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what is the right to liberty?

28 March 2017

Since the Cheshire West Supreme Court judgment in March 2014, deprivation of liberty has been one of the most challenging legal issues in the health and social care context, with hundreds of thousands more people now recognised to be deprived of their liberty and needing a due legal process for it to be made lawful. Ben Troke tackles some frequently asked questions.  

What is the right to liberty?

In the health and social care context, Article 5 of the European Convention of Human Rights provides that a person shall not be "deprived of liberty" unless they are of "unsound mind", a due legal process is followed and they have a right to challenge it.  

So what is 'a deprivation of liberty'?

There are a number of factors for Article 5 to be engaged, but for these purposes the key is the 'acid test' asserted in the Supreme Court judgment in Cheshire West in March 2014, that a person is deprived of their liberty when they are “under continuous supervision and control and not free to leave”.

It can happen in any setting – from hospitals and hospices, through care homes, supported living and domiciliary care in a person’s own home.  

What does 'not free to leave' mean?

It cannot only mean, narrowly, that the person doesn’t come and go from their placement or residence at all. Instead, the focus is on whether the person would be permitted to go and live somewhere else if they wanted to.  

There is a recent case (Ferreira, 26 January 2017) in which the Court of Appeal held that a patient who had died in intensive care had not been deprived of liberty there (though she had plainly been under continuous supervision and control). The principal reasoning was that the context of that case was very different from the long term residential care at stake in the Cheshire west case. But a secondary line of reasoning was that the patient in Ferreira did not meet the 'not free to leave' part of the acid test, because she was unable to leave anyway as a result of her illness.  It is not yet clear how widely that reasoning can be applied beyond that particular context, and there is a good chance that the Ferreira case will go on to be heard by the Supreme Court later this year.  

What’s the relevance of capacity?

Depriving someone of their liberty, in their best interests, can only be lawful under the Mental Capacity Act / Deprivation of Liberty Safeguards if the person lacks capacity to make their own decisions about residence and care.  If they have capacity to make those decisions, then there is no basis on which to deprive them of their liberty (unless some other legal framework is being used, such as the Mental Health Act or the criminal law).  

What’s the relevance of imputability to the state?

Another element required for Article 5 to be engaged is that the deprivation of liberty is “imputable to the state”. This can be because the care that constitutes the deprivation of liberty is either provided or commissioned by a public body (such as a local authority or the NHS), but recent case law (Staffordshire CC v SRK, Court of Appeal, December 2016) has held that even what appears to be an entirely private care package can engage Article 5 as a result of the state’s general obligations to protect people from arbitrary deprivation of liberty.  

What is the due legal process?  

A deprivation of liberty must be made lawful either by an authorisation under the Deprivation of Liberty Safeguards (DoLS) or an application to the Court of Protection.

DoLS only applies to care homes and hospitals. They can put in place themselves an Urgent Authorisation (valid for seven days, and renewable for another seven days), but must make an application at the same time for a Standard Authorisation, subject to assessments organised and granted by the local authority (valid for up to a year).  

In any other setting, the only option is an application to the Court of Protection. A streamlined process has been set up (called 'Re X') for doing this in large volumes for uncontentious cases.

And if not?

Failure to get such authorisation means that a person may be unlawfully deprived of liberty, and may be entitled to compensation. A claim could be brought against any provider which is part of the care package that amounts to a deprivation of liberty, as well as against any public body that commissions it.  

The value of any compensation for failure to follow due legal process will depend on the extent to which any material difference has been made to the outcome for the patient / service user, but even if only nominal damages are payable for a breach that made little significant difference, the legal costs involved can still be heavy.  

Ben Troke leads Browne Jacobson’s health and social care advisory team, dealing with all aspects of legal and ethical issues relating to patient care. He is recognised as one of the country’s leading Court of Protection practitioners as well as being a leading national speaker on MCA / deprivation of liberty.

This article was originally published in Care Markets in March 2017.


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