By Suella Fernandes
From Aristotle, Hobbes, Locke and Mill, to our 21st century Judges, notions of liberty- and its deprivation- have preoccupied many a wise man (and woman). In the health and social care context, the debate most often arises when those lacking capacity are detained under the Mental Health Acts; presenting a tension between the patient’s Article 5 right and the professional need to detain, not to mention confusion for many practitioners, clinical and legal. The ambiguities are not clarified by the Deprivation of Liberty Safeguards (DoLS), introduced in 2009 to address the “Bournewood gap”, i.e. the insufficiency in common law to protect those detained under the Mental Health Acts.
The safeguards are silent on the issue of what constitutes a deprivation of liberty, leaving practitioners to work with a “scale”, ranging from a restriction to a restraint and then a deprivation.
The current state of the law therefore leaves us with many unanswered questions: is the deprivation of liberty an absolute or relative right? How do we distinguish between restraints, restrictions and deprivations of liberty? Are those the only categories of limitation? In what circumstance could cumulative restrictions amount to deprivation? To what extent are objective comparators relevant in the assessment of the patient’s Article 5 right? How much subjectivity should be included in an assessment of someone’s right to liberty? How should the various factors be balanced? How do we ultimately protect our vulnerable- the mentally ill, the elderly and those in social care- from the risk of overbearing and interfering local authorities?
Munby LJ is one of the most recent hopefuls to analyse the nature of the Article 5 right and when the safeguards are triggered. In Cheshire West and Chester v P (2011) the Court of Appeal held that P, a 39 year old man with cerebral palsy and Down’s syndrome who lacked capacity to make decisions about care and residence, was not deprived of his liberty. P lived in a small group home that was not a care home and therefore not subject to the deprivation of liberty safeguards authorisation regime. Thus, any deprivation of liberty found to be occurring by the court would have required authorisation directly from the Court of Protection itself, and annual reviews by the court.
The case was heard by Munby LJ, Lloyd LJ and Pill LJ who considered under what circumstances the care of an incapacitated adult satisfied the “objective element” of deprivation of liberty under Article 5 ECHR.
Staff had complete and effective control over P, sometimes using a bodysuit, zipped at the back, which prevented him from getting at his incontinence pads which he had a habit of eating. Staff had also been instructed in the care plan, to “finger sweep” P’s mouth to clear it of matter which P had attempted to consume. This was considered by Munby LJ to be the most intrusive practice (para 9).
In determining whether a deprivation of liberty was occurring, he concluded (para 102):
a.    the starting point is the “concrete situation”, taking account of a whole range of criteria such as the “type, duration, effects and manner of implementation” of the measure in question. The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, not nature or substance.
b.    Deprivation of liberty must be distinguished from restraint. Restraint by itself is not deprivation of liberty.
c.    The context is crucial.
d.    In determining whether or not there is a deprivation of liberty, it is legitimate 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.
e.    Subjective motives or intentions, on the other hand, have only limited relevance. An improper motive or intention may have the effect that what would otherwise not be a deprivation of liberty is in fact, and for that very reason, a deprivation. But a good motive or intention cannot render innocuous what would otherwise be a deprivation of liberty. Good intentions are essentially neutral. At most they merely negative the existence of any improper purpose or of any malign, base or improper motive that might, if present, turn what would otherwise be innocuous into a deprivation of liberty. Thus the test is essentially an objective one.
f.    In determining whether or not there is a deprivation of liberty, it is always relevant to evaluate and assess the ‘relative normality’ (or otherwise) of the concrete situation.
g.    But the assessment must take account of the particular capabilities of the person concerned. What may be a deprivation of liberty for one person may not be for another.
h.    In most contexts (as, for example, in the control order cases) the relevant comparator is the ordinary adult going about the kind of life which the able-bodied man or woman on the Clapham omnibus would normally expect to lead.
i.    But not in the kind of cases that come before the Family Division or the Court of Protection. A child is not an adult. Some adults are inherently restricted by their circumstances. The Court of Protection is dealing with adults with disabilities, often, as in the present case, adults with significant physical and learning disabilities, whose lives are dictated by their own cognitive and other limitations.
j.    In such cases 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. The contrast is with the kind of lives that people like X would normally expect to lead. The comparator 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 as X. Likewise, in the case of a child the comparator is a child of the same age and development as X.
The effect of this decision is to effectively raise the threshold for establishing a deprivation of liberty. The scope is narrowed such that even where a patient is under the complete and effective control of the authorities, no deprivation of liberty will occur and the safeguards will be not apply. So, an incapacitated adult or elderly person may be subject to a high level of control by the state before they are afforded the protection of the safeguards. This has the effect of rendering the safeguards more obsolete; this despite their aim of protecting people precisely in P’s condition.
The decision provides guidance but does not assist in answering the big questions pertaining to deprivation of liberty. It seems that we are far from reaching a notion of absolute liberty and the “relative normality” concept set out above will add to the uncertainty as constructions of “normal” in any particular set of circumstances will necessarily vary. Deprivation of liberty for someone who requires constant care will be different to deprivation of liberty for someone who does not. This is arguably discriminatory. With no absolute concept in place, more inconsistent and faulty decisions will occur.
It appears that the jurisprudence has moved full circle to a pre-Bournewood position where patients are now left with ineffective safeguards. This is of concern in light of recent national reports that have identified serious issues relating to the human rights of the elderly and adults in health and social care1. This leaves our most vulnerable even more unprotected and open to unchecked control by the state.
1CARE QUALITY COMMISSION (2011) ‘Dignity and nutrition inspection programme: National overview’.