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Behind closed doors...
13 July 2010
A recent judgment addresses profound issues about the extent to
which the state should reach into the family home, even to protect
vulnerable adults and children who may be deprived of their
liberty, and could also affect the way we use the Deprivation of
Liberty Safeguards in the public arena.
Re A and Re C
The facts are fairly simple, though the judgment is not. There
were two separate linked cases heard together, by Munby J (now Lord
Justice Munby) in July 2009, though it took nearly a year to hand
down the judgment [2010] EWHC 978.
A is an 8 year old girl, and C is a 20 year old young woman.
They are not related. They are both at particular risk at night,
due to a genetic condition (Smith Magenis syndrome) associated with
learning disability, disturbed sleep patterns and serious self
harming behaviour. They both live at the family home, and to keep A
and C (and other members of their families) safe, each family has,
as a last resort, taken to locking their daughter in her bedroom
overnight. It was agreed by all involved that there was no other
real alternative.
The Court had to consider whether this is a deprivation of
liberty (DoL), to engage Article 5 of the European Convention,
despite being only an act of private individuals rather than the
state, and what role the state, through the local authority, has in
such cases.
The definition of DoL and the role of the
state
Munby J relies on the familiar three part definition of a DoL to
engage Article 5:
- A or C is being confined in a particular restrictive space for
a not negligible period of time, sufficient to amount to an
objective deprivation of liberty (see below)
- A or C has not validly consented to the DoL (the
subjective element - agreed that neither A nor C had
capacity to validly consent to the bedroom door being locked
overnight)
- The state is responsible for the DoL
The local authority’s mere knowledge of what was going on in the
family home was not enough to make the state responsible for this
regime. Munby J spoke in powerfully critical terms of the local
authority “mindset” he had seen in other cases (not, he took pains
to emphasise, in this case) of seeking to exercise “control” over
vulnerable adults and children, behaving “high-handedly” -
sometimes without legal authority - notwithstanding their good
intentions. The local authority’s role is to assess needs and to
provide support, and to enlist the help of the Courts if more
intervention is required.
Positive obligations under Article 5
However, Article 5 is not limited to protecting the individual
from interference with liberty by the state. There is also a
positive obligation on the state, through the local authority, to
take positive steps to protect people from such interference by
other private individuals.
This means that where the local authority thinks that a
deprivation of liberty might be occurring in a private household,
it has obligations to:
- Investigate (and continue to monitor) whether there is a
deprivation of liberty
- Take steps to intervene to bring any deprivation to an end –
perhaps by providing additional support and resources
- If not resolved, to bring the case to Court
It was submitted that the local authority would be in breach of
its positive obligations under Article 5 if it was aware of a
possible deprivation of liberty in a family home and failed either
to prevent it, or to seek the Court’s sanction to render it lawful.
The judge seems to reject this submission, which some authors think
contradicts the points made above. But it is also possible to read
his comments as holding that the local authority here cannot be
criticised for any failure because it did investigate and bring the
matter before the Court. The least that can be said is that this
part of the judgment is not straightforward.
Objective deprivation
Everyone who works with issues surrounding deprivation of
liberty will be used to wrestling with the uncertainty as to
whether a deprivation is occurring. There is no definition in
statute, and the Code of Practice to the Deprivation of Liberty
Safeguards says, helpfully, that “there is no simple definition of
a deprivation of liberty”.
Through case law, we have come to understand that it is a
question of degree, including issues of the nature, extent,
duration, and intensity of the restrictions imposed, and that there
is a massive grey area between running freely across a field at one
end of the spectrum, and being imprisoned at the other end.
Surprisingly, Munby J holds that, despite being locked in a room
for 10-12 hours at the stretch, neither A nor C were deprived of
their liberty. The context is everything. The judge quotes at
length from a recent judgment of Parker J in re MIG and MEG ([2010
EWHC 785 fam - the transcript for which is not yet available). He
also refers to the House of Lords Judgment in Austin [2009] UKHL 5,
in which a person was kept “kettled” in a confined area with the
May Day protestors in 2001 for up to seven hours, but the Lords
held that she was not deprived of her liberty, at least partly
because the police had acted reasonably and proportionately to
manage public order, and deprivation of liberty was not their
intention.
In Austin, Lord Hope made a powerful comment warning that
“if confinement amounting to a deprivation of liberty… is
established, good intentions cannot make up for any deficiencies in
justification for the confinement…”. Munby J accepts “that
the question of intention in the sense of mental attitude is
irrelevant to the question of whether someone is deprived of their
liberty”. Nonetheless, both Munby J and Parker J talk about A
and C, MIG and MEG not being deprived of liberty in the family home
due to the “purpose” or “context” of the confinement, because, for
example, they didn’t object, and the restrictions were in their
best interests - not to punish them, and were imposed in good
faith.
For the purposes of the Deprivation of Liberty Safeguards, these
factors may be relevant to whether a deprivation is justifiable and
lawful, but none of them would show that a deprivation of liberty
is not occurring in a care home or hospital. Essentially, the
judges say that where a family caring regime is in good faith, it
is not likely to be held to be a deprivation of liberty, and the
common law doctrine of necessity will be enough to make this
lawful.
Conclusion
The reliance on the common law doctrine of necessity, and the
good faith of clinicians, was precisely the problem in the key case
of Bournewood, where the European Court of Human Rights held that
this allowed no procedural safeguards or due process by which a
deprivation of liberty could be challenged.
For exactly this reason, the issues of good faith and good
intentions are NOT to be taken into account when DOLS assessors
consider whether there is an objective deprivation of liberty for
the purposes of the Safeguards, which were introduced in response
to Bournewood.
It might be appropriate to have different standards as to what
is a deprivation of liberty according to whether it occurs in a
family home, or the public arena - it seems likely that being
locked in a room in a care home or hospital for 12 hours would be a
deprivation of liberty for the purposes of the Safeguards – but
such differing standards can cause confusion. As more case law
arrives on deprivation of liberty, the task of the DOLS assessors,
and the role of the local authorities, is not getting any
easier.
And, since it is not unusual that it took nearly a year for the
judgment in this case to be handed down, is it realistic to expect
the Courts to cope with many more applications by local authorities
to meet their positive obligations under Article 5 to investigate
and intervene in what goes on in family homes, behind closed
doors?
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