More trouble with MEG (now ‘Q’)

In a previous post I wrote about this Court of Protection judgment, considering whether two young women, ‘MIG’ and ‘MEG’, were deprived of their liberty in a foster home and a care home.  Today the Court of Appeal issued its judgment on the case, and found that neither sister were deprived of their liberty.  In my view, the Court of Appeal judgment has the merits of being rather more clear, concise and consistent than the High Court judgment.  These benefits notwithstanding, however, I’m afraid I still found it rather a disappointing, and I shall try to spell out why below.  For those of you with little time to spare, here are the ‘headlines’ of what troubles me:

• The reliance on whether a person is ‘objecting’ to their placement is problematic because: a) it diverges from the central message of the Bournewood judgment; b) it fails to protect the Article 5 rights of people who lack the wherewithal to object and the Article 8 rights of their families
•  The different comments by different judges appear to conflict on whether previous or possible alternative care arrangements are relevant to whether ‘deprivation of liberty’ is occurring.
• ‘Loss of autonomy’ and the exercise of coercive control is yet further removed from considerations of whether a person is deprived of their liberty or not.
• I think the case introduces a distinction between the meaning of ‘deprivation of liberty’ in the context of psychiatric detention and social care settings; a distinction that is not supported by much research into this area or my own experiences of working in these sectors.

Rejecting Bournewood?

According to the judgment, the appeal against the original decision rested on whether this passage from HL v UK (‘Bournewood’) meant that MEG (Q) & MIG (P) were deprived of their liberty:

...the Court considers the key factor in the present case to be that the health care professionals treating and managing [Mr HL] exercised complete and effective control over his care and movements from 22 July 1997, when he presented acute behavioural problems, to 29 October 1997, when he was compulsorily detained. [91]

The Court of Appeal argued that being subject to ‘complete and effective control’ was only determinative ‘in the present case’ – in short, that whilst it might have meant that HL was deprived of his liberty, it did not follow that it meant other people in other circumstances would be.  The court based its judgment on two primary grounds: whether the relevant person ‘objects’ to their placement, and whether it constitutes ‘normality’.  I shall take these in turn.

“Objections”

Part of Parker J’s reasoning that neither MEG nor MIG were deprived of their liberty rested on them being happy in their placements [204]; this echoed earlier cases like that of TG v LLBC (2007, [105]) and Re MP (2009, [17]).  The Court of Appeal took a different view; a person’s happiness is only relevant to whether a deprivation of liberty is in someone’s best interests, not to the question of whether it is occurring [24].  However, they did hold that whether a person ‘objects to the confinement which is imposed on her’ is relevant [25].  The reasoning is important:

If a person objects to the confinement, the consequence will be conflict. At the very least there will be arguments and she will suffer the stress of having her objections overruled. More probably, as in the case of Miss Storck, there will be tussles and physical restraints and even perhaps her forcible return at the hands of the police. This level of conflict inherent in overruled objections seems to me to be highly relevant to the objective element. Equally, however, the absence of objections generates an absence of conflict and thus a peaceful life, which seems to me to be capable of substantial relevance in the opposite direction. [25]

My points of disagreement can be summarised thus: 1) there are people for whom it may be very difficult to infer whether or not they are ‘objecting to their confinement’ but for whom we want to retain the right to say they are deprived of their liberty (HL, I will argue, fell into this category); 2) It does not follow, in these cases, that ‘the absence of objections generates an absence of conflict and thus a peaceful life’.  The difficulty turns on how one interprets ‘challenging’ behaviours.

In care homes and supported living services, there are a significant number of people for whom it will be difficult, if not impossible, to make sense of whether their behaviours can be said to amount to an ‘objection to confinement’.  As a support worker in care homes and supported living, I sometimes worked alongside people who had profound communication difficulties; I do not mean merely that they could not speak, but in some cases any form of communicative exchange was problematic.  They displayed behaviours such as self-harm, violent aggression towards staff, destruction of property, which certainly could be taken as evidence that they were unhappy in their placements, but it’s difficult to say whether they were ‘objecting to their confinement’, because that requires a certain degree of reflective insight into their situation.  The danger is that for people like those I’m describing, no behaviour could ever be taken as a clear sign of objection because nobody would take them to ‘have the capacity to conceptualise any alternative unfamiliar environment’ (MEG& MIG, 225), or even conceptualise their own confinement.

Put another way, for managing authorities (or even supervisory bodies) seeking to avoid the application of the safeguards, every possible sign of objection could potentially be interpreted a different way.  How are you to distinguish whether a person attempted to break out through the kitchen window because they were ‘objecting to their placement’ or just to their dinner?  How are you to distinguish whether they escaped from the mini-bus on a trip out because they were  ‘objecting to their placement’ and not to the music on the stereo?  How are you to distinguish whether they are self-harming because they hate their placement, they hate the staff and everyone in it, or because of some other reason that they cannot express?  These are not mere philosophical trifles, interesting ‘problem of other minds’ examples.  Examining (or failing to examine) why ‘challenging behaviours’ occur is the bread and butter of care provision, but it is not always easy to arrive at a conclusive answer.

I think HL himself may have fallen within this category.  The original decision to admit him informally to Bournewood hospital was made in the context of his not objecting.  The court heard evidence that he was ‘not distressed’ by his admission, he was ‘fully compliant with treatment and never indicated that he wishes to leave the hospital’.  The Health Service Ombusdman report paints a very different picture.  On visiting him, his carers perceived him to be agitated and distressed.  Where a person lacks expressive language, who is to say whether they are objecting or not?  Even, whether they are distressed or not?  What for some is a clear symptom of distress, may be ignored by others as a mere 'symptom' of mental disorder.  The requirement that a person ‘objects to their confinement’ is likely to place people who lack expressive language at a significant disadvantage; in short, they are much less likely to be deemed eligible for the safeguards.

Futhermore, the assumption that ‘the absence of objections generates an absence of conflict and thus a peaceful life’ is not, in my experience, necessarily correct either. In the circumstances I have outlined above, where a person’s behaviour cannot be meaningfully said to be an ‘objection to confinement’ or their placement in general, they may still be subject to considerable interventions – sometimes physical – which can only be described as ‘conflict’.  In my view, the older emphasis on the ‘degree and intensity’ of restrictions (given in the code of practice and in European case law) is preferable; it brings the restrictive, sometimes combative, responses to these ‘ambiguous’ behaviours back within the analysis of whether deprivation of liberty is said to have occurred.  It places the emphasis back on the use of coercive power within care settings, and does not make a requirement that we only respond to coercion when a person is able to frame a recognisable objection to it.  And in many ways, people who are confined and subject to 'complete and effective control', who lack expressive language to describe what is happening to them, are the most at risk of abuse or excessive restrictions within their placement.

It should be recalled, furthermore, that a person may not ‘object’ to a situation despite its being harmful to them; this is clearly recognised in case law where adults are removed – objecting - from the care of their families because it is said to be harmful for them (e.g., PCT v P).  The requirement for objection means a person may be confined in a care setting, where they are subject to ‘complete and effective control’, where it is not in their best interests – yet by virtue of the fact they are unable or unwilling to express it, they are denied the powerful benefits of the safeguards.  We recognise in other areas of mental capacity law that a person’s apparent compliance or consent may be subject to coercion or even habit, yet not be in their best interests – it seems counterintuitive and contradictory to abandon this principle here.

“Normality”

The situation of MEG & MIG was distinguished from that of HL by reference to where they were confined.  There is said to be a spectrum of normality, whereby ‘the most normal life possible’ is in the family home, ‘not much less normal’ in an adult foster placement, and ‘even when the person lives in an institution rather than in a family home, there is a wide spectrum between the small children's home or nursing home, on the one hand, and a hospital designed for compulsory detentions like Bournewood’ [28].

I want to score a cheap point first.  I wonder how many adults today would regard it as ‘normal’ to continue living with their parents, or ‘not much less normal’ to be in an adult foster placement – or a care home, or nursing home?  It’s a cheap point, but it highlights a more important and complex issue.  ‘The most normal life possible’ is the operative phrase here, where ‘possible’ means ‘for that individual (with their disabilities), in our society today.’  By what criteria do we assess ‘normality’?  It cannot be familiarity to the confined person, otherwise lifers in prison could not be regarded as ‘detained’ after a certain number of years.  Does it mean ‘most common’?  The number of people cared for in a particular kind of service?  Or does it mean something closer to ‘acceptability’ within the bounds of what our society consider a ‘normal’ way to deliver care?  I suspect the latter, although it’s clearly impossible to ascertain what the intended meaning was.

I want to briefly consider another case, which I think might turn out to have a bearing on this and related cases.  The Grand Chamber of the European Court of Human Rights recently heard the case Stanev v Bulgaria (note: judgment still awaited in this case, but a webcast of the hearing is here).  In this case, it was argued that Mr Stanev was deprived of his liberty in Pastra care facility in Bulgaria.  Bulgaria responded that they weren’t ‘detaining’ him but providing him with a home (recalls paragraph 230 of MIG & MEG in the High Court).  Counsel for Stanev argued that Bulgaria had a positive obligation to provide him with support in the community, to avoid the need for detention.  Such an argument could easily have been made in the domestic case, Re RK.  Counsel for Stanev also point out that the living conditions in the Pastra care home had been described as constituting ‘inhumane and degrading treatment’ by the UN Committee for the Prevention of Torture.  Bulgaria responded that perceptions of treatment were ‘individual and subjective’ and ‘will depend on their mentality and social status.’

Almost certainly, the care received by MEG & MIG is of a higher quality than that endured by Mr Stanev.  But the point is this: in Bulgaria, Mr Stanev’s conditions may be as ‘normal’ for someone with his disabilities and in his social circumstances as MEG & MIG's are here.  If we want to retain the right to say he is deprived of his liberty in Pastra care home, we cannot do so by reference to their not being ‘normal’.  We can only do so by reference to the degree of coercion and confinement he experiences, but this is precisely the analysis that is denied to us by this judgment.  Yes, it could be distinguished by reference to dignity and 'living conditions', but where living conditions are characterised by coercive control, should they be ignored from the analysis?

Another way of looking at it is this: why is psychiatric detention regarded as more paradigmatic of ‘deprivation of liberty’ than care in the family home?  Because, I venture, it is assumed to be less restrictive.  I think this is a belief that underpins this aspect of the judgment.  It does not fit with the ‘aesthetic’ or dominant discourses surrounding social care to admit that they might, at times, be very restrictive and coercive environments.  My experience, and reports like this, this, this and this (I could go on - but I won't) testify that this assumption may be misinformed.  The most restrictive environment I ever worked in was a supported living service where residents all received one-to-one, sometimes two-to-one 'continuous supervision and control'.  Service users were frequently shut in their rooms for ‘time out’ (whether wanted it or not); some service users were daily placed on ‘reins’ for long periods of time.  All the service users were subject to frequent physical interventions and PRN medication to ‘calm them down'.  I challenge anyone to argue that this is ‘less restrictive’ or ‘more normal’ than psychiatric detention; yet the courts are coming dangerously close to taking at face value that ‘supported living’ services and care homes are just that.  This judgment does not allow us to say the residents I supported were deprived of their liberty; such care could easily be argued to be ‘the most normal life possible’ for people in their position (whether it is a ‘good life’ is another question).  To quote Keith Ewing, in this wonderful Article entitled ‘The Continuing Futility of the Human Rights Act’, ‘The answer lies only with the Lewis Carroll and George Orwell schools of treaty and statutory interpretation’.  That is to say, the courts are coming close to taking ‘deprivation of liberty’ to mean what it suits them to mean, reflecting what we want to believe about social care, and thus engaging in Orwellian Newspeak, à la 1984.

A note on families, conflict and ‘safeguarding’

One final passing comment on a possible issue for families and Article 8 rights.  There have been cases where a person has been removed from the family home for ‘safeguarding’ or other reasons, where the safeguards may no longer apply.  Sometimes, as in the case of MEG & MIG there are excellent reasons for not permitting a person to return to the care of their families.  But there are cases, like that of LLBC v TG and that of G v E, where the ‘safeguarding’ allegations were later held to be false, and where it was found to be in the ‘best interests’ of the relevant person to return to their family’s care.  In the first place, TG was not ‘objecting’; in the second case, it was not clear that E was either (although it is said he ‘showed signs’ of preferring to return to his foster carer). If such cases came up today, managing authorities could lawfully refuse to apply for authorisation for the placement on the grounds the relevant person was not objecting.  Supervisory bodies could refuse to authorise it, on the grounds they were not objecting.  This would leave the families without access to the deprivation of liberty safeguards, which they might well need to challenge the placement.  The safeguards provide families and ‘detainees’ with access to expert independent advocacy services, non-means tested legal aid, and the right to refer their case to the Court of Protection without fee or ‘permission’.

Yes, these cases could technically be challenged by way of judicial review; but there are drawbacks to this remedy.  In the first place, the Court of Protection is a specialised court for dealing with these cases – whereas the administrative courts are not.  In the second place, there is no guarantee that legal aid for judicial review would be granted, it being subject to both means and merits tests.  In the third place, a finding that the removed family member was ‘deprived of their liberty’ would bring the case into the realm of a ‘limited’ human rights, which might have rather more force before the court than 'qualified' Article 8 rights or the vagaries of community care law.  A court might hesitate to authorise a deprivation of liberty where a person is manifestly better of being supported to remain with their family; but if it can hold that they are not ‘deprived of their liberty’ because they are not objecting, it may find that the breach of the family’s Article 8 rights is justified in the face of other considerations (chiefly – the cost considerations of supporting them at home).

[Edit: This post was published in Local Government Lawyer here.]

More reading:

Alan Norman discusses the case here in Community Care; I'm particularly fond of this extract from his article:

It seems to me that the correct conclusion that the Court of Appeal arrives at should have been arrived at by far simpler means. Sometimes, my students infer that Article 2, the Right to Life, is about quality of life, and I have to say, no, it is literally about life itself. Similarly here, Article 5 is not about the quality of our liberty, but about liberty itself. Surely it should be possible to say that an individual interference with a person's free will may or not be right, may or may not be lawful, but is not itself a deprivation of liberty?

Folks at Browne Jacobson  have posted a commentary here; of particular interest they state that the case is going to the Supreme Court.  The express concerns too:

However, the idea that a care regime in the family home which allows ‘the most normal life possible’ will usually not be a deprivation of liberty, may yet prove to be just as problematic. We foresee an argument that a care regime in a care home or hospital which allows P ‘the most normal life possible’ should not, therefore, be deemed a deprivation. And what do we mean by ‘normal’ anyway?

The Department of Health has posted a case summary here; I have concerns that the summary may not be an entirely correct or clear exposition of the judgment.  It states:

An important distinction appears to be emerging in these judgments that people living in their own homes or tenancies, care homes or in “acute” hospitals will, whilst being restrained in their best interests, typically not be deprived of their liberty as those “normal” regimes will typically not achieve that threshold in delivering the treatment or care to which they are unable to consent. If however, their family or carers are indicating that they do not want the person to be there and more importantly, if the person himself is indicating that he doesn’t wish to be there, then the question of their confinement arises and the question of deprivation of liberty is now engaged. Other factors to consider are the use of medication, social contact, and whether the person goes out of the home regularly to college, day centre or place of occupation.

The DH interpretation that typically restrictions in a person's best interests will not amount to deprivation of liberty outside of a psychiatric setting seems to rather undermine the entire principle of the safeguards.  Deprivation of liberty can only be authorised when it is in a person's best interests; on this reading how could it ever be authorised in a care home?  The DH, of course, only says 'typically', but there is no other case law or criteria by which to judge what constitutes 'typical' in this sense.

The 39 Essex Street Court of Protection Newsletter for March also discusses the case.  It's not up on their website as of 05/04/201, but they comment:

It might be said that the safeguards put in place by Article 5 ought to apply not just to those who have the capacity and/or temperament to cause a fuss...

The Court of Appeal said expressly that the decision was not influenced by ‘floodgates’ arguments and the risk that the courts would be inundated with applications requiring declarations sanctioning deprivations of liberty and the subsequent reviews required by Article 5(4), but it is easy to imagine such considerations being in play. A concern expressed by the government in the seminal Bournewood case was that if HL was deprived of his liberty, then so were many thousands of people in care homes and hospitals up and down the country. The end result was the introduction of Schedule A1, and it may yet be that the Supreme Court adopts a position which requires similar legislation to be introduced in respect of supported living placements.

I await the outcome of the Supreme Court case with interest.