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'All Dolled Up?' - Deprivation of Liberty in practice after the Supreme Court judgment in Cheshire

24 March 2014

Ben Troke asks if we now have clarity on the murky issue of what is a deprivation of liberty and, if so, at what cost?

On 19 March 2014, the Supreme Court, led by Lady Hale, handed down a long awaited ruling in the conjoined cases of P v Cheshire West and P & Q v Surrey on the meaning of 'deprivation of liberty' for people who lack the mental capacity to make their own decision on residence and care package, as set out here.

Essentially, the Supreme Court decided that universal human rights and equality mean that the threshold for deprivation of liberty must be the same for everyone, regardless of any disability, and that the existence of a deprivation is wholly distinct from any justification that may make it lawful – “a gilded cage is still a cage” in Lady Hale’s words.

But as the dust settles, has it now brought clarity to this issue, and if so at what cost and what will the practical consequences be?

Clarity?

The law is now certainly a bit clearer:- if P is 'under continuous supervision and control and is not free to leave', then there is a deprivation of liberty (ECHR Art 5).

The purpose, benign or otherwise, the 'relative normality', and P’s own compliance are all irrelevant (as, surely, are a number of other factors considered in other cases – such as the comparison between P’s situation now and previously – see P & Q v Surrey CC, Court of Appeal - and whether there is any alternative placement available – see C v Blackburn with Darwen).

We might still expect some uncertainty where

  • P is not free to leave, but is not 'under continuous supervision or control' (or vice versa)
  • we might argue over when something we would like to think of as 'support' is actually 'control', or
  • when the test logically drives us to finding a deprivation of liberty in the family home but we are instinctively uncomfortable using that phrase in a domestic setting (as were the minority in the Supreme Court in the Surrey case).

On this last point, Lord Kerr’s judgment in the majority might also have important implications. He agreed that there can be circumstances where a deprivation of liberty occurs in the domestic home setting, but rather than focus on rejecting the concept of 'relative normality' of the setting he raised a slightly different point of comparative age. He stated that all children have control exercised over them by parents which as a matter of 'objective fact' amount to a deprivation of liberty. However, as teenagers, such as P and Q, grow older they would ordinarily enjoy greater freedom of movement which, in this case, they did not have due to their disabilities. He concludes “they can – and must – be compared to children of their own age and relative maturity who are free from disability and who have access… to a range of freedoms which MIG and MEG cannot resort to”. It would seem that having firmly rejected the concept of 'relative normality' in relation to residential care, these comments could be read as reintroducing it in the difficult area of management of teenage freedom of movement.

Costs and consequences?

On any view, though, Lady Hale’s 'acid test' above could be expected to describe the situation of, among others, a good many of the estimated 800,000 people with dementia (of whom around 200,000 are in care homes) and the 1.5m people with a learning disability – rather more than the current 2,000 or so who are under a Deprivation of Liberty Safeguards authorisation at any time.

Certainly, this Supreme Court judgment will do little to allay concerns expressed in the recent House of Lords report on the MCA / DOLS (13 March 2014) that 'thousands or tens of thousands' of people are being deprived of their liberty without due process. They also recommended that the Safeguards should be extended to supported living.

As well as NHS bodies and local authorities, private sector providers of residential care will also have to urgently review their practices and residents, as lawyers acting for patients and their families will no doubt do.

For local authorities, in the light of Lord Kerr’s comments, there is a new complication, which is to consider the position of adolescents in foster care whose behaviour may require restraint or restriction of movement. The law now clearly requires such cases to be scrutinised and if there is a concern that the restrictions placed on the child go beyond that of a comparable child, who would ordinarily enjoy greater freedom, then an application to Court must be made.

Come what may, we can now expect a surge in referrals to DOLS teams and to the Court, where resources are already under great pressure. There is a requirement that public bodies must actively seek to ensure such applications are made - it is not sufficient to rely on the fact that no one is objecting to the arrangements. This increased workload will, of course, include the demand that will come with the person’s right to regular review of their situation (Under Art 5(4)).

DOLS authorisations can only be for 12 months maximum, and review by the Court of deprivations outside the scope of DOLS should be no less frequent (Munby LJ in BJ v Salford CC.  NB even with an annual review on paper only, as in that case, it still involved submissions from counsel for the Official Solicitor and the local authority, a witness statement from the social worker and evidence from 2 psychiatrists).

The resource implications could be colossal and, with the irony that the judgment was handed down on budget day, local authorities and others already facing the impact of austerity may now be under further pressure. Lady Hale seemed to recognise this, albeit without explicit reference to the House of Lords report, saying that the periodic checks “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)”.

Those involved in these cases can also expect a lot more open scrutiny following the recent Practice Guidance (January 2014) that cases involving a deprivation of liberty should presumptively be published.

This greater openness may actually be a crucial part of the effective implementation of the approach that Lady Hale intended.  She was at pains to point out that people must come to understand that depriving someone of liberty is not necessarily an inherently bad thing, despite the negative connotations of the phrase. The House of Lords’ recent report made the point that the 'nomenclature' of deprivation of liberty is 'unhelpful', and 'protective care' might carry a more positive tone, though in practice we cannot get away from the wording of Article 5 of the European Convention. We must get used to telling it how it is, or it may be effectively impossible to ensure that the appropriate safeguards are put in place in those situations.  'Deprivation of liberty' needs a significant PR offensive.

We await with interest the government response to the judgment and the House of Lords’ report, and any proposals to amend the law, and in particular whether DOLS (or its simplified replacement) will be expanded to cover community settings. But in the meantime, we have to work within the systems and processes that we have, and the real 'acid test' may be how the new definition of deprivation of liberty is applied in practice. As Norman Lamb told the House of Lords committee, “you can get it absolutely right on paper but it does not necessarily mean that it happens on the ground and changes people’s lives”.

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