3. Ongoing uncertainty over the meaning of 'deprivation of liberty'

This post is the second in a series of three posts on the lawful use of restraint, and its relationship to deprivation of liberty.  It relates to the rulings in C v A Local Authority (2011) (Re C) and Cheshire West and Chester Council v P (2011) (Re P). The first post was on the importance of recognising restraint where it is occurring. The second post was on the expanded legal guidance set down by the Court of Protection on the use of restraint under the Mental Capacity Act (MCA).

As Allan Norman comments in Community Care, the cases show, along with Steven Neary v Hillingdon Council, ‘the manifold devious ways in which attempts are made to deprive of liberty without proper scrutiny are still a problem, 800 years after Magna Carta.’  The manipulative behaviour of Hillingdon Council in the Neary case, and the misconduct of employees of Cheshire West & Chester Council in Re C do rather suggest that local authorities were fairly consciously attempting to avoid proper scrutiny; and I don’t doubt that this problem may be significantly more widespread.  But I wonder also how far these situations are arising as a result of genuine confusion, or perhaps  exploitation of legal uncertainties in the evolving meaning of 'deprivation of liberty' in Court of Protection case law.

Towards the end of the ruling in Re P, Baker J considers whether the local authority should bear the costs of the Court having to rule on whether P was deprived of his liberty or not because they chose to contest it.  Baker J concluded that 'The local authority's decision to contest that issue was not, in my judgment, unreasonable, in particular having regard to the decision of Parker J at first instance in Re MIG and MEG' [76]. The ruling in the first instance in MIG and MEG (2010) was a cause for alarm for several observers (myself included), because it appeared to conflate the question of whether restrictions were in a person's best interests, with whether they objectively amounted to deprivation of liberty.  It seemed dangerously as if Parker J herself was falling into the trap outlined by the Mental Health Alliance in their report on the deprivation of liberty safeguards:

One especially common misunderstanding – which appeared to be shared by some best-interests assessors as well as care providers, and which may derive from the tenor of some Government guidance – was that actions which were necessary in the person’s best interests would not amount to deprivation of liberty, thereby confusing the person’s objective situation with the justification for it. (p6)

The recent ruling seems to acknowledge the confusion the MIG & MEG judgment caused.

The Court of Appeal ruling on the case in P & Q (2011) offered some welcome clarity on the matter, in particular that whether a person is happy, and whether restrictions are in a person's best interests, are irrelevant to the question of deprivation of liberty - see [24] and [27].  Their Lordships proposed instead that whether or not a person is 'objecting' to their placement, and whether or not it is a 'normal' setting or a 'a hospital designed for compulsory detentions like Bournewood' [28] were relevant to whether deprivation of liberty was occurring. However, it seems to me to be difficult to place the cases of Re C and Re P in this alternative schema from the superior court.  Neither C nor P are reported to be 'objecting' to their placements, and both services are fairly 'normal' settings for people with learning disabilities or autism to be cared for in the community.  In Re P, it was explicitly acknowledged that care was taken to give P as normal a life as is possible, and that the establishment was similar in many respects to those identified by Wilson LJ as being 'not designed for compulsory detention' [58].  Despite this, they were found to be deprived of their liberty.

My concern with the Court of Appeal ruling in P & Q was that people exactly like C and P would consequently fall outside the scope of the safeguards.  When I wrote that 'the assumption that “the absence of objections generates an absence of conflict and thus a peaceful life” is not, in my experience, necessarily correct', it was precisely these kinds of situations I had in mind.  As we have seen here, bringing these cases to the scrutiny of the courts has resulted in significantly improved care planning, and may have brought to light very serious human rights abuses.  This could have been done under the auspices of 'best interests', but that would fail to take on board that - at base - we are fundamentally concerned here with issues of liberty.  I am heartened to see that the court has not decided against extending the safeguards inherent in Article 5 to service users in these circumstances, but I do wonder what it means for the ongoing evolution of the meaning of deprivation of liberty.

The courts are quick to point out that 'All cases turn on their specific facts' (Re P, 57), but they seem to me to be in danger of becoming so 'fact sensitive' that it is difficult for outside observers to extract any clear principles that could help them determine whether a given situation amounts to a deprivation of liberty, unless it closely mirrors published cases.  Furthermore, I do notice that some judges - Baker J in particular - are extremely careful to take into account infringements upon privacy and autonomy (see also paragraph 78 in G v E), meanwhile other judges may not be so concerned with these issues.  Mostyn J and Parker J in particular seem to consider autonomy to be less relevant to the question of liberty where a person's mental capacity is impaired, rather regarding it as being depleted by internal - rather than extrinsic - factors (see Re RK, paragraph 36; MIG & MEG paragraph 233(c)).  Speaking personally I favour the approach taken by Baker J.  This is not so much because I subscribe to a particular metaphysical position on the relationship between mental capacity or personal autonomy and liberty.  Rather, it is because I think it is important for strategic reasons that we have adequate safeguards that require those who would infringe another's autonomy or privacy to justify it, and consider whether alternatives might be preferable.  Application of the legal label 'deprivation of liberty' brings those situations to the attention of best interests assessors, advocates, and ultimate the courts, and creates mechanisms for carers to challenge coercive practices.  In the absence of clear legal procedures and accessible safeguards for 'services under compulsion', such as those recently called for by Allan Norman, Article 5 and the MCA may be the best way we currently have of compelling services and commissioners to seek scrutiny of restrictive practices.

And finally, as a passing aside, the case of Re C raises - yet again - ongoing questions about the scope of the safeguards.  As I have previously written the deprivation of liberty safeguards are only applicable in care homes and hospitals.  This means that deprivation of liberty in other settings - like supported living, and in this case in a school - is less likely to be picked up upon.  In part this is because those services are  less alert to the requirements of Article 5 and Schedule A1, because they will not have been targeted during the role-out of the safeguards.  In part this is because even if they are aware of the possible need to seek authorisation for what may be a deprivation of liberty, the resources and costs involved in doing this directly from the Court of Protection may be prohibitive.  In Re C, the court considered it possible that authorisation for C's detention could have been obtained through use of a Community Treatment Order under the MHA, since there was prima facie evidence that he was eligible for them [67].  The question could be of critical importance, but the factual matrix was not developed before the court. The implication  of Ryder J's comments though, is that even outside of detaining hospitals, eligibility for the Mental Health Act community treatment provisions may mean they are to be preferred over the deprivation of liberty safeguards.  Best interests assessors may also have to consider eligibility for community treatment provisions under the MHA in their reports.

Further issues may arise as a result of this case for children placed in residential care under the Children Act 1989.  In the case Re RK it was acknowledged that if children placed in residential care  under the Children Act 1989 were found to be deprived of their liberty, 'the implications will be formidable as a large number of cases will require applications to the Court of Protection by local authorities and further regular consideration in time consuming reviews by both local authorities and the Court of Protection' [11].  In Re RK Mostyn J held that if children were placed in such services with their parents' consent, then  'as a matter of principle' they could not be deprived of their liberty as the subjective element was not met [31].   He held this to be the case even where parents wanted to bring their children home, but lacked the resources to do so safely. His ruling must have been a cause of some relief for local authorities, but the matter may be considered anew in a future hearing on Re C.  Although C was placed in the school with the consent of his parents [30], 'the court is well aware that the question [of whether C was deprived of his liberty] includes the circumstance before C was 16 and when he was subject to a CA 1989 regime'. Thus the question of whether parental consent obviates the need for authorisation is clearly not as cut and dried as Re RK suggests, and may yet need to be addressed by the courts, local authorities and perhaps - if Mostyn J's dire predictions are correct - by parliament itself.