (2005), in a paper they published a little while after the judgment in HL v UK.  They observed that if the key factor in determining whether or not somebody is deprived of their liberty is that they are subject to complete and effective control, then ‘it is difficult to envisage circumstances in which HL is free’, including when he is at home with Mr and Mrs E, as ‘they do not allow him out on his own, and if he went off they would bring him back.’  Robinson and Scott-Moncrieff are not critical of HL’s care – but the point is that there is little in this reasoning to distinguish the situation when HL was in hospital from when he was at home.  In fact, in their dissenting judgments Lord Hodge and Lord Carnwath raise precisely this issue (§100).

In other words, there is a danger in this line of reasoning – which is very similar to that adopted by the Supreme Court in Cheshire – that people who are living with their families may be considered to be deprived of their liberty, and in need of Article 5 safeguards.  The question of deprivation of liberty within family life came up, of course, in Munby LJ’s ruling in A Local Authority v A (A Child) & Anor (2010), where he found that a woman and a child with Smith-Magenis syndrome were not deprived of their liberty by their families, notwithstanding that they exercised a high degree of control over them – including locking them in their bedrooms at night.  This judgment was issued shortly after MIG and MEG was handed down, and it relies heavily on Parker J’s (now rejected) reasoning.  In their judgment, the Supreme Court justices skirt around this issue.  MIG was deprived of her liberty despite living in a domestic setting with her foster mother.  Lady Hale says that the ‘home-like’ quality of MIG and MEG’s lives ‘does not answer the question of whether in other respects they involved a deprivation of liberty for which the state was responsible’ (§47).  Lord Neuberger says that he ‘cannot see any good reason why the fact that a person is confined to a domestic home, as opposed to a hospital or other institution, should prevent her from contending that she has been deprived of her liberty’ (§71).

Part of the essence of Lord Carnwath and Lord Hodge’s dissent is that they do not want domestic circumstances like this to be considered a deprivation of liberty.  I have some sympathy with this sentiment – although I cannot offer you any legal tools to distinguish domestic settings which would not take us into the impugned logic the Supreme Court rejected in this case.  There are policy reasons for thinking that DoLS in the family home are deeply undesirable – especially if the onus is on carers to seek authorisation.  Frankly, as Richard Jones wrote in a comment on Alex Ruck Keene’s (excellent) summary of the judgment, DoLS in the family home has Orwellian overtones.  The situation is slightly different, I think, in publicly arranged care – as that would at least have some involvement of a public body who could deal with the administrative issues.  But it’s hard to see how the ‘levers’ which Article 5 is meant to pull have any relevance in the context of care by one’s natural or adoptive family.  How, for example, would we make any sense of our monitoring obligations under OPCAT?!

Alex Ruck Keen has discussed this issue in a second post on the judgment.  I don’t know what the answer is for this, but here’s my prediction of what may happen.  Either the government will stick its fingers in its ears, or it will embark on a consultation exercise in the wake of the House of Lords report and this ruling.  That consultation exercise will ask about supported living and domestic settings.  Almost everybody will reject the idea that a DoLS-like framework should apply to families – families will reject the idea for obvious reasons, and public bodies because it would be extremely difficult to implement and administer.  Perhaps the media will get wind of it and kick up a fuss.  The government will take legal advice, which won’t be published, which will reassure them that it’s enough to rely on the judgment in A Local Authority v A & Anor (2010) which simply says that if public bodies come across deprivation of liberty in a domestic setting, they should apply to the Court of Protection.  None, or very few, public bodies will do so.  If they do so, judges may work at hints in Lady Hale’s judgment that family life may be different: ‘Similar constraints would not necessarily amount to a deprivation of liberty for the purpose of article 5 if imposed by parents in the exercise of their ordinary parental responsibilities and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions’ (§54).  Or a rather confusing statement by Lord Neuberger that ‘in the great majority of cases of people other than young children living in ordinary domestic circumstances, the degree of supervision and control and the freedom to leave would take the situation out of article 5.4. And, where article 5.4 did apply, no doubt the benignly intimate circumstances of a domestic home would frequently help to render any deprivation of liberty easier to justify’ (§72)(No, I have no idea why he cites Article 5(4) not Article 5(1) either).  Or they will shift the question to ‘imputability to the state’, rather than the ‘objective’ considerations.  The issue will be firmly booted into the long grass and occasionally discussed at conferences and in academic papers as a potential quirk of the new ‘acid test’ definition of deprivation of liberty.

References  

Cairns, R., Brown, P., Grant-Peterkin, H., Khondoker, M. R., Owen, G. S., Richardson, G., Szmukler, G. and Hotopf, M. (2011) ‘Judgements about deprivation of liberty made by various professionals: comparison study’, The Psychiatrist, 35(9), 344-349.

Cairns, R., Brown, P., Grant-Peterkin, H., Owen, G. S., Richardson, G., Szmukler, G. and Hotopf, M. (2011) ‘Mired in confusion: Making sense of the deprivation of liberty safeguards’, Medicine, Science and the Law, 51(4), 228-236.

Care Quality Commission (2014) Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards in 2012/13, London.

Carpenter, J., Langan, J., Patsios, D. and Jepson, M. (2013) ‘Deprivation of Liberty Safeguards: What determines the judgements of Best Interests Assessors? A factorial survey’, Journal of Social Work, Advance Access(DOI: 10.1177/1468017313504180).

Clements, L. (2011) ‘Disability, dignity and the cri de coeur’, European Human Rights Law Review, (6), 675-685.

Family Mosaic (2012) No going back. Is institutionalisation being recreated in modern care and support settings?

Health and Social Care Information Centre (2013) Mental Capacity Act 2005, Deprivation of Liberty Safeguards Assessments, England – 2012-13, Annual report, London.

Hewitt, D. (2012) ‘Deprivation of liberty can never be ‘normal’’, Solicitors Journal, 156(20).

Mental Health Act Commission (2008) Risk, Rights, Recovery, London: Mental Health Act Commission.

Robinson, R. and Scott-Moncrieff, L. (2005) ‘Making Sense of Bournewood’, Journal of Mental Health Law, 17.

10 thoughts on “The Acid Test

  1. Hello Lucy,
    At long last, we can say the end to the Zen of DOLS that we have a bright line comprising of continuous supervision and not free to leave. That said , we are already debating whether it should only be with “and” , can it also be “and or ” ?
    Like yourself, I too am unclear about Lady Hale’s paragraph 49. and after many re readings, I take her to mean that it is possible to have a DOL for a person not free to leave but not under continuous supervision.
    However, you thought the opposite — “Lady Hale also says that it is possible that a person is not free to leave, but is not deprived of their liberty because they are not subject to continuous supervision and control ”
    It will make my day if you are right because this will fit in with our “third box ” scenarion for a patient in an older person psychiatric ward who has completed treatment for mental disorder but simply awaiting for placement to be found, This person is not free to leave but also not under constant supervision.
    For definite, with the current DOLS’ legal framework, there is no way any Supervisory Body is able to respond to the opening of this flood gate and we are now hoping that the DH can issue at least some immediate guidance.
    By the way we are all booked to attend the event in June at the Law Society, see you then.
    Best
    Joseph

    • Hi Joseph,

      I am SO pleased you guys are coming to the conference 🙂

      I think there is likely to be litigation on paragraph 49… I think one issue that the UKSC hasn’t addressed – which may be relevant to your third box – is timescales…

      Better dash – in a seminar on Cheshire!
      L

    • I don’t agree with your ‘third box’ scenario Joseph. I believe that there will be very few people on any kind of psychiatric ward who don’t meet the criteria for ‘continuous supervision and control’. That applies particularly to older people with dementia, many of whom are prone to wandering, falling, confusion, distress, incontinence and many other physical health difficulties and whose welfare is therefore closely monitored (or should be!) by ward staff. It is not necessary for someone to be on 1:1 obs to be regarded as being under continuous supervision & control. If we take Lady Hale’s stricture to ‘err on the side of caution’ then there is no ‘third box’ and such people need either DoLS or MHA to legalise their deprivation of liberty. Indeed one might legitimately beg the question of why this is would only be considered after their treatment for mental disorder has finished and they are waiting for a placement, since the supervision and inability to leave would have been happening for their entire time on the ward.
      One aspect of the Supreme Court’s Cheshire West judgement that doesn’t seem to have been mentioned anywhere is that it suddenly brings AM v SLAM into much greater relevance. The ‘compliant incapacitated’ patient on a psych ward, cited by Charles J, would rarely, if ever, be allowed to leave should they choose to do so. Until last week the numbers of such patients who were also regarded as being deprived of liberty (ie solely by the objective conditions) in the absence of their dissent, was tiny. Now, however, objection is irrelevant. If they would not be allowed to leave and are under continuous supervision & control then they are deprived of liberty and must be sectioned or DoL-ed regardless of whether they are objecting. Many ‘compliant, incapacitated’ patients on psych wards are treated no differently than detained patients – they are equally observed and given the same instructions – so they are undoubtedly under continuous supervision and control. There are numerous ‘informal’ patients with limited, fluctuating or no capacity to consent to their confinement who are regularly cajoled and persuaded to accept all kinds of restrictions and to remain on the ward. Entries in notes such as ‘Assess under s5′ (sic) or ‘Do a risk assessment’ every time P asks to go off the ward are commonplace for supposedly ‘informal’ incapacitated patients. All these people are now deprived of liberty and, once this becomes well known, i predict a major increase in disputes about whether to use DoLS or MHA eminating from psych wards.

  2. Paragraph 49…
    In my role as a BIA I met with a man in a care home. The care home is large and has reasonably sized enclosed grounds. At the time I visited an extension had fairly recently been completed and and therefore there were quite a number of unoccupied rooms. In short, when I arrived and asked to meet the the man, beyond being confident that he was somewhere in the home or grounds, none of the staff knew where he was and it took about 20 minutes to find him (in one of the new rooms).
    If he had tried to leave through the front door then he would have been prevented from doing so.
    Therefore he was not free to leave but I certainly wouldn’t say he was subjected to ‘continuous supervision and control’.
    The latter certainly contributed to my conclusion, at the time, that he was not being deprived. Now?…
    My reading of para 49 are that both elements should lead to a conclusion of deprivation but where only one or the other is identified then it may not.
    I can see lengthy debates about what ‘continuous supervision and control’ look like as well as the nuance of when both elements may or may not be required.
    So, perhaps more a question of how many grains of sand does it take to make a ‘concrete situation’?

  3. Dear Lucy
    Thank you as always for your wise words and measured tones. For many of us who are at the sharp end of this both as teachers and practitioners thank god for you and Alex.
    There are two areas that do not seem to have been thought through.
    Little emphasis is being placed on the roles of the regulators and professional bodies. Professionals and organisations who chose to ignore the decision of the Supreme Court place their businesses and professional lives in jeopardy. Both the CQC (who have announced they are focusing of DoL at visits) and professional bodies are under pressure to demonstrate that they are there to protect the public and not professionals.
    Linked to this is my second point and that is entitlement to damages. There have to be consequences for an unlawful act that is a breach of human rights.
    I mention these points because of a fear that you and others have expressed, that the temptation may be for a head in the sand approach. Exposed vulnerable parts of the anatomy are never a good idea.
    I also look forward to what appears to be a real beauty parade of a conference.

  4. I was discussing with a friend the position of his mother — a frail old lady in hospital for investigations and possibly an operation. Sometime she wanted an operation, sometimes she didn’t, he said. Did she have capacity to take her own decision? I asked. Oh yes, he said. “Mind you, if she wanted to leave she couldn’t because she can’t get dressed by herself”.
    Would the staff have an obligation to help her dress if she wanted to leave?

  5. Hi Lucy. Am struggling with how this interfaces with MHA and my starting question is (I hope) relatively simple! Apologies if my terminology is incorrect.
    More and more people are being detained under the MHA as ‘not having capacity to consent to admission’. I think that this is often a back door way in to guarantee a hospital bed is secured ( when in the past voluntary admission was possible) .Plus my own experience is that instead of AMHP’s coming out to assess the police are being asked to remove someone from private premises under the MCA ( again likely to be be because AMHP’s coming out to assess without a bed available is causing difficulties).Obviously there are legal implications for the police that I won’t go in to here.
    I suspect that this is the unspoken policy of many a LA. However in light of the judgment if someone is removed from private premises under the MCA and/or detained for the above reasons at what point – if any – is authorisation required? Presumably at some point it would be argued that the MHA takes precedent but given that the person is removed/detained with stated mental capacity issues is there then a duty to consider seeking authorisation to avoid deprivation of liberty? And what would be a reasonable timeframe for the decision to be made that this was/was not necessary and the justifications? Would there need to be evidence of some sort of further Mental Capacity assessment once admitted to decide?
    I doubt if any LA actually has guidance and policy on this and maybe you will be able to clarify if this is needed. Because despite your s and 39 Esssex St’s excellent summaries/video my head is exploding!

  6. Hi Lucy, many tahnks for this, very useful as always.

    Where do you think the “acid test” leaves possible DoL in settings like A&E or out-patient clinics? There’s no intention in these settings to bring about indefinite DoL but that’s also true of the police when they put someone into a police van. I know the judgment doesn’t mention these cases but is there anything you think we can extract from it?

    Does anyone else have any thoughts on this?

  7. Hi Lucy and all
    I was thinking about your example of locking your colleagues into a room and going to the pub. I think this is where objection can still be a valid point to take into account when considering a DoL.
    I accept that objection is not always relevant But I would add the following scenario as an illustration, where i feel, we should still be routinely asking if there is an objection and that this can still have a relevance to DoL or no DoL.
    A person is not free to leave and objects to being in the environment, either vocally or by actions or both. They are not under constant supervision or control but as in Jo’s scenario above cannot leave.
    I would make a case that the presence of objection coupled with not being able to leave could well constitute a DoL although the supervision aspect is absent. Certainly, in my experience, BIAs have concluded this in the past and I would agree with them
    By the way, have you let your colleagues out yet?
    Best wishes
    Paul

  8. Thank you Lucy, excellent.

    I too struggled with “not free to leave” but no DoL. Having just had a conversation with a BIA about a situation very similar to that set out by Jo Murray above I am more able to see the possibilities. I do think hospitals are different as they are, in my experience, more structured and confined. I share the doubts about a “third box” and agree with Steve Benson.
    It also seems to me great care has to be exercised with the meaning of “continuous” or there is the risk it becomes the new way to avoid safeguards.

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