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Tuesday, 17 April 2012

Deprivation of liberty: The case for a statutory definition

During the consultations which preceded the deprivation of liberty safeguards (DoLS), many respondents stressed that clear guidance on the meaning of ‘deprivation of liberty’ would be essential for the DoLS to operate effectively, including: Bupa Care Homes, the Commission for Social Care Inspection, the Mental Health Lawyers Association and the Mental Capacity Lawyers Association, the British Association of Social Workers, the English Community Care Association, Age Concern, the Alzheimer’s Society, the Mental Health Act Commission, the Law Society and the British Medical Association. The government rejected a statutory definition on the grounds that the point of the DoLS was to protect people against unlawful deprivation of liberty, and the meaning of deprivation of liberty could only be given in case law. I very much doubt that any of those bodies would agree that we have yet achieved a clear consensus through case law. The 2010 report of the Mental Health Alliance and the Care Quality Commission’s (CQC) most recent report on the deprivation of liberty safeguards (DoLS) confirmed that there is considerable uncertainty over the meaning of ‘deprivation of liberty’, which is leading to significant difficulties in the operation of the DoLS. I want to suggest that there are a number of practical and policy reasons for thinking about decoupling the scope of the safeguards from the meaning of ‘deprivation of liberty’, and introducing a statutory definition which creates clear and consulted upon boundaries for their use. 

This would very likely mean that some people might gain the benefit of the safeguards whom the courts might not consider to be deprived of their liberty within the meaning of Article 5; it might also mean that some people who the courts do find to be deprived of their liberty could yet elude the definition. This is undeniably problematic, particularly the latter group. However, I would argue that in all likelihood this is already happening on the ground anyway as managing authorities, supervisory bodies and even the courts themselves are applying safeguards in such an arbitrary and inconsistent fashion. Furthermore, if it does transpire that some groups that fall within the meaning of Article 5 are not protected by the statutory definition, there is nothing to prevent the definition from being amended; this could be done particularly swiftly if it was given in regulations. It is also almost certainly true that the channels for disseminating a change to the regulations to the relevant parties in health and social care are much better oiled than the frankly quite haphazard methods of disseminating changes in the definition through case law. 

I want to start by describing problems with the present state of case law on ‘deprivation of liberty', then outlining some of the practical and policy reasons for considering shifting towards a statutory definition, before going on to consider the almost inevitable difficulties we will have in framing one.   Apologies, this is another long one...

Have we arrived at a clear definition of deprivation of liberty yet? 

I am deeply suspicious of anybody who claims that the meaning of deprivation of liberty in relation to adults who lack capacity is now clear. I can think of several uncertainties arising from the three major Court of Appeal judgments on this point. In P & Q (2010) we were told the key factors were ‘objections’ and how ‘institutional’ a setting was, yet it is unclear what either of those factors actually mean. If a person has communication difficulties, is timid and scared of upsetting authority, or expresses inconsistent views, what counts as an ‘objection’? In Re RK, we are told she cannot communicate, but that 'RK is very upset in her current placement and is not eating which among other reasons' [2], yet there is no consideration of this as a possible objection to her placement in the Court of Appeal's very short reasoning on why RK is not deprived of her liberty.  What must a person be objecting to – the particular placement, or particular restrictions within that placement?  The situation is further muddled by the Court of Appeal in P & Q (2010) saying that antipsychotic drugs and tranquilisers should be regarded as potentially masking objections, and then deciding the fact MEG (Q) was taking Risperidone was irrelevant because it wasn’t for the purpose of preventing her from escaping (how many doctors, I wonder, would explicitly prescribe such medication to prevent absconsion?!). The High Court ruling in C v Blackburn with Darwen (2012) seems to disregard the guidance in P & Q (2011) on objections altogether. 

And what is ‘institutional’? To me, MEG’s living situation sounded pretty institutional – I fear that, as the Official Solicitor is reported to have said, that the courts tend to regard anywhere with “roses around the front door” as not having sufficiently ‘institutional’ characteristics for deprivation of liberty to occur. Here is Erving Goffman’s description of life in a ‘total institution’: 
‘In civil society, by the time the individual is an adult he has incorporated socially acceptable standards for the performance of most of his activity, so that the issue of the correctness of his actions arises only at certain points... He need not constantly look over his shoulder to see if criticism of other sanctions are coming. In addition, many actions will be defined as matters of personal taste, with choice from a range of possibilities specifically allowed. For much activity the judgement and action of authority are held off and one is on one's own... In a total institution, however, minute segments of a person's line of activity may be subjected to regulations and judgements by staff; the inmates life is penetrated by constant sanctioning interaction from above... The autonomy of the act itself is violated.’ Asylums (1961), p43 
I can’t really see how a person who is subject to ‘continuous supervision and control’ is not subject to the totalising nature of an institution, as described here – whatever its size, and however ‘personalised’ it is. One can have a ‘personalised’ package of care and yet be subject to complete and effective control, only that complete and effective control itself will be ‘personalised’. 

I don't think the Court of Appeal’s ruling in Cheshire West and Chester Council v P (2011) offers much greater clarity.  We are told the correct approach is to identify the ‘relevant comparator’ and compare their situation. Identification of the ‘relevant comparator’ would be quite simple for a serviceman (another serviceman) or a child (another child of the same age), but who is the ‘relevant comparator’ when it comes to disability?  Unless we stick to a rigid medical model view that a person’s disability remains the same whatever context they are in, and there is some agreed upon way of caring for a person with that disability, then this is clearly rife for disputes. The court's reasoning in Re RK does not explicitly use a comparator, yet it does suggest that the level of restraints RK is subject to do not amount to deprivation of liberty because 'The restrictions were no more than what was reasonably required to protect RK from harming herself or others within her range' [27].  We seem to have come a long way since Munby J (as he then was) wrote that the argument that measures cannot amount to deprivation of liberty because they are justified:
'...would seem to lead to the absurd conclusion that a lunatic locked up indefinitely for his own good is not being deprived of his liberty. And if beneficent purpose cannot deprive what is manifestly a deprivation of liberty of its character as such, why should a beneficent purpose be of assistance in determining whether some more marginal state of affairs does or does not amount to a deprivation of liberty?' (JE v DE, 2006 [47])
‘Necessary restrictions’ vary enormously with context, with staffing, with support, with resources, with the culture, morals and training of those imposing them – which is precisely why they must be interrogated. The implication of this judgment is that restrictions on liberty are somehow a feature of the person themselves, rather than the activity of external agents responding to their impairment. But the impairment is separate from society's response to it.  This, indeed, is the insight at the very heart of the social model of disability, which in turn underpins the Convention on the Rights of Persons with Disabilities.   Without some kind of procedural safeguards which incur scrutiny, which the MCA itself does not supply, how are we to be assured that a particular set of restrictions are indeed 'necessary'?  The implication of this aspect of the ruling is that the more disabled a person is said to be, the harder it will be to incur scrutiny of any restrictions they are subject to.  And this definition of 'deprivation of liberty' seems to invalidate the DoLS as a whole - surely for detention to be lawful under s6 MCA, and the DoLS best interests requirement to be met, any restrictive measures amounting to detention must be necessary?

The only aspect of ‘deprivation of liberty’ which I think is reasonably clear, is whether or not there is a dispute over an alternative residence (Cheshire, [58]) – but even there, there are issues about how ‘real’ that residence must be.  In C v Blackburn with Darwen (2012), because the local authority would have to make available an alternative care plan, the alternatives were not considered 'real' enough to engage Article 5.  In Re RK, despite the fact the family were offering a home for RK to return to, the Court of Appeal did not even consider whether this element of the case meant she was deprived of her liberty.  We could infer that this was because the local authority had not offered the necessary package of care for RK to return to the care of her parents, hence it was not a'real' alternative, but if this is so it is not made explicit in the court's scant reasoning.  Should we be concerned, that if a local authority refuses to consider discharging its community care duties in a particular alternative setting, it seems to invalidate that setting as an alternative which could trigger the deprivation of liberty safeguards?  I also have concerns that in many cases by the time these disputes finally reach court a previously existing alternative residence may have evaporated – being sold to fund a care home placement, a lost tenancy, or skills lost to institutionalisation – making it unclear whether the safeguards should still apply. The horrible irony of this definition of ‘deprivation of liberty’ is that the fewer options one has available the more ‘free’ one is meant to be. 

Meanwhile, in Strasbourg, the definitions used in recent rulings Stanev v Bulgaria [2012] and DD v Lithuania [2012] suggest something of a return to ‘complete and effective control’ and ‘continuous supervision and control’ - criteria, which the domestic courts have increasingly disregarded (see the 39 Essex Street Court of Protection newsletters for February and April this year for excellent commentaries on issues raised by both rulings). And Stanev and DD certainly place considerable emphasis on a person's objections to a placement, which also certainly raises questions about the judgment in C v Blackburn with Darwen.  Yet Strasbourg's passing reference to Dodov v Bulgaria (2008) in Stanev suggests they might be prepared to countenance that restrictions which are ‘necessary’ for protection do not amount to deprivation of liberty – but there is very little to clarify their position on this extremely important point. Indeed this is the issue at the heart of Cheshire, and which the Supreme Court will be required to consider in its appeal.  Each successive definition of deprivation of liberty offered by the courts appears to be built upon sand, opening up new grey areas and issues to be contested, and quite possibly having unintended effects of depriving certain people of protection in ways which were unanticipated. And without any determinative guidance even from Strasbourg, the likelihood is that even definitions offered by the Supreme Court in the appeal on Cheshire may continue to be contested. 

The practical problems of uncertainty 

The operation of the DoLS rests upon the assumption that there is general agreement in what ‘deprivation of liberty’ looks like. It relies upon managing authorities identifying where they are depriving somebody of their liberty and applying to the supervisory body for authorisation, which in turn requires them to have a good understanding of a rapidly evolving area of case law which foxes even expert lawyers and judges. Where managing authorities are unsure of when to apply for authorisation, they may make obviously unnecessary applications which are a waste of time for all concerned, or – of greater concern – may fail to apply when they should do. During the consultation on the code of practice, the government expressed concern that unrecognised detention might create a ‘business risk’ of litigation for unlawful deprivation of liberty as a result of innocent and understandable misunderstandings. In reality, I have yet to hear of a single care provider themselves being directly litigated for unlawful detention, and suspect that the probability of that occurring is rather low. If a public authority has commissioned the care, they are likely to be the target of any litigation for unlawful detention; if no public authority has commissioned the care, the provider is unlikely to be considered to be a ‘public authority’ within the meaning of Human Rights Act 1998, and so cannot be litigated for unlawful deprivation of liberty in any case (discussed previously here). In short, the risks of uncertainty over the meaning of deprivation of liberty are more likely to affect detained residents who go without safeguards, than pose a risk to providers themselves. 

It may not only be through innocent misunderstandings that this uncertainty over the meaning of deprivation of liberty affects compliance; some cynical managing authorities or supervisory bodies may also exploit this uncertainty to avoid applying or authorising when they should do. My feeling is that one key source of pressure to comply with the duty to seek authorisation must come from regulatory inspections. CQC’s essential standards include requirements that the human rights of service users are protected (see in particular Outcomes 2, 4 and 7). One possibility might be for CQC to consider automatic penalties for care providers who fail to seek authorisation when they should. However, without greater certainty over the meaning of deprivation of liberty, it would be unfair of CQC to impose penalties on care providers. I have argued that definition that CQC are relying upon in regulation and monitoring the DoLS is increasingly disconnected from the evolving meaning of deprivation of liberty in case law. CQC too need greater certainty for their inspectors to enforce compliance with the safeguards with confidence. 

Another advantage of decoupling the safeguards from Article 5 might be a ‘rebranding’ exercise. Having several residents who are said to be deprived of their liberty is, as one DoLS manager put it to me, not exactly something a care provider wants to put in their brochure. However, having several ‘vulnerable’ residents who require extra safeguards or protective care, sounds rather more like they are a specialist institutions who can meet high levels of need, rather than a quasi-prison. Offensive though this rather paternalistic branding may be to disability rights groups, it may be a key factor in ensuring managing authorities, commissioning bodies and even families do not take umbrage at the suggestion that the care plan they favour is a form of detention. 

The meaning of ‘deprivation of liberty’ will also have an impact upon best interests assessment, first – and most obviously – over the issue of whether or not a person is a detained resident, and secondly over the question of whether or not it is in their best interests to be detained. To recap, the best interests assessor must state whether: 
  • it is in the best interests of the relevant person to be deprived of liberty 
  • it is necessary for them to be deprived of liberty in order to prevent harm to themselves, and 
  • whether deprivation of liberty is a proportionate response to the likelihood of the relevant person suffering harm and the seriousness of that harm. (see code of practice [4.58] and s16 Schedule A1 MCA
It seems to me that this requires the BIA to conduct some kind of a comparison between a situation where a person is deprived of their liberty, and some kind of alternative (perhaps hypothetical) care plan where they are not, and decide which is in their best interests. A balance sheet exercise like that conducted in Re A (Male Sterilisation) [2000] (H/T to Allan Norman for the link, and to Jonathan Wilson for getting hold of a shareable copy), listing the risks, advantages and disadvantages of each alternative might be appropriate. What alternative scenario is considered for this balancing exercise will, of course, depend upon how one defines ‘deprivation of liberty’. If one considers ‘deprivation of liberty’ to mean particular restrictions on liberty within a placement, then the alternative the BIA will consider will be life in that setting without those restrictions. This might be relevant to cases like A Local Authority v H [2012], where the ‘deprivation of liberty’ is linked to a person being prevented from having sex, rather than prevented from living in a particular place. But if detention is defined, as increasingly it is, by whether or not a person lives in a different setting, then it seems to me that the task of the BIA is to compare the two different settings. This point was fatally misunderstood by the BIA in Neary v Hillingdon [2011], who appeared to understand deprivation of liberty to mean only restrictions on movement within the care service, and limited access to the community; thus in her assessment she ignored ‘the elephant in the room... [of] whether Steven should be at the support unit at all’ [74]. I think that following Neary and Cheshire it must be obvious to all BIA’s that they must consider care plans in alternative living situations in their assessment. My concern is that now those individuals who wish to remain in the same setting but under fewer restrictions will have difficulty attracting scrutiny and contesting them as these are unlikely to amount to deprivation of liberty. Of course, once a deprivation of liberty has been found to be occurring, even restrictions within a setting will feed into the best interests comparison, and may be addressed by conditions, but this becomes a secondary aspect of the assessment, rather than its primary purpose. In short, the definition of ‘deprivation of liberty’ will affect what it means when we say it is in a person’s best interests to be a detained resident. 

And, of course, the courts themselves will also be affected by the uncertainty over the meaning of deprivation of liberty. There are no statistics, of course, on how many hours of court time, how much public and private resources, have been spent on litigation about the meaning of deprivation of liberty. My guess is that it is not insignificant, and philosophically fascinating though these issues are I suspect many judges would welcome greater legal clarity so they can focus on issues of capacity and best interests. We are never entirely going to get away from this issue. For as long as Strasbourg continues to issue inscrutable judgments on the meaning of deprivation of liberty, people will be able to bring claims about unlawful deprivation of liberty under the Human Rights Act 1998 to test whatever scenarios elude the definition adopted. But it certainly wouldn’t be something the Court of Protection would have to consider on a routine basis if the safeguards rested on a statutory definition. 

Policy reasons to adopt a statutory definition 

The practical reasons for a statutory definition are, then, that the application of the safeguards would be less arbitrary, could be more effectively enforced through sanctions, would offer greater clarity over what BIA’s are meant to be assessing, and less time would be spent by all – including the courts – fathoming whether a particular case is a ‘deprivation of liberty’ or not. However, increasingly I feel there are also some policy reasons for favouring a statutory definition over a case law approach to determining the scope of the DoLS.  

The problem is that every judgment the courts issue affects the application of the safeguards in the wider social field. The courts cannot claim to be exercising the will of parliament in these judgments, because parliament has no special claim on the interpretation of ‘deprivation of liberty’ and offered no interpretation at the time the DoLS were drafted. Neither can they be said to be applying clear rulings from Strasbourg or elsewhere on the meaning of ‘deprivation of liberty’, as the twisted tangle of case law shows we began – and remain – in the realms of ‘pure opinion’ on the boundaries of Article 5 (Guzzardi v Italy (1980), [93]). It strikes me that Strasbourg’s own jurisprudence on this matter fails to meet its own definition of lawfulness: 
‘...given the importance of personal liberty, the relevant national law must meet the standard of “lawfulness” set by the Convention which requires that all law be sufficiently precise to allow the citizen – if need be with appropriate advice – to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action might entail.’ HL v UK (2004) [114] 
There is no ‘true’ definition out there in the ether, which judges channel for us: the reality is that judges are making policy decisions about who will be safeguarded and who will not. I am reminded of a passage from Wittgenstein’s Blue and Brown Books about a man who defines ‘pain’ in a particular way: 
‘...what he rebels against is the use of this expression in connection with these criteria. That is, he objects to using this word in the particular way in which it is commonly used. On the other hand, he is not aware that he is objecting to a convention. He sees a way of dividing the country different from the one used on the ordinary map. He feels tempted, say, to use the name "Devonshire" not for the county with its conventional boundary, but for a region differently bounded. He could express this by saying: "Isn't it absurd to make this a county, to draw the boundaries here?" But what he says is: "The real Devonshire is this". We could answer: "What you want is only a new notation, and by a new notation no facts of geography are changed". It is true, however, that we may be irresistibly attracted or repelled by a notation. (We easily forget how much a notation, a form of expression, may mean to us, and that changing it isn't always as easy as it often is in mathematics or in the sciences. A change of clothes or of names may mean very little and it may mean a great deal.)" (p57) 
The difficult task the courts face is drawing a boundary around the concept without a sufficiently clear idea of where that concept is to be deployed; they are drawing a boundary on a map without an overview of the terrain, because they can only look to the particular case before them. I predict that disputed regions will continue to emerge; different groups will be strongly attracted or repelled by particular definitions, because so much hangs on them in terms of protection and resources, and there are few reliably recognisable landmarks to anchor current definitions. The Supreme Court must achieve the near impossible in Cheshire: delivering a judgment sufficiently clear that all parties (managing authorities, supervisory bodies, advocates, etc) enjoy certainty as to what is, and is not, deprivation of liberty – whilst creating a judgment proofed against the vagaries of Strasbourg’s own rather unpredictable Article 5 jurisprudence. This problem will remain so long as we conceive of the sole purpose of the DoLS as to insulate the UK against litigation in Strasbourg under Article 5; a habit which I suspect may be hard to shake. We must, I suggest, stop cowering behind what Strasbourg might decide Article 5 means in the future, and stake out our own clear terrain of who and what warrants safeguards, even if we subsequently have to amend it to take into account new expansions of the territory of Article 5. The safeguards must assume a moral and political purpose, not merely a legal one to close the Bournewood Gap. 

The claims of different interest groups on the scope of the safeguards should be considered collectively, and balanced against each other. This should occur through a proper public consultation, where reasoned arguments can be divorced from the particular case and considered in the wider context. Consultation should include: managing authorities, supervisory bodies, professional bodies, service users, disability rights groups, courts, lawyers, lay advocates, carers; people who collectively can provide a clearer view of the terrain in its entirety than can be gleaned through individual cases in a court. Different possible definitions must be consulted upon, and parliament or the relevant government department (most likely the Department of Health, with some input from the Ministry of Justice) can take into account any concerns or a lack of clarity regarding any particular definition. Furthermore the issues around resources, which are undoubtedly lurking in the background to these cases, can be properly considered out in the open because the consultation is on the scope of the safeguards, not the definition of Article 5. Full public consultation is something judges are simply not resourced or mandated to do. We need to be able to debate the issues in a space where we can openly acknowledge the true nature of this decision: political, and with significant resource implications for many, including the courts themselves. 

Past proposed definitions

If we go back to the period of drafting the DoLS, a few tentative definitions were proposed. The Alzheimer’s Society favoured a comprehensive approach: 
‘ will be impossible to come up with clear guidelines on assessing whether an individual is deprived of their liberty or has their liberty restricted and for these guidelines to be easily applied and understood by staff and carers. For this reason all those people who do not have capacity to consent to being in a care home or hospital should be given the protection of the safeguards. We believe that without a comprehensive approach the risk of excluding people who were deprived of their liberty is too great.’ 
The approach favoured by the Mental Health Lawyers Association is that anybody who should be prevented from leaving a facility should benefit from the safeguards: 
‘In our view the fact that a person is or would be prevented from leaving a facility is likely in many cases to be determinative because this must mean that the managing authority is exercising complete and effective control over the person. The guidance should recommend applying for an authorisation in all cases where a person is or would be prevented from leaving the facility...’ 
These definitions may have seemed excessively broad at the time, but if we look to developments in the Czech Republic and Russia the idea of imposing judicial safeguards on all involuntary institutional placements might seem less excessive. Personally, my concern would be that judicial authority for any institutional placement of a person who lacks capacity would run the risk of becoming a ‘rubber stamp’ given the volume of cases – but local level independent scrutiny of best interests decisions, with the court as a back up for intractable disputes, might be a good alternative. 

The Joint Committee on Human Rights (JCHR) proposed a definition of deprivation of liberty in their legislative scrutiny of the DoLS: 
‘We consider that if it is known that a person will be taken from their home to a place where they will be prevented from leaving, and complete and effective control will be exercised over their movements, that person is deprived of liberty from the point of removal from their home.’ [89] 
With the greatest of respect to the JCHR, I feel this proposal has a number of shortcomings, not least of which – what is a person’s ‘home’? - there is no legal definition.  Does a person have to have been living with family to enjoy the benefit of the safeguards, and does their family have to want them back? What if a person’s family want them back, but they don’t want to go back? Must they have a tenancy or own a property? What if a person is living in one care home, where they are happy and feel that it is their home, are moved to another against their wishes? What if they are moved from supported living rather than a care home – does it make a difference that they had a tenancy? How long must one be away from home for, for this to amount to detention (this will be particularly important for hospitals)? And how long does one have to be detained in a setting for, for it to become a person’s home, and hence for them no longer to be detained? Furthermore, is it reasonable to combine the ‘freedom to leave’ and the ‘complete and effective control’ criteria, to engage the safeguards? Mr DE, in JE v DE [2006], was not able to leave his care home, but not because he was subject to ‘complete and effective control’ over his movements, but because he was utterly reliant upon those caring from him to facilitate him leaving, and they had set their minds to ensure no such help was forthcoming (either from them, or from his wife). 

Some tentative suggestions

Since I am arguing for a statutory definition, I suppose it’s only fair I have a stab at proposing one... And here one starts to see quite a challenge this would be, although – I feel – not an insurmountable one. The first point I would make is that the scope of the definition should embrace all registered care services – from hospitals, residential care, supported living, extra care housing, etc – but should not include the family home. This is because the levers of the safeguards – from duties, to penalties for non-compliance, to dissemination of vital information – are inappropriate for domestic settings; if we want safeguards for people in the family home, they should take a different form. So what would a statutory definition for registered care providers look like? At a bare minimum, I think the following could be consulted upon, although each of these possibilities require a little more work (all of these apply to situations where ‘best interests’ decisions would be made): 
  • Where a decision has been taken to remove a person who lacks capacity from a domestic setting where they are living with long term carers, and where those carers wish them to remain living in that place, then they are eligible for the safeguards.
    • Issues: what if a person does not wish to remain living with their family, or has no expressed view on this?
  • Where a decision has been taken to remove a person who lacks capacity from a place where they have been living for a substantial period of time, and permanently move them to another placement, then they are eligible for the safeguards.
    • Issues: how long is a ‘substantial period of time’? What if they have expressed a desire to move? What if they cannot remain living in that placement because, e.g., their tenancy has expired or a carer has died? Additionally, it is not always known (or admitted) that a removal will be permanent; often what begins as ‘respite’ or a ‘holiday’ can turn into a permanent removal or long term limbo.
  • Where a person voices a recognisable objection to remaining in a particular setting, and they have been there for longer than X period of time, then they are eligible for the safeguards.
    • Issues: this is likely to be particularly relevant to hospitals and respite services. It is not uncommon for people who have been hospitalised for emergency treatment to ask to go home. How long should a person be in a place which they object to before the safeguards must be applied?
  • Where a person is subject to the ‘continuous supervision and control’ of those caring for them, then they are eligible for the safeguards.
    • Issues: This approach has increasingly been rejected by the courts as it would apply to a very large number of people; and yet, they are likely to be some of the most vulnerable people who could benefit from additional scrutiny of their care to ensure it is complaint with the MCA and the Human Rights Act. It would need greater clarity to determine what ‘continuous supervision and control’ means – is this 1:1 round the clock supervision? Does it include people who are only subject to 1:1 supervision when they are outside of a service, but who can be left unattended within a placement for periods of time?
  • When a person is subject to frequent physical interventions which have the effect of restraining them, or forms of mechanical restraint, then they are eligible for the safeguards.
    • Issues: Again, this would potentially affect a large number of people. There would be difficulties specifying the requisite frequency of restraint, and monitoring this. At present there are no requirements for recording and notifying anybody about the use of force in care settings, and yet recording and notification of the use of mechanical restraint has long been advocated by the Mental Health Act Commission. In schools, the use of force must now be recorded and parents notified. Is it so far from the realms of possibility that restraint in care should be required to be recorded on a person’s file, and CQC collect data which can feed into risk assessment? There would need to be clear guidance on the types of intervention which constitute restraint, and a clear threshold requirement for when safeguards should be applied.
  • When a person’s contact with specified individuals is limited by care staff, or those commissioning care, then they are eligible for the safeguards.
    • Issues: We’re clearly well out of Article 5 territory here and into Article 8, and yet this seems to me to be an issue which warrants procedural safeguards of a DoLS-like nature, including accessible routes to court, as it lies at the heart of many disputes in social care. It seems to me to be unacceptable that a care provider could prevent a close family member from visiting a resident, and the only way that relative could contest that decision would be through a costly and lengthy application to the Court of Protection.
None of those definitions are perfect, all will require clarification and also consideration of competing issues and interests. There are issues I haven’t considered here. But that’s really precisely my point: a single person, even a small group of individuals, cannot come up with robust, clear and uncontentious definitions from an armchair. This is precisely the kind of issue that public consultations are there for – to highlight muddled thinking and uncertainties, undesirable effects, and impacts on special interests. And this is precisely what the courts cannot do – we cannot come back to a judge and say ‘well, I didn’t really understand what you meant in paragraph 58, can you explain it?’, or ‘have you thought about the effect this will have on this particular issue?’ or 'this will bankrupt us'.  And a judge is constrained to show that they are channelling and applying the spirit of Article 5 and not swayed by resource or political considerations. With a statutory approach we can get away from those issues, and ironically Article 5 protection might be all the better for it.


  1. Could not agree more - I cannot see how the current state of the caselaw allows anyone to be confident about whether a given situation is, or is not, a deprivation of liberty. And thus, the only way to find out is to challenge a local authority, or conversely as a local authority do it and risk the challenge. That can't be what was intended when the MCA was introduced to fill the Bournewood gap. Would HL be deprived of liberty on these interpretations of the law?

  2. You make an excellent case and (I think) it would be more straightforward and clearer for decisions regarding deprivations to be made if there were statutory definition however the room for interpretation and reinterpretation would be very broad and it was clearly a conscious decision not to put one into the current Act.
    There would be issues around tighter definitions of periods of time - I think the impact of the effects of deprivations on different individuals can clearly be different too.
    I would love to see this out to consultation (bit of a cop out I know but I think I need more time to think on this!). Thanks for the fantastic post.

  3. Aw thanks, pleased anyone made it to the end! I'd love to see q proper inquiry into DoLS, perhaps by somebody like JCHR or EHRC. Here's hoping...

  4. Hi Lucy. What about not trying to define the Strasbourg concept of 'deprivation of liberty' at all, and having a system where any best interests decision made on behalf of an incapacitated person must involve a written capacity assessment (with forms that include all the stages that need to be gone through including first of all identifying the information relevant to the decision); the best interests decision must be set out in balance sheet form, with reminders to include emotional wellbeing as well as physical factors and a requirement to deal expressly with the s.4 MCA factors, and a mandatory requirement for a second opinion in any case where the decision-maker is also the person responsible for funding the relevant options. Isn't what we need a way to embed best interests decision-making properly into everyday life, not just a focus on deprivation of liberty which will always be hard to pin down and will never cover everyone who could benefit from the safeguards it brings?

    1. Hi TBC,

      I really agree with you that the focus on DoL has distracted from more widespread issues around best interests. I'm quite keen on pro-formas, particularly one which - as you suggest - requires people to explicitly set out what should be understood in order to attain capacity. Sometimes I think it's left somewhat 'vague' exactly what a person should have to understand...

      My growing feeeling is that the DoLS are being used to remedy a range of different MCA issues, for which there are currently few well established and well resourced procedures, with sufficient 'teeth' to sort out disputes. These were a few of the issue that came up when I asked DoLS teams what they were doing with DoLS:
      1) Adding independent scrutiny to best interests decisions about *where* a person lived, which a suggestion like yours could help to address. Another approach thst I've heard mention of is using BIA's as independent chairs of best interests meetings, who go through a pro-forma and could make recommendations for exploration of key issues or even direct the dispute to the CoP. Issues might arise for self-funded people placed by family though?
      2) DoLS were also being used as a way to scrutinise forms of restraint (including sedation); I think that's what Sue Neal was referring to in her point in the 39 Essex St newsletter in her response to Cheshire.
      3) DoLS were being used effectively as a way to improve a really crappy care plan, for example by making authorisation condition on community access. The BIA's were then visiting repeatedly to ensure improvements were actually happening.
      4) DoLS are occasionally being used to sort out contact issues with families.

      It seems to me that one element DOLS provide is independent scrutiny of best ineterests decisions, but they are also (on the ground) often being used to provide regular reviewing of concerning issues in care delivery. I wondered whether something like guardianship, with a regular welfare visiting requirement, and where 'guardians' can direct improvements in care plans, might be just as useful for people who are especially vulnerable or restricted?

      And then, of course, the DOLS are an accessible route to get issues into court... It does frustrate me to hear judges saying "well that's an Article 8, not Article 5, issue" - as if it's realistic to expect people to apply to the CoP with their disputes, without the legal aid and permission-free, supported route the DoLS offer. On the downside, the DoLS are a very pricey way to offer that route to justice.

  5. The question of capacity is also relevant, especially since someone who lacks capacity for some decisions may have capacity for others, and because there is sometimes a tendency to underestimate frail older and other disabled people's ability to make choices. For instance a person with dementia may, at least in more lucid moments, want bedrails used or other precautionary measures since she/he is as likely as anyone else who is frail to wish to avoid injury. Advocacy and careful listening can have an important part to play (and making sure a person's hearing aid is in and switched on if they are reliant on it to enable communication!)