Liberty alert!

The government is consulting on reforming the Human Rights Act 1998 (HRA), creating a so-called ‘British Bill of Rights’, which is code for removing the bits of the HRA that prevent governments and ministers from driving through policies or practices that judges have ruled violate people’s human rights. Conor Gearty has written an excellent post on why the proposals are incoherent and full of empty gestures.

A DoLS colleague just drew the following passages in this report to my attention:

In Cheshire West (and linked cases) the UK Supreme Court considered whether various placements of mentally ill individuals with foster carers or in small homes constituted a deprivation of liberty under Article 5 of the Convention, even though there was no suggestion that the placements were not in the best interests of the individuals or that they would have wanted to live elsewhere. The Court concluded that it would be a breach.  

A minority of the UK Supreme Court thought that there should not be a ‘universal test’ for deprivation of liberty. They believed it was a matter of degree and decisions should focus on the ‘concrete situation’, arguing that ‘nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty’. At the time, Jon Holbrook, a specialist practitioner in the field noted: ‘Substantial quantities of time, money and energy will be diverted from providing care to completing forms and engaging lawyers.’ Observing that this judicial change to social policy took place without public discussion or debate in Parliament, Holbrook concluded:

‘Viewed through the distorting lens of human rights, care homes and hospitals, providing comfortable living arrangements, may look like gilded cages. Those deciding social policy need better and clearer vision. It’s time for social policy to be liberated from the distorting influence of human rights laws.’

Ministry of Justice (2021) Human Rights Act Reform, paras 159-160

Out of the vast panoply of opinions on the Cheshire West acid test – considered multiple times in courts, by academics, by the DoLS commentariat, and most pertinently by the Law Commission when it consulted on reforms to the deprivation of liberty safeguards and by Parliament when it recently enacted the Mental Capacity (Amendment) Act 2019, this is an interesting one to pick. Holbrook is not someone I would immediately think of if asked to think of leading experts on this area of law; a search of BAILII for Court of Protection cases giving him as counsel brought up only one , in which the judge had cause to say this:

I am bound to say that Mr Holbrook’s arguments bear little resemblance to my experience of what goes in the Court of Protection today and over the last almost ten years.

DL v v London Borough of Enfield [2019] EWCOP B1

Holbrook describes himself as ‘cancelled by the woke’ and you can google for yourself the reasons why. He is a critic of the Human Rights Act and equality law (including disability equality protections). Here is the full article by Holbrook criticising Cheshire West. If you cannot read beyond the paywall know that Holbrook’s beef is that this reverses a policy trend enacted in the 1950s (starting with Lord Percy’s review, leading to the Mental Health Act 1959) which basically removed the law from vast swathes of of care of people that Percy called ‘non-volitional’ and ‘childlike’ – mainly people with dementia or learning disabilities.

In the book I’ve just written about the history of these systems for regulating social care detention, their strengths and weaknesses , and the impact of the Cheshire West acid test, I spend quite a lot of time considering the views of Holbrook and others like him. I do actually (perhaps surprisingly) have some sympathy with Holbrook when he argues that ‘Human rights laws constrained the court to ask the wrong question and to miss the issues that a social reformer would have addressed.’

By focusing on abstract legal questions of the meaning of deprivation of liberty we overlook the really pressing social policy issues that motivated people to argue for ‘deprivation of liberty safeguards’ in the first place. This not only converts important public policy debates around ‘placements’, safeguarding and restrictive practices in social care into technocractic legal argument, but makes the whole system of safeguards highly vulnerable to the twists and turns of legal wrangling over the meaning of ‘deprivation of liberty’. For example, the Court of Appeal and government’s line that deprivation of liberty means only ‘macro’ questions of whether a person can leave permanently rather than the ‘micro’ restrictions they are subject to means that all kinds of critical issues potentially fall outside the remit of the safeguards, including: restraints to manage ‘challenging behaviour’, restrictions on contact, controls to prevent a person having sex, or requiring vast numbers of people to isolate in their rooms for weeks on end during a pandemic…

The clear policy intention of Lady Hale in Cheshire West was to secure an ‘independent check’ on the living arrangements made for people she described as ‘vulnerable’ and lacking capacity. (As an aside, I think it is clear that Lady Hale did intend to include ‘micro’ restrictions within the scope of this check, including the control care staff exercised ‘over every aspect’ of the appellants lives, such as not being ‘allowed out without supervision, or to see people whom they did not wish her to see, or to do things which they did not wish her to do.’ [52]). Lady Hale does not say precisely what they might be vulnerable to (because legal questions of ‘liberty’ submerged questions of policy), but the logic is that although in this particular case the care arrangements were ok enough for the courts to authorise them, in other cases they might not be, and there is no way of telling which cases need ‘scrutiny’ without scrutinising them. That’s just regulatory basic maths. To pick out the ‘bad’ cases for regulation is like asking for only bad drivers to sit their driving test, or only tax avoiders to fill out a tax return. The key question is what these systems of safeguards should look like and what should trigger their involvement.

For Holbrook, the kinds of routine scrutiny of care arrangements envisaged by Lady Hale are unnecessary:

Universal third party oversight of care arrangements might be desirable if those lacking capacity were routinely deprived of adequate care. But this is not the case.

Jon Holbrook (2014)’A distorted view’

The problem is, for anybody who has spent any length of time relying on care, working within social care, researching it, it is abundantly clear that people who ‘lack capacity’ are very very often deprived of ‘adequate care’. I guess a lot turns on what you mean by ‘adequate’; clearly the standards I and most others would hope for from social care come quite far apart from Holbrook’s.

As I outline in more detail in the book, and many others have documented, the care sector itself is falling apart and has been for some time. We are still heavily reliant on models of care that are intrinsically restrictive and institutional, which stems in large part from our cultural legacies of institutionalisation and the economics of care which tend towards congregate, segregated and regimented models of care provision. Public confidence in ordinary care regulation is low (and service-level regulation cannot penetrate the kinds of individualised practices and concerns that DoLS are supposed to address). There is serious concern – including from the regulator – about excessively restrictive care, about blanket rules, closed cultures. There are concerns about the use of antipsychotic medication to ‘manage’ people living with dementia, people with learning disabilities and autism, instead of working out what is going wrong for them in their environment; medications that carry tremendous risks or mortality, morbidity and harm to wellbeing. Cash strapped local authorities are having to make dire decisions around rationing and placing people in what they know to be inadequate care services. Meanwhile the Mental Capacity Act 2005, which is supposed to regulate some issues around restrictive practices and ‘placements’ in care services, is known to be poorly implemented with little systematic oversight even when it concerns fundamental questions such as where a person lives, who they see, whether they can form or maintain relationships with others. To my mind, Holbrook’s mindset is of a piece with a 1950s outlook that we can just bung certain cohorts of people into ‘care’ and forget about them, trusting that doctors and care staff know best. A mindset that was exploded with Ely and all the scandals since then, before being utterly toppled by the growing recognition that disabled people have (I’m going to say it…) equal rights to others…

There are, I think, problems with using ‘deprivation of liberty’ as an anchor for any system of safeguards which has to apply in the ‘community’, but ultimately, at this moment in history, this is all we have. Holbrook and co are not proposing a more appropriate social policy based model for regulating rights and freedoms in care. They are proposing taking away the only individualised source of scrutiny and challenge available to hundreds of thousands of people reliant on care in England and Wales by defining them out of the system of safeguards. So we need to proceed with the utmost caution here.

Who is it that Holbrook wants to take out of this protection? People who the dissenting justices described as ‘living happily in a domestic setting’. There’s a lot packed into this pithy little soundbite that I unpick in the book and this paper. I have deep concerns about these proposals, but there are two problems gestured at here that I have some sympathy with.

Firstly, I argue that people who are not only ‘not objecting’ but are positively happy with their living arrangements, who are not actively coerced through restraint (physical, mechanical, chemical), people like Steven Neary – ‘king of his castle’ in his own home – should not be considered deprived of their liberty. The reason I think that is because this is the goal the entire social care system (including liberty safeguards) should be striving for. If we start labelling people who are living their best life, with support they actively want, to live the lives they want, in authentic homes, as ‘deprived of their liberty’, then the whole logic of the system collapses – because they can never be free. And we can only say that the law regards someone like Steven Neary as still detained whether locked up in a care home he actively tried to escape from, or (to paraphrase Social Care Future) living in the place he calls home with the people and things that he loves, in communities where we look out for one another, doing the things that matter to him.

That doesn’t mean I don’t think people like Steven need some safeguards though. It is far too easy to simply assert that someone is ‘happy’ to circumvent the safeguards and scrutiny needed, especially if that person is institutionalised, cowed, coerced, sedated, scared of rocking the boat or whose behaviour is very unclear in how they are responding to and feeling about their living arrangements. When I read the facts about P and MEG, both of whom are physically restrained for ‘tussles’ or ‘outbursts’ with staff or other residents, and in particular MEG who is prescribed antipsychotics for ‘anxiety’ and whom the Supreme Court describes as ‘yearning’ to return to live with her previous foster carer, I find it hard to think how they could be considered as positively happy with their living arrangements. At best they are not actively objecting to them, but that is a different thing. In the book I argue that this replicates the logics of Percy’s description of some disabled people as ‘non-volitional’ – as not really having a ‘will’, whose feelings and behaviours are pathologised away and not considered worthy of serious consideration and engagement.

For this reason I think it is dangerous to simply be able to slap a label of ‘non-objecting’ or ‘content’ on a person and move on. We need robust safeguards for legal capacity for everyone who is assessed to ‘lack capacity’ and for whom many important decisions about their living arrangements are made by other people. The kinds of safeguards actually proposed by the Joint Committee on Human Rights and tabled as an amendment to the Mental Capacity Amendment Act 2019 by Lord Wolf, which the government rejected. The proposals would embody the recognition of Article 12 of the Convention on the Rights of Persons with Disabilities (no doubt an instrument that Holbrook is not a big fan of), which essentially says that regardless of ‘mental capacity’ a person can still give a legally valid consent to their care arrangements provided there are robust and independent safeguards to ensure this is in accordance with their ‘rights, will and preferences’ and they are not being actively restrained or coerced. If the living arrangements cannot reasonably be said to reflect person’s ‘will and preferences’, then these ‘legal capacity’ safeguards will need to become deprivation of liberty safeguards.

The second issue that is gestured at in the proposals to limit the definition of ‘deprivation of liberty’ is that of ‘home’. As I’ve written about recently, and at much greater length in the book, ‘home’ is a hugely important but also really slippery concept. Holbrook appears to be reliant either on a technocratic legalistic definition of home (as in, a setting that CQC would consider to be ‘private premises’ and not regulate as ‘accommodation together with support) or else a fantasy of the kinds of living arrangements involved in the case. Let’s come back to MIG’s situation shortly and think about MEG and P for now. MEG lived in what the Supreme Court described as ‘an NHS facility, not a care home, for learning disabled adolescents with complex needs.’ This is what some might call a ‘small group home’, but it plainly is not what anybody would describe as an ordinary home, just regular housing stock. P lived in what looks to be ‘supported living’, a type of specialist accommodation that under regulatory law is considered a form of housing with support, but which in reality can operate in really institutional ways that can be hard to distinguish from care homes in terms of their day to day dynamics of care and control. These liminal spaces might be labelled as homes, and may confer some of the benefits of home, but they can also replicate many of the harmful and sometimes dangerous dynamics of institutions, including the same kinds of concerns about excessively restrictive care, limits on rights to families and freedoms, supervision and control as ordinary care homes do, and sometimes even abuse.

Libertarian critics of Cheshire West love to point to our history as a reason why the ruling is wrong. However, if we look back to the history of systems of safeguards on institutional confinement, ‘institutions’ were defined minimalistically – as locations where ‘two or more’ people were ‘kept as lunatics’ (sorry, that was the term used at the time) for profit. So the critical issue was whether a person was simply living somewhere or being ‘kept’ – that is, under some kind of control – and whether there was profit involved somewhere along the line. This meant that a place could be considered an ‘institution’ even if it was a private domestic home, because of the involvement of profit-making persons or entities exercising control over a person. (The ‘two or more’ rule was to try to preserve the privacy of very wealthy people who ‘kept’ their relatives in ‘single houses’ to avoid exposure. These were not directly regulated as institutions but ‘single patients’ still had safeguards and were visited by the Commissions).

I do, however, share a background concern of the dissenting justices (and probably Holbrook as well) about regulating wholly ‘domestic’ care as a deprivation of liberty which involve families. I am thinking here of people living with families, or in what the King’s Fund once called ‘ordinary homes, on ordinary streets’ – that is the kinds of houses and flats that most people in the UK live in, not intrinsically segregated accommodation like supported living (or other kinds of housing with support). I am particularly alarmed by the thought of families being told that they are ‘detaining’ their relatives by caring for them. Not because I think that family care is necessarily less restrictive; often it can be highly restrictive. Not because I think there are not cases where families are overly restrictive, even abusive; of course they can be. But because ‘deprivation of liberty safeguards’ are the wrong legal model for tackling concerns about family based care.

Systems like the DoLS (and the LPS, and the Mental Health Act 1983) are part of what in my book I call the ‘law of institutions’ – legal frameworks developed from the late eighteenth century onwards to regulate the threats of institutionalised carceral care. They are concerned with regulating ‘institutions’ (even those in the guise of ‘homes’), not regulating all forms of care. To work properly they need an administrative interface and legal and regulatory levers that families simply lack. Meanwhile families are likely to be alienated by being told they are ‘detaining’ their relatives precisely when what is often needed is solid working relationships with local authorities. I have no problem with beefing up a person’s rights to assessment where families are obstructive, no problem with ‘safeguarding’ measures (properly implemented, with better oversight than currently) where there are concerns, no problem at all with disabled and older people being supported to live apart from their families if that is what they want. But as I wrote in the book, labelling family based care as a ‘deprivation of liberty’ is likely to be counterproductive and ‘holds considerable potential for a toxic political backlash against not only social care detention’s primary legal structures (MCA DoLS/LPS) but human rights law itself.’

So here we are.

So what to do? Well, it’s quite possible this proposal will be sunk for other reasons, but it is equally possible that this government and others like it will continue to seek to erode or replace the Human Right Act. Cheshire West is a real hostage to fortune here. It will only take a few families, having been told they are ‘detaining’ their relatives, speaking to the right media outlets, for these gathering clouds to become a fully fledged political storm that spells disaster for people with no other effective systems of safeguards for their fundamental rights. The risks of this multiply when the LPS come into force (whenever that is). It seems to me that we need to act fast, to formulate proposals and gather a coalition for a workable definition of ‘deprivation of liberty’ to be submitted for consultation and tabled should these specific proposals go ahead. If you are interested in being involved, drop me an email and I’ll try and get back to you in early January.

For my money, the Cheshire West acid test is actually an extremely good ‘red flag’ to situations where people are highly ‘vulnerable’ to excessively restrictive care, or to interferences with other fundamental rights, such as rights to family life and relationships with others, to home (ironically), to everyday freedoms. If reforms to human rights law are inevitable, we could use this opportunity to fix the problems with a ‘macro’ reading of deprivation of liberty, clarifying that this relates to all forms of continuous supervision and control within care services not merely those designed to stop a person from leaving ‘permanently’. We could use it to create robust safeguards enabling people who are living where they want to live, supported by people they want supporting them, to live the lives they want to lead, without active restraint (physical, chemical or otherwise), to be recognised as having a ‘will’ and granting them the legal agency to consent. We could also use this moment to clarify that these legal frameworks should only be used to regulate ‘institutional’ care – that is, care which is provided or arranged by local authorities, NHS or registered service providers (I will put a pin in paid ‘personal assistants’ and ‘shared lives’ carers to think about later). They should certainly not be used to regulate families, other tools are available to work with families where there are concerns or support people to move out or safeguard their rights if there are concerns.

I know this isn’t the black and white ‘Holbrook’s completely wrong! the government are absolute monsters!’ some of you might want. But look, if they come for the Human Rights Act and rights to liberty people ‘living happily in ordinary domestic settings’ are a reasonable challenge to the validity of the scheme, that we need an answer for. We need to explain that actually lots of people are not ‘living happily in ordinary domestic settings’ as this judicial fantasy suggests, but that where people really are happy, and/or where their care is provided directly by families, alternative systems of safeguards are more appropriate than regulating this through the machinery of article 5.

Who knows, perhaps one day this country might be ready for a more serious policy debate about a positive vision for what we want our social care systems to deliver (beyond cost savings), and what kinds of rights and ‘safeguards’ would be most appropriate to help secure that.

One thought on “Liberty alert!

  1. The Chester West judgment has expanded judicial oversight extensively for relatively little benefit given the costs involved. But the idea that this is down to ‘human rights’ is amusing. As stated correctly in this blog, this is because we have inadequate tests.

    One such of these is ‘capacity’ which is fairy limited and binary in terms of a legal test. I would argue that the example of Steven Neary demonstrates that he has both awareness and desire which shows some capacity even if it doesn’t reach a legal threshold as currently designed.

    If there is an opportunity here, it is less in human rights as humanising rights. That is to enable a framework that genuinely centres the individual rather than the institutions we build. Even the “gilded cage” is focused on the institution.

    The growth of DoLS way beyond what legislation states (community DoLS) or intended highlights the weakness of law. We have a huge tick box culture and little protection. Before “rights” and “safeguards”, we need to think about life and living.

    So I agree with the thrust of this blog but I wonder if law can really be anything more than a tick box? Policy is so much more nebulous.

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