Carl Gardner: Is it useful to hitch safeguards to human rights?

In response to my piece on why the Mental Capacity Act couldn't be 'policed' by a regulator  Carl Gardner from the Head of Legal blog offered some very insightful and interesting comments.  He's kindly allowed me to reproduce them here (and see also this post from his blog).  They've given me much food for thought and I've written a separate post raising questions generated by the comments of Carl and others: perhaps it's not useful for human rights safeguards to be linked a 'human rights' instrument at all.

Thanks for responding in such detail, Lucy. I think this is a really interesting discussion. I can't reply to everything you've said, but I do want to say what I think the difference between us is (I'm not sure we're disagreeing as much as it might appear on the surface) and why I worry about an instinctive reaction "against" the Cheshire judgment.



I'm not against safeguards for people whose liberty is restricted, or who are placed in settings like Z House. The more safeguards there can be, the better. Bring them on. I also want more training, much higher pay and a much higher social status for care workers of all kinds. I don't think that's "pie in the sky", either. I think it can happen if people actually want it, make a political choice that it must happen, and vote for it.

The problem we have, I think is that the deprivation of liberty safeguards (which I'm not an expert on, but am learning about with the help of this blog) were introduced as I understand it in the shape of s4A of the MCA and Schedule A1 in order to deal with a particular problem: the previous lack of procedural and other safeguards for people detained (in the article 5 ECHR sense) for care when unable to consent. That was the problem flagged up by HL v UK. So the DoLS provisions were designed to precisely fit that "gap" in protection (what I think practitioners called "the Bournewood gap"). They apply where there is an article 5 deprivation of liberty; but not otherwise.

That's understandable in policy terms for several reasons. First, the government obviously wanted to make the MCA human rights-compatible. You do that with precision and by definition if your legislation (section 4A and Schedule A1) hits the "legal target" of applying the DoLS wherever article 5 is engaged.

One advantage (from government's point of view) of going no further is that that minimises the burden of compliance on care providers and local authorities. No doubt that weighed heavily in ministers' minds when deciding when DoLS should apply. Generally, ministers dislike "gold-plating" any requirement seen as coming from Europe, and the surest way of avoiding gold plating is to implement it in this abstract, "exact copy" way.
The other advantage is, frankly, that it's much easier (you might say it's lazy) to trigger the DoLS by reference to some subsequent judgment (someone's decision about whether article 5 applies) than it is to do do the hard work of deciding precisely what care interventions (locking doors at night; constant monitoring; dressing a cared-for person in particular clothes; sticking fingers in mouth etc.) you think should trigger safeguards.

The trouble is that caselaw on article 5 means it's not easy to say where liberty a person is deprived of liberty rather than merely subject to restrictions. Perhaps we should be critical of Strasbourg for not making things simpler. But the way things are it seems clear you have to look at all the circumstances in detail and consider a whole range of factors. It's not obvious that everyone in placements like P's will be held to have been deprived of liberty. As long as DoLS is triggered by the abstract application of article 5, you're bound to have this problem of variable coverage.

I want to mention what I call the "ratcheting down" effect of human rights. When the HRA was about to come in, I was working on what became the Care Standards Act, and was intrigued by how quickly arguments about fairness turned into arguments about article 6 - and no more. It was as though the minimum guarantee had been accepted as a gold standard of fairness in all circumstances, so that no one could ask for anything more than an article 6-compliant process. In fact I think the focus on article 6 "ratcheted down" procedural fairness to some extent as people stopped arguing for fairness once the government's apparent "trump card" of compliance with article 6 was played.

I mention this because I think it's important for those who want more protection for people like P not to be fixated on article 5. Even if you won the argument, and P is held (say by the Supreme Court) to have been detained, all you achieve is that the detention has to be justified as proportionate. Oh, and the DoLS apply of course - if you've hitched the DoLS to article 5.

I think this is the prize you want. That sounds a good idea to me, too - or at least that some assessment, review, advocacy and authorisations short of the full DoLS should be required in a case like P's. These are the sort of thing I meant in my earlier comment by "management and regulatory" functions. I didn't mean all could be safely left to a distant regulator only doing occasional inspections - although I do think a powerful, well-funded regulator can play an important role.

So the question is, how to achieve it. One way is for judges to apply article 5 widely, which would (without legislative change) have the result of applying the full DoLS in more cases. Maybe you're right, and P should be seen as detained - I can see the argument, and maybe Munby LJ's "comparator" approach is wrong. But unless there's a simplifying revolution in ECtHR law, it's never going to be easy to know when a5 kicks in, and you're always going to have (aren't you?) uncertainty, from the care worker's point of view, about when DoLS apply. It's linked to a complex, context-dependent legal judgment.

And, of course, you'd potentially have widened article 5 in other circumstances. I think we have to be careful about giving article 5 such a wide application that it would catch P''s mother when she was looking after him, for example.

The alternative is to get away from the link to article 5, and do that hard work of identifying interventions, perhaps well short of a deprivation of liberty, which should trigger some sort of assessment - perhaps the full DoLS, perhaps less (again, something that it's hard work to decide), regardless of the human rights law position. This is what I mean when I say (as I didwhen I was lucky enough to be interviewed for Law in Action recently) that in many contexts real progress for human rights needs a focus on the boring detail of regulation, not the high-flown, apparently sexy approach (for lawyers, anyway) of saying human rights law should decide it all.

I suspect what may serve people like P better is legislative change specifically targeted at delivering more safeguards to everyone subjected to more clearly specified intrusive care interventions. That would be simpler to operate on the ground, and needn't wait for grand decisions about whether we need a new Bill of Rights or "human rights plus", or for Cheshire to be reversed or overruled.