Guest post by Sam Smith: Imprisonment is the new liberty

I've not been able to give as much time to commenting on the recent ruling in C v Blackburn and Darwen Borough Council as I would have liked.  The judgment is quite short, and for those with an interest in the evolving meaning of 'deprivation of liberty' it's a must read, as the meaning seems to be even further narrowed than Cheshire, P&Q and others would have suggested.  Fortunately, Sam Smith has stepped into the breach and written a guest post on the ruling for you to read.  Guest posts from a range of perspectives are very welcome here, if anyone would like to respond or offer other thoughts.

If a person is locked in a care home and supervised all day, and only allowed out under supervision - if they cry and beg and shout and kick the door down (literally) in order to be let out - if they tell a judge they hate it there, they want to leave and they are 'stressed', are they deprived of their liberty?

'No' says Jackson J in a recent Court of Protection public judgement C v Blackburn with Darwen Borough Council [2011] EWHC 3321 (COP), which is one of the first cases to rely on the Court of Appeal's widely excoriated Cheshire judgement.

The unfortunate C in this case is a 45 year-old man who was living in the community with his family. He suffered an injury in childhood that may have caused brain damage, but lived with his family and worked in his father's business.  In 2000 C suffered another brain injury after falling off a roof. Thereafter he lived in warden controlled accommodation for 8 years.

In 2008 C was moved to a rehabilitation unit - where things appear to have gone wrong. He made several attempts to kill himself and after various unpleasantness ended up subject to the rarely used guardianship provisions of the Mental Health Act. These were used in conjunction with the Deprivation of Liberty Safeguards to keep him in a care home until his appeal went before a court.

In proceedings in the Court of Protection, Jackson J (the same judge as in Neary) found that C was not deprived of his liberty. Both the experts think that C is in need of care - no one (not even his family) dispute this. C has  supportive family who see him regularly.

Put simply - no one in this case has a problem with the current care plan except C. If all the Court had done was uphold the Standard Authorisation this case would be of little note except some comment on the overlap between the MHA and MCA of technical interest only to people like me.

The problem here is the pernicious redefinition of 'Liberty' and the deprivation of same. The Judge in C's case is applying a recent Court of Appeal judgement Cheshire West and Chester Council v P [2011] EWHC 1330 (COP) . In that case a severely disabled man was found not to be 'Deprived of His Liberty' because his disabilities were such that all of the restraints and so forth would have been necessary in any conceivable setting. It was not society, but his own limitations, life that had deprived P of his liberty. In legal terms therefore P is merely 'restricted' of his liberty. Therefore P in effect could be restrained in a care home without any process of law like sectioning or the DoLS.

In P's case this view may be reasonable. It may be in his interests. I am less clear on how C's placement is inevitable given that he lived in the community (albeit in warden controlled accommodation) for eight years before it was necessary to detain him, and given that the independent expert social worker recommended rehabilitation.

The difficulty with these judgements though is not the instant cases. It is their consequences. I have already commented recently on Anna Raccoon's excellent site about the problem with the judgement in Cheshire. It can be succinctly stated as this -

If P is not deprived of his liberty then he gets no Mental Health Act or Mental Capacity Act Safeguards. No legal process is used and there is no appeal or review process.

So in practice the determination that P is 'too disabled' to be deprived of his liberty will be made on the basis of an unchallenged assertion by, um... council workers. That is it. A Social Worker says Bob or Betty is so disabled that there is no alternative but to lock them up and that is pretty much it. Off they go and "No Bob you can't appeal".

Unless it is qualified, the consequence of these judgements is that, as this interpretation is taken up councils will start to use this reasoning. People will be locked up who could live independently. People with nothing wrong at all will be detained. It will be a temptation for the dishonest, or for the cash-strapped and a pitfall for even the kindest and most honest. Elderly Milly, 75, complaining about the council? - 'clearly' has dementia so off to the care home with Milly! Sid has schizophrenia - arguing with his carer again? - off to the hospital and none of that nasty messing about with sectioning, tribunals and second opinions.

As an occasional McKenzie Friend I have to say that nearly every single dispute about a deprivation or restriction of liberty I have ever heard of turns on a dispute about the degree of disability or appropriate care. In every case where P or his family challenges a 'Deprivation of Liberty' they argue that P has no disability, that P's disability is of lesser degree than the authorities allege or that P's care is too restrictive and not made necessary by P's disability.

The Cheshire West Judgement short-circuits the purpose of the DoLS. The DoLS are a process for documenting that a person to be detained has a disability, of a degree that renders them incapable of making decisions about residence and care, and it is necessary for them to be detained. According to Cheshire West if these criteria are met then the DoLS do not need to be used. Under this reasoning when is anyone deprived of their liberty.

The reason for the extraordinary sophistry of the judgements I refer to is of course resources. There are around a million people in this country said to lack Mental Capacity to a greater or lesser degree and a fraction of them (still tens of thousands) require detention. The Deprivation of Liberty Safeguards should have been simple, quick procedures for authorising such detentions and allowing appeals. Instead they were written by the members of this country's worst government in living memory - the New Labour Government under Tony Blair.

The Deprivation of Liberty Safeguards were not a policy of the UK government - instead they were imposed by the European Court which quite reasonably thought that the previous position (where people could be locked up without due process) was wrong. Rather than embrace this position and try to create procedures that real people could use, NewLab advisors and civil servants instead create a process that even judges are unsure of. Even in the case of C, Jackon J hedges his bets and caters for the possibility he is wrong about the question of Deprivation.

The Safeguards are roundly regarded as impenetrable, unfair and fabulously expensive to operate. They are unfair even on those conscientious Social Workers and Doctors who try to support their clients' rights. Mental Capacity practice is like juggling with knives - and the stakes can be a professional's career or a client's freedom.

Jackson J goes to great lengths about how much better the Mental Health Act is for its clients than the Mental Capacity Act. It is cheap, fair and accessible. He is right - Margaret Thatcher's 1983 legislation is still going strong whilst Blair's 2005 legislation is limping out of the door.

I have pointed out before that these procedures could be made much cheaper. Firstly, assuming (as does 39 Essex Street Chambers in their recent newsletter) that Jackson J and the Court of Appeal are wrong and that these vulnerable people are in fact being deprived of their liberty there are several filters that could be put in place to make the system simpler.

The European Convention on Human Rights requires that all deprivations of liberty must follow a process prescribed by law and also that there be a 'speedy' right of appeal to a Court. These two requirements can be separated. Firstly the 'process' used in the DoLS or in detention under the Mental Health Act simply means that qualified professionals must fill in some forms.

The second, separate right is a right of appeal. Simply put this right should really only be engaged if someone objects. It is madness for expensive and sometimes avaricious lawyers and experts to be instructed to argue about the care of someone when neither the family or the person themselves is.

The whole procedure is a problem for Parliament not the Courts. The DoLS need to be junked. Cheshire West needs to be junked. We need a clear, reasonable and working statutory definition of who is to be safeguarded with an absolute minimum of ambiguity. The principles of the Mental Capacity Act 2005 are fine but the whole enforcement and review apparatus is a bureaucratic nightmare. The Court of Protection frankly would be better replaced with an expanded Mental Health Review Tribunal.

Where the Courts have erred is to let Parliament off the hook by trying to ease the pressure on the system through progressively narrowing the scope of persons entitled to the Safeguards. Instead they should have stood up for people's rights and followed the letter of the law. This would have allowed the creaking of the system as it ground to a halt force the Government's hand.

Redefining Imprisonment as Liberty in the style of George Orwell's '1984' is not a solution and it ill becomes our Courts.

About the Author - Sam Smith is a former Labour Councillor and Spin-Doctor who subsequently defected to the Conservative Party in disgust at New Labour's illiberal laws. He sometimes assists litigants in person as a McKenzie Friend, charitable, for example in the recent DJ v TCBC case.