When I think about the chaos around the meaning of deprivation of liberty, it is these philosophers I think of. Judges do not channel meanings that are somehow 'out there' and pre-given, they do not 'discover' new meanings, they borrow, deploy and alter them. Of course, as Bakhtin and others noted, they do not have an entirely free reign in this - meanings are 'rented' from the community, and there are some meanings that are by now so well established that it would be extremely difficult to use them in any other way. The 'paradigm case of the prisoner' as being a form of deprivation of liberty being one such example. But at the fringes, in the 'borderline cases', the struggles can still be seen.
I've written a lot about the evolving meaning of DoLS in English and Welsh case law, and I don't intend to revisit it here. But I do want to talk about a wider struggle for the meaning of deprivation of liberty that seems to be taking place across the world, and Europe in particular, that the DoLS will inevitably be caught up in. And that is the use of 'deprivation of liberty' or 'detention' to describe placement of adults with mental disorders in social care institutions.
The UN Optional Protocol on the Convention Against Torture (OPCAT) is a treaty which requires states to establish National Preventive Mechanisms (NPM's) which monitor places of detention to prevent maltreatment of detainees. Implicit in the treaty is an association between deprivation of liberty and the risk of maltreatment. Interpretation of OPCAT has given rise to debates about whether detention can occur in care settings. A fascinating paper produced by the University of Bristol's Human Rights Implementation Centre (HUMAN RIGHTS IMPLEMENTATION CENTRE ‘Deprivation of liberty’ as per Article 4 of OPCAT: the scope (University of Bristol: Bristol: 2011)) discussed what was meant by a 'place of detention' under the treaty. Article 4(2) of OPCAT defines detention as:
For the purposes of the present Protocol, deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority.This would seem to be a much broader definition than is currently used in relation to DoLS - much closer to the original 'freedom to leave' approach advocated by many at the outset of DoLS but thought to 'cast the net too wide' by domestic judges. Under OPCAT the question isn't whether people want to leave and can't, the question is whether they could if they wanted to - close to the meaning used in HL v UK (2004). OPCAT is a treaty that recognises the risks associated with putting a person in a situation that they cannot leave if they wanted to, and these are risks which are clearly manifest in many social care institutions - worldwide, but also in the UK. But the HRIC paper reports that recognition of social care institutions has been problematic for OPCAT:
...for example, this has been a stumbling block in the Republic of Kazakhstan where a disagreement between ministries has arisen as to whether places such as care homes and children homes could fall under the umbrella of Article 4 of OPCAT, the argument being that in such places nobody is being held under armed guard.Apparently similar issues arose in many post-Soviet republics, unaided by a Russian language version of Article 4 which translated as 'holding someone under (armed) guard’. The HRIC paper argues that it was clear during the drafting of OPCAT that it was intended to cover a broad range of places, and the Subcommittee for the Prevention of Torture (SPT) - afilliated to the treaty - has visited social care institutions and care homes, schools for children with behavioural problems, and detoxification centres as well as prisons and places more readily recognised as detaining facilities. In the UK, our NPM is comprised of 18 different bodies, one of which is the CQC - who now recognise their role in detention monitoring as comprising those detained under the Mental Health Act and the DoLS. CQC are aware that they are not fulfilling that role in relation to people who are detained under the MCA in supported living settings, and hopefully are working towards a solution for that. Ofsted monitor children in prisons and secure accommodation, but ordinary care homes for children and residential schools do not seem to be recognised as possible sites of detention - although they are by the SPT, and have been so found in domestic case law. OPCATs definition of deprivation of liberty is not enforceable in our domestic courts, or in the European Court of Human Rights, but as a well respected UN treaty body it is influential, and increasingly it recognises detention in social care institutions where people are not free to leave.
In Russia and the Czech Republic, recent rulings have recognised detention in social care facilities where people are placed without consent. This year we have seen two landmark judgments from the European Court of Human Rights that found adults placed in social care institutions without their consent were deprived of their liberty, I think this is the first time this has been recognised by the ECtHR (?). In Stanev v Bulgaria Rusi Stanev's lawyers argued, successfully, that he was deprived of his liberty when he was placed in the Pastra care facility. In the Webcast of the hearing before the Grand Chamber the Bulgarian Government argued:
"The government considers that placement within a social institution is a service and should not be considered within Article 5 of the Convention."The emphasis upon 'service' connects with wider discourses around charity and dependency, concepts we do not typically connect with 'deprivation of liberty'. In DD v Lithuania the government argued that 'the Kėdainiai Home was an institution for providing social services and not forced treatment under a regime corresponding to that of a psychiatric institution', again associating detention with 'other' kinds of facilities, not those providing services. This ties in with a theme in DoLS case law and implementation - "how can we be detaining somebody if we are serving their best interests?" Importantly, though, the ECtHR did not see it that way, and it is now clear that the nature of the service or the intention behind providing it does not prevent it being a form of detention in their eyes.
In response to the claim that social care institutions cannot be a form of detention, campaigners and lawyers point to details of the regimes that people may be subject to within them, associating detention with a core concept of restrictions of liberty. The difficulty here, as Munby LJ made clear in his judgment in Cheshire, is that restrictions on liberty are not unique to institutions - children, in particular, are subject to high levels of restrictions. Munby LJ argued from this that the essence of deprivation of liberty couldn't be restrictions on liberty because otherwise every child in a playpen would be detained. But perhaps trying to pin down an essential core of what 'deprivation of liberty' is is where we're going wrong in our thinking. We should learn from the writings of Wittgenstein and others that there is no essential meaning out there, and we should learn from Bakhtin that when we try to co-opt meanings rented from the community for a particular use, they bring all their baggage with them. When we argue for restrictions on liberty being the essential core of the meaning of deprivation of liberty, we bring the 'baggage' of restrictions we may not want to consider as forms of detention.
A better approach, in my view, is to ask the question "what do we want to use this meaning for, and why?" Why are people, like myself, so keen to claim that certain care settings are detaining people rather than, for example, merely interfering with their Article 8 rights? I think we have to be clear here and say that it's because Article 5 - unlike Article 8 - offers much more useful safeguards for a whole range of different causes for concern in social care. It's all well and good to say that Article 8 is protected by the Convention, the Human Rights Act, but it's quite frankly pretty impotent if one contrasts the wide scale of violations of Article 8 going on in social care every day with the sparse sprinkling of cases that get to court. Article 8 doesn't bring with it legal requirements for independent scrutiny of care plans and mental capacity assessments, rights to independent advocacy and relatively accessible mechanisms to bring your predicament to the attention of the court. Simply put, Article 5 is geared towards the protection of people with limited liberty and autonomy by its very nature, and this is especially useful for people whose liberty and autonomy are limited because of their disabilities and the environment they find themselves in.
What kinds of things would we want these tools for, in social care? I'm not sure we are asking this question enough. Those from a legal background will be schooled in a way of thinking that you can't argue for the scope of Article 5 for policy reasons, so you must argue from the perspective of what it really means - no matter how illegitimate the philosophers have shown that approach to be. This frames the debate as if it were about lexicography. It's not. It's about who gets additional protections and who doesn't. Here are some suggestions for the kinds of things DoLS can be used for:
Challenging decisions to remove people from their homes (sadly, often irreversible decisions as by the time a case gets to appeal a person can be so institutionalised and demoralised their health has declined too far);
Challenging decisions to remove people from their families;
Challenging restrictions on contact with families, or failing to enable that contact;
Challenging excessively restrictive care plans;
Ensuring care really is good enough quality to approximate a person's 'best interests';
Detecting signs of abuse, which are unlikely to come to light in any other way if a person is unable to leave or freely communicate with those outside the service.
I could go on, but my point is merely this. We are not fighting for certain restrictive practices in care to be identified as detention because of pedantry about what deprivation of liberty really means. As if we woke up one morning and spotted that a species we thought we'd known all about actually belonged to a different genus. What happened was we woke up one morning and thought 'procedural safeguards like these could be really handy for an array of problems we see in social care'. But the safeguards come with a hefty price tag - it's especially hefty because DoLS are poorly drafted and implemented, but even the most efficient system would come with a cost. This is a cost which we must expect to be resisted by many, including - but not limited to - those charged with seeking authorisation, those charged with administering the DoLS, the justice system who must hear the appeals, the government - who must bear the cost, and implement the reforms that are so sorely needed. Furthermore, because 'detention' carries unattractive connotations of risk of harm and abuse, as embodied in OPCAT, those who operate within the social care system, and those who place family members in care homes against their will, may well resist this association. And so, we engage in struggle.