There's no place like home - thoughts on Rose Villa

What does it mean to call a place a home? Homes, like people, come in all shapes and sizes, and the concept of ‘home’ is almost certainly what Wittgenstein called a ‘family resemblance’ term. That is, the many instantiations of ‘home’ share a collection of overlapping similarities (like families), but there is no common ‘essence’ to pick out and say “this is what we mean by home”. Home is a relational concept: for a space to be a home it must stand in some kind of relation to a person (or people). But a building is not a home merely by virtue of a person being in it; there are behaviours we associate with homes (although they might be done in other places). Evidently there is an important emotional and psychological content to whether we experience a space as a ‘home’, rather than a place to eat or rest. I propose that there are (at least) three legally salient characteristics of home: autonomy, privacy and permanence. Without expounding a detailed ‘philosophy of home’, I want to explore two issues that come up a great deal in care: whether institutional care settings can erode a sense of ‘home’ through erosion of autonomy and privacy, and the effects and significance of the enforced closure – or move from – an institutional care setting. Both these issues are well captured in the recent fate of Rose Villa[1], a care home run by Castlebeck and heavily criticised in a recent CQC report, and which - it was announced yesterday – will now be closed. 

More trouble with MEG (now ‘Q’)

In a previous post I wrote about this Court of Protection judgment, considering whether two young women, ‘MIG’ and ‘MEG’, were deprived of their liberty in a foster home and a care home.  Today the Court of Appeal issued its judgment on the case, and found that neither sister were deprived of their liberty.  In my view, the Court of Appeal judgment has the merits of being rather more clear, concise and consistent than the High Court judgment.  These benefits notwithstanding, however, I’m afraid I still found it rather a disappointing, and I shall try to spell out why below.  For those of you with little time to spare, here are the ‘headlines’ of what troubles me:

• The reliance on whether a person is ‘objecting’ to their placement is problematic because: a) it diverges from the central message of the Bournewood judgment; b) it fails to protect the Article 5 rights of people who lack the wherewithal to object and the Article 8 rights of their families
•  The different comments by different judges appear to conflict on whether previous or possible alternative care arrangements are relevant to whether ‘deprivation of liberty’ is occurring.
• ‘Loss of autonomy’ and the exercise of coercive control is yet further removed from considerations of whether a person is deprived of their liberty or not.
• I think the case introduces a distinction between the meaning of ‘deprivation of liberty’ in the context of psychiatric detention and social care settings; a distinction that is not supported by much research into this area or my own experiences of working in these sectors.

Rejecting Bournewood?

According to the judgment, the appeal against the original decision rested on whether this passage from HL v UK (‘Bournewood’) meant that MEG (Q) & MIG (P) were deprived of their liberty:

...the Court considers the key factor in the present case to be that the health care professionals treating and managing [Mr HL] exercised complete and effective control over his care and movements from 22 July 1997, when he presented acute behavioural problems, to 29 October 1997, when he was compulsorily detained. [91]

The Court of Appeal argued that being subject to ‘complete and effective control’ was only determinative ‘in the present case’ – in short, that whilst it might have meant that HL was deprived of his liberty, it did not follow that it meant other people in other circumstances would be.  The court based its judgment on two primary grounds: whether the relevant person ‘objects’ to their placement, and whether it constitutes ‘normality’.  I shall take these in turn.

“Objections”

Part of Parker J’s reasoning that neither MEG nor MIG were deprived of their liberty rested on them being happy in their placements [204]; this echoed earlier cases like that of TG v LLBC (2007, [105]) and Re MP (2009, [17]).  The Court of Appeal took a different view; a person’s happiness is only relevant to whether a deprivation of liberty is in someone’s best interests, not to the question of whether it is occurring [24].  However, they did hold that whether a person ‘objects to the confinement which is imposed on her’ is relevant [25].  The reasoning is important:

If a person objects to the confinement, the consequence will be conflict. At the very least there will be arguments and she will suffer the stress of having her objections overruled. More probably, as in the case of Miss Storck, there will be tussles and physical restraints and even perhaps her forcible return at the hands of the police. This level of conflict inherent in overruled objections seems to me to be highly relevant to the objective element. Equally, however, the absence of objections generates an absence of conflict and thus a peaceful life, which seems to me to be capable of substantial relevance in the opposite direction. [25]

My points of disagreement can be summarised thus: 1) there are people for whom it may be very difficult to infer whether or not they are ‘objecting to their confinement’ but for whom we want to retain the right to say they are deprived of their liberty (HL, I will argue, fell into this category); 2) It does not follow, in these cases, that ‘the absence of objections generates an absence of conflict and thus a peaceful life’.  The difficulty turns on how one interprets ‘challenging’ behaviours.

In care homes and supported living services, there are a significant number of people for whom it will be difficult, if not impossible, to make sense of whether their behaviours can be said to amount to an ‘objection to confinement’.  As a support worker in care homes and supported living, I sometimes worked alongside people who had profound communication difficulties; I do not mean merely that they could not speak, but in some cases any form of communicative exchange was problematic.  They displayed behaviours such as self-harm, violent aggression towards staff, destruction of property, which certainly could be taken as evidence that they were unhappy in their placements, but it’s difficult to say whether they were ‘objecting to their confinement’, because that requires a certain degree of reflective insight into their situation.  The danger is that for people like those I’m describing, no behaviour could ever be taken as a clear sign of objection because nobody would take them to ‘have the capacity to conceptualise any alternative unfamiliar environment’ (MEG& MIG, 225), or even conceptualise their own confinement.

Put another way, for managing authorities (or even supervisory bodies) seeking to avoid the application of the safeguards, every possible sign of objection could potentially be interpreted a different way.  How are you to distinguish whether a person attempted to break out through the kitchen window because they were ‘objecting to their placement’ or just to their dinner?  How are you to distinguish whether they escaped from the mini-bus on a trip out because they were  ‘objecting to their placement’ and not to the music on the stereo?  How are you to distinguish whether they are self-harming because they hate their placement, they hate the staff and everyone in it, or because of some other reason that they cannot express?  These are not mere philosophical trifles, interesting ‘problem of other minds’ examples.  Examining (or failing to examine) why ‘challenging behaviours’ occur is the bread and butter of care provision, but it is not always easy to arrive at a conclusive answer.

I think HL himself may have fallen within this category.  The original decision to admit him informally to Bournewood hospital was made in the context of his not objecting.  The court heard evidence that he was ‘not distressed’ by his admission, he was ‘fully compliant with treatment and never indicated that he wishes to leave the hospital’.  The Health Service Ombusdman report paints a very different picture.  On visiting him, his carers perceived him to be agitated and distressed.  Where a person lacks expressive language, who is to say whether they are objecting or not?  Even, whether they are distressed or not?  What for some is a clear symptom of distress, may be ignored by others as a mere 'symptom' of mental disorder.  The requirement that a person ‘objects to their confinement’ is likely to place people who lack expressive language at a significant disadvantage; in short, they are much less likely to be deemed eligible for the safeguards.

Futhermore, the assumption that ‘the absence of objections generates an absence of conflict and thus a peaceful life’ is not, in my experience, necessarily correct either. In the circumstances I have outlined above, where a person’s behaviour cannot be meaningfully said to be an ‘objection to confinement’ or their placement in general, they may still be subject to considerable interventions – sometimes physical – which can only be described as ‘conflict’.  In my view, the older emphasis on the ‘degree and intensity’ of restrictions (given in the code of practice and in European case law) is preferable; it brings the restrictive, sometimes combative, responses to these ‘ambiguous’ behaviours back within the analysis of whether deprivation of liberty is said to have occurred.  It places the emphasis back on the use of coercive power within care settings, and does not make a requirement that we only respond to coercion when a person is able to frame a recognisable objection to it.  And in many ways, people who are confined and subject to 'complete and effective control', who lack expressive language to describe what is happening to them, are the most at risk of abuse or excessive restrictions within their placement.

It should be recalled, furthermore, that a person may not ‘object’ to a situation despite its being harmful to them; this is clearly recognised in case law where adults are removed – objecting - from the care of their families because it is said to be harmful for them (e.g., PCT v P).  The requirement for objection means a person may be confined in a care setting, where they are subject to ‘complete and effective control’, where it is not in their best interests – yet by virtue of the fact they are unable or unwilling to express it, they are denied the powerful benefits of the safeguards.  We recognise in other areas of mental capacity law that a person’s apparent compliance or consent may be subject to coercion or even habit, yet not be in their best interests – it seems counterintuitive and contradictory to abandon this principle here.

“Normality”

The situation of MEG & MIG was distinguished from that of HL by reference to where they were confined.  There is said to be a spectrum of normality, whereby ‘the most normal life possible’ is in the family home, ‘not much less normal’ in an adult foster placement, and ‘even when the person lives in an institution rather than in a family home, there is a wide spectrum between the small children's home or nursing home, on the one hand, and a hospital designed for compulsory detentions like Bournewood’ [28].

I want to score a cheap point first.  I wonder how many adults today would regard it as ‘normal’ to continue living with their parents, or ‘not much less normal’ to be in an adult foster placement – or a care home, or nursing home?  It’s a cheap point, but it highlights a more important and complex issue.  ‘The most normal life possible’ is the operative phrase here, where ‘possible’ means ‘for that individual (with their disabilities), in our society today.’  By what criteria do we assess ‘normality’?  It cannot be familiarity to the confined person, otherwise lifers in prison could not be regarded as ‘detained’ after a certain number of years.  Does it mean ‘most common’?  The number of people cared for in a particular kind of service?  Or does it mean something closer to ‘acceptability’ within the bounds of what our society consider a ‘normal’ way to deliver care?  I suspect the latter, although it’s clearly impossible to ascertain what the intended meaning was.

I want to briefly consider another case, which I think might turn out to have a bearing on this and related cases.  The Grand Chamber of the European Court of Human Rights recently heard the case Stanev v Bulgaria (note: judgment still awaited in this case, but a webcast of the hearing is here).  In this case, it was argued that Mr Stanev was deprived of his liberty in Pastra care facility in Bulgaria.  Bulgaria responded that they weren’t ‘detaining’ him but providing him with a home (recalls paragraph 230 of MIG & MEG in the High Court).  Counsel for Stanev argued that Bulgaria had a positive obligation to provide him with support in the community, to avoid the need for detention.  Such an argument could easily have been made in the domestic case, Re RK.  Counsel for Stanev also point out that the living conditions in the Pastra care home had been described as constituting ‘inhumane and degrading treatment’ by the UN Committee for the Prevention of Torture.  Bulgaria responded that perceptions of treatment were ‘individual and subjective’ and ‘will depend on their mentality and social status.’

Almost certainly, the care received by MEG & MIG is of a higher quality than that endured by Mr Stanev.  But the point is this: in Bulgaria, Mr Stanev’s conditions may be as ‘normal’ for someone with his disabilities and in his social circumstances as MEG & MIG's are here.  If we want to retain the right to say he is deprived of his liberty in Pastra care home, we cannot do so by reference to their not being ‘normal’.  We can only do so by reference to the degree of coercion and confinement he experiences, but this is precisely the analysis that is denied to us by this judgment.  Yes, it could be distinguished by reference to dignity and 'living conditions', but where living conditions are characterised by coercive control, should they be ignored from the analysis?

Another way of looking at it is this: why is psychiatric detention regarded as more paradigmatic of ‘deprivation of liberty’ than care in the family home?  Because, I venture, it is assumed to be less restrictive.  I think this is a belief that underpins this aspect of the judgment.  It does not fit with the ‘aesthetic’ or dominant discourses surrounding social care to admit that they might, at times, be very restrictive and coercive environments.  My experience, and reports like this, this, this and this (I could go on - but I won't) testify that this assumption may be misinformed.  The most restrictive environment I ever worked in was a supported living service where residents all received one-to-one, sometimes two-to-one 'continuous supervision and control'.  Service users were frequently shut in their rooms for ‘time out’ (whether wanted it or not); some service users were daily placed on ‘reins’ for long periods of time.  All the service users were subject to frequent physical interventions and PRN medication to ‘calm them down'.  I challenge anyone to argue that this is ‘less restrictive’ or ‘more normal’ than psychiatric detention; yet the courts are coming dangerously close to taking at face value that ‘supported living’ services and care homes are just that.  This judgment does not allow us to say the residents I supported were deprived of their liberty; such care could easily be argued to be ‘the most normal life possible’ for people in their position (whether it is a ‘good life’ is another question).  To quote Keith Ewing, in this wonderful Article entitled ‘The Continuing Futility of the Human Rights Act’, ‘The answer lies only with the Lewis Carroll and George Orwell schools of treaty and statutory interpretation’.  That is to say, the courts are coming close to taking ‘deprivation of liberty’ to mean what it suits them to mean, reflecting what we want to believe about social care, and thus engaging in Orwellian Newspeak, à la 1984.

A note on families, conflict and ‘safeguarding’

One final passing comment on a possible issue for families and Article 8 rights.  There have been cases where a person has been removed from the family home for ‘safeguarding’ or other reasons, where the safeguards may no longer apply.  Sometimes, as in the case of MEG & MIG there are excellent reasons for not permitting a person to return to the care of their families.  But there are cases, like that of LLBC v TG and that of G v E, where the ‘safeguarding’ allegations were later held to be false, and where it was found to be in the ‘best interests’ of the relevant person to return to their family’s care.  In the first place, TG was not ‘objecting’; in the second case, it was not clear that E was either (although it is said he ‘showed signs’ of preferring to return to his foster carer). If such cases came up today, managing authorities could lawfully refuse to apply for authorisation for the placement on the grounds the relevant person was not objecting.  Supervisory bodies could refuse to authorise it, on the grounds they were not objecting.  This would leave the families without access to the deprivation of liberty safeguards, which they might well need to challenge the placement.  The safeguards provide families and ‘detainees’ with access to expert independent advocacy services, non-means tested legal aid, and the right to refer their case to the Court of Protection without fee or ‘permission’.

Yes, these cases could technically be challenged by way of judicial review; but there are drawbacks to this remedy.  In the first place, the Court of Protection is a specialised court for dealing with these cases – whereas the administrative courts are not.  In the second place, there is no guarantee that legal aid for judicial review would be granted, it being subject to both means and merits tests.  In the third place, a finding that the removed family member was ‘deprived of their liberty’ would bring the case into the realm of a ‘limited’ human rights, which might have rather more force before the court than 'qualified' Article 8 rights or the vagaries of community care law.  A court might hesitate to authorise a deprivation of liberty where a person is manifestly better of being supported to remain with their family; but if it can hold that they are not ‘deprived of their liberty’ because they are not objecting, it may find that the breach of the family’s Article 8 rights is justified in the face of other considerations (chiefly – the cost considerations of supporting them at home).

[Edit: This post was published in Local Government Lawyer here.]

More reading:

Alan Norman discusses the case here in Community Care; I'm particularly fond of this extract from his article:

It seems to me that the correct conclusion that the Court of Appeal arrives at should have been arrived at by far simpler means. Sometimes, my students infer that Article 2, the Right to Life, is about quality of life, and I have to say, no, it is literally about life itself. Similarly here, Article 5 is not about the quality of our liberty, but about liberty itself. Surely it should be possible to say that an individual interference with a person's free will may or not be right, may or may not be lawful, but is not itself a deprivation of liberty?

Folks at Browne Jacobson  have posted a commentary here; of particular interest they state that the case is going to the Supreme Court.  The express concerns too:

However, the idea that a care regime in the family home which allows ‘the most normal life possible’ will usually not be a deprivation of liberty, may yet prove to be just as problematic. We foresee an argument that a care regime in a care home or hospital which allows P ‘the most normal life possible’ should not, therefore, be deemed a deprivation. And what do we mean by ‘normal’ anyway?

The Department of Health has posted a case summary here; I have concerns that the summary may not be an entirely correct or clear exposition of the judgment.  It states:

An important distinction appears to be emerging in these judgments that people living in their own homes or tenancies, care homes or in “acute” hospitals will, whilst being restrained in their best interests, typically not be deprived of their liberty as those “normal” regimes will typically not achieve that threshold in delivering the treatment or care to which they are unable to consent. If however, their family or carers are indicating that they do not want the person to be there and more importantly, if the person himself is indicating that he doesn’t wish to be there, then the question of their confinement arises and the question of deprivation of liberty is now engaged. Other factors to consider are the use of medication, social contact, and whether the person goes out of the home regularly to college, day centre or place of occupation.

The DH interpretation that typically restrictions in a person's best interests will not amount to deprivation of liberty outside of a psychiatric setting seems to rather undermine the entire principle of the safeguards.  Deprivation of liberty can only be authorised when it is in a person's best interests; on this reading how could it ever be authorised in a care home?  The DH, of course, only says 'typically', but there is no other case law or criteria by which to judge what constitutes 'typical' in this sense.

The 39 Essex Street Court of Protection Newsletter for March also discusses the case.  It's not up on their website as of 05/04/201, but they comment:

It might be said that the safeguards put in place by Article 5 ought to apply not just to those who have the capacity and/or temperament to cause a fuss...

The Court of Appeal said expressly that the decision was not influenced by ‘floodgates’ arguments and the risk that the courts would be inundated with applications requiring declarations sanctioning deprivations of liberty and the subsequent reviews required by Article 5(4), but it is easy to imagine such considerations being in play. A concern expressed by the government in the seminal Bournewood case was that if HL was deprived of his liberty, then so were many thousands of people in care homes and hospitals up and down the country. The end result was the introduction of Schedule A1, and it may yet be that the Supreme Court adopts a position which requires similar legislation to be introduced in respect of supported living placements.

I await the outcome of the Supreme Court case with interest. 

The trouble with MEG

In so many ways, the case of MIG and MEG highlights problems with the Court of Protection and the deprivation of liberty safeguards.  In the first place, it’s a crucial case that significantly narrowed the parameters of what is considered to be a ‘deprivation of liberty’ in social care settings, and yet it’s not even been put on the Bailii website where lawyers find most judgments.  You can find it here, thanks to the excellent Mental Health Law Online website, but only because lawyers involved in the case have made efforts to get it there.  Given how much rests on these cases, given how practitioners in social care are crying out for more clarity about what a ‘deprivation of liberty’ is, why isn’t the Court of Protection routinely making these cases available?  I still speak to practitioners who haven’t heard of this case, but rest assured that care providers facing legal challenges are relying upon it to argue that the deprivation of liberty safeguards don’t apply to them.  Before I go on to discuss the ruling itself, I should say that the case was heard in the Court of Appeal in October 2010.  I know this, because it’s briefly mentioned in the excellent 39 Essex Street public law newsletter.  What we don’t know, even though the case is really important and it was heard three months ago, is the outcome.  In fairness to those involved, these cases can drag on if more evidence is needed, and it doesn’t help that the Court of Protection is woefully underfunded for the amount of cases it hears.  But we do know that a great deal hangs on the outcome; how the Court of Appeal rule in the case of MEG and MIG could significantly change the landscape of the deprivation of liberty safeguards.

The case of MEG and MIG concerned two sisters who both have moderate to severe learning disabilities, and who were removed from the care of their families due to ‘violence, sexual abuse of a sibling, neglect, chaos, and where her mother put her own needs and wants before her children.’ [208, 214].  MIG was 17, and lives with her foster carer, who she calls Mummy.  This is the kind of care arrangement HL in the Bournewood case enjoyed when he lived with Mr and Mrs E.  The legal and ethical issues may well be different in a foster placement, so I’m not going to talk about MIG in this post (although I will post on family and foster care another time).  MEG was 17, and lives in a care home.  It’s important to note that the deprivation of liberty safeguards could not apply to MEG, as she was not yet 18 and her care home was not ‘registered for the purposes of Schedule A1 of the Act’ [168].  This means that if she were found to be deprived of her liberty, the care provider (which is presumably a domiciliary care provider, or a children’s home, if it is not registered for the Act) would have to make a costly and lengthy application to the court for authorisation, and would have to seek periodic reviews.  Unsurprisingly, this is an eventuality that most care providers are keen to avoid if possible.  It’s one of the many inexplicable ‘holes in the DoLS’, that it doesn’t apply to many care settings where a person can be deprived of their liberty.  In the case Re RK the judge heard evidence that if children in care homes could be regarded as deprived of their liberty, the resource implications for local authorities – including compensation claims for unlawful detention – could be enormous [6-13].  Judges are usually careful to stress that concern for resources cannot influence their decision on whether someone is deprived of their liberty, but evidently local authority lawyers think it must have some sway or they wouldn’t bother to present this aspect of their cases.

So, the feature of the present case I am interested in is how the judge came to the conclusion that MEG was not deprived of her liberty.  MEG lives in a care home.  She has one-on-one, and sometimes two-to-one support [215].  For people who have not worked in care, it’s hard to convey how intense it can be working with someone one-to-one or two-to-one.  It means, in essence, that they are never left alone and are subject to ‘continuous supervision and control’.  Note the phrasing.  There are people with physical disabilities who require the constant presence of support workers to help them execute actions in their everyday lives – but they don’t require ‘continuous supervision’ exercised so as to ‘control’ them.  It seems as if the evidence heard by the court regarding physical restraint is unclear [217] – it is not referred to in the care plan, but it is mentioned in the context of controlling aggressive episodes.  Later on [233] the judge says that ‘Neither is restrained save for immediate purpose of ensuring safety, and, in the case of MEG, for her immediate protection and that of others when she has an outburst.’  This is a peculiar comment, since under s6 Mental Capacity Act restraint may only be used in these circumstances.  What the judge appears to be saying is that neither are restrained unlawfully; but surely, if restraint is relevant to whether a deprivation of liberty is occurring and needs authorisation, it must mean lawful restraint?

MEG is also prescribed Risperidone, a sedating antipsychotic.  Certainly in dementia care, Risperidone is widely regarded as a form of chemical restraint (see this report, for instance).  MEG is prescribed it to ‘help with anxiety’ [216].  ‘Anxiety’ can refer to a wide range of states.  In care homes I have worked in, people were given PRN sedatives for ‘anxiety’ when their behaviour became unmanageable.  It was never referred to as restraining them; the pathologisation of behaviours allows us to view what is in effect often an act of coercive control as ‘treatment’.  I’m not arguing that MEG shouldn’t be on Risperidone, but I think it is unfortunate that ‘No oral evidence was given about this medication and it uses at the hearing’ [216].  The judge finds the medication does not play a part in contributing to potential deprivation of liberty, because she ‘is not medicated to prevent her from leaving’ [217]. It would be highly unusual for medicine to be explicitly administered in order to prevent someone leaving a facility.  I don’t think many doctors would prescribe it for that purpose; but that could be its effect, all the same.  Even if it did not ‘prevent someone leaving’, it is a further manifestation of the 'complete and effective control' exercised over MEG’s body and mind by those who care for her.

The judge also considers whether MEG is ‘free to leave’.  She finds that if she ran away, she would be restrained and brought back [233], but elsewhere states:

Freedom to leave has to be assessed against the background that neither wants to leave their respective homes, there is no alternative home save that of their mother where neither wishes to live, and neither appears to have the capacity to conceptualise any alternative unfamiliar environment. [255]

This is a very interesting statement of a crucial issue regarding whether a person is deprived of their liberty or not.  In the view of Mrs Justice Parker, a person may not be considered to be deprived of their liberty if they have nowhere else to go, or show no desire to leave.  On the first point, whether there is an ‘alternative home’, it seems to me this cannot count against whether a deprivation of liberty is occurring.  The Convention permits, for instance for detention of vagrants (Article 5(1)(e)); they are vagrants precisely because they have nowhere else to go.  In fact, in one famous vagrancy case a lack of viable alternative residences was regarded to invalidate consent to detention, because consent could be regarded as ‘coerced’ by circumstances ("extralegal coercion").  It would also lead to the rather odd conclusion that had HL been informally detained at Bournewood, but for some reason his carers could not take him back, he would have been considered more ‘free’ than when they were fighting to get him home.

This leads me to the question of compliance.  The underlying message of the Bournewood judgment is that detention of adults who lack the mental capacity to consent to confinement is a deprivation of liberty even if they are compliant.  In a hospital setting, in fact, the 'rule' is that compliant but incapacitated patients who would be prevented from leaving if they attempted it have to be detained under the safeguards because they are ineligible for the Mental Health Act - just like HL.  It seems that in this judgment (and others) the relevance of compliance to whether a ‘deprivation of liberty’ has occurred in a care home is splintering away from the criteria applied in hospitals.  It is almost as if compliance is being treated as consent to detention, which would be illegitimate where people lack capacity.  There are arguments that noncompliance increases the intensity of the restrictions, and thus tips the balance into deprivation of liberty; but I’ve yet to see a published case in a care home where someone was compliant and content and was regarded as deprived of their liberty (suggestions in comments very welcome on this).  We are in danger of viewing compliance not as an intensity ‘factor’ but as determinative of the issue.

This case was discussed at a conference I attended recently, where the excellent Neil Allen argued the key reason why MEG was not considered to be deprived of her liberty was that the care home was her home.  This seems like an attempt to bring her situation in line with other cases where people subject to restrictive care, including ‘continuous supervision and control’, are not regarded as deprived of their liberty because it occurs in the family home. The family home issues aside, to my mind there are significant problems with arguing that the care home constitutes a ‘home’ for MEG.  Many of the features that we would naturally associate with home are simply not present in care homes.  For me, calling a place my ‘home’ is very closely bound up with my ability to exercise my autonomy and control my surroundings.  I choose where I live.  I choose who comes into my home, and retain the right to eject them from it if I desire to.  I choose who I live with.  I choose how to occupy myself within my home - there are no 'out of bounds' spaces, and I choose how to dispose of the resources within it.  A loss of control over one’s surroundings, over who one lives with, over one’s personal privacy, is in many ways what we dread about admission to a care facility.  It is true that MEG is likely to be subject to a similar level of control wherever she lives.  To my mind, this calls into question whether – unless the Reach Standards are carefully applied – any facility caring for people who are subject to this level of control can be regarded as a ‘home’.  Indeed, in the case G v E it was argued that because he did not have ‘exclusive occupation’ of the property, because care staff came and went on their choosing and not his, it was a ‘sham’ tenancy.  This issue was not pursued for other reasons, but it is likely to come up again in court.

One of the most highly criticised aspects of the judgment in this case, is that the judge held that the 'reasons for' the restrictions were relevant to whether they contributed to a deprivation of liberty.  The judge was heavily influenced by the ‘kettling’ case, Austin, where the House of Lords controversially held that protestors ‘kettled’ for hours by the police were not deprived of their liberty because the police did not intend to detain them.  The Austin case has been really heavily criticised for narrowing the scope of Article 5 of the European Convention on Human Rights; it is going to be taken to the European Court of Human Rights.  If the ruling is condemned, as many believe it will be, then cases like that of MEG may be unsound.  Barrister Paul Bowen and solicitor Ben Troke have both pointed out that this line of argument makes it very hard to see when the safeguards could, logically, ever be applied.  A key feature of the Mental Capacity Act is that restrictions on liberty must always be in someone's best interests, and a proportionate response to risks.  A key criterion of the deprivation of liberty safeguards is that deprivation of liberty may only be authorised when it is in a person’s best interests.  If parliament had felt that restrictions ‘in a person’s best interests’ didn’t count towards deprivation of liberty, it is hard to see why they would have drafted the legislation the way they did.  Lord Justice Munby put it well in the case JE v DE when he said:

The argument, if taken to its logical conclusion, 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.

The overall tenor of the judgment is that restrictions in the name of benevolent paternalism cannot amount to a deprivation of liberty.  To my mind that goes against the entire grain of the deprivation of liberty safeguards, and it goes against the grain of my instincts as well, having worked in plenty of places similar to where MEG is cared for.  Mrs Justice Parker enthusiastically cites Lord Hoffman’s dissenting judgment in a control order case, where he states:

Why is deprivation of liberty regarded as so quintessential a human right that it trumps even the interests of national security? In my opinion, because it amounts to a complete deprivation of human autonomy and dignity. The prisoner has no freedom of choice about anything. He cannot leave the place to which he has been assigned. He may eat only when and what his gaoler permits. The only human beings whom he may see or speak to are his gaolers and those whom they allow to visit. He is entirely subject to the will of others.

Aside from the legal quibble that it is rather bad form to rely upon a dissenting judgment that the majority of the house disagreed with (and not to even qualify it by acknowledging it was a dissenting judgment when citing it), the choice of quote seems to me rather peculiar.  The situation of MEG does share more than a passing resemblance to Lord Hoffman’s prisoner.  Do you think MEG chooses what and when and where she eats with the same autonomy as you?  Do you think she could decide to eat twelve mars bars at midnight on a picnic if she felt like it?  Could she even choose to eat a different meal to what’s ‘on the menu’ that night?  Or to eat later, or earlier, than staff decided?  And there are restrictions on who MEG can see; not only the restrictions imposed by any care home on ‘reasonable’ times for visits, but the court has previously placed restrictions on contact with her family – no doubt with good reason.  How many care homes would just let any person come in on MEG’s invitation, regardless of what they look like or whether they know them?  Because she is subject to ‘continuous supervision and control’, every decision that MEG makes is subject to potential overrule by those who care for her.  This is what is known in Republican philosophy as a ‘state of domination’; regardless of how often, in practice, one is interfered with, the ever-present possibility of interference is regarded as detrimental to liberty.

The point is, that for better or worse, MEG is ‘entirely subject to the will of others’.  This may be no bad thing if that will is exercised to protect her, and doubtless those caring for her strive to do so.  But the point about Article 5 is not that it outlaws deprivation of liberty in all circumstances, but that it recognises the inherent dangers within it and seeks to minimise them.  Dangers like being excessively vulnerable to the arbitrary, sometimes capricious, will of other persons.  The point of the safeguards is to impose external scrutiny, to ensure that coercion is kept to a minimum, that it never becomes abusive as it so easily could.  With dwindling visitation from CQC, with care staff under increasing pressure to deliver more with less, surely it seems appropriate that someone in MEG’s position – who is highly vulnerable – should have access to additional safeguards to ensure that her vulnerability is not taken advantage of?  And even if it never is, even if her care is executed to ‘least restrictive’ ‘best interests’ Mental Capacity Act perfection, it still seems uncomfortable to deny that she is not, in some way, less at liberty than you or I.  I have heard places like those that care for MEG referred to as ‘bittersweet prisons’ by those who have been confined in one.  This post by autistic blogger Amanda Baggs sets out eloquently what is wrong with the view that being subject to continuous control, even in one’s own best interests, is not experienced as a loss of liberty:

I have a recurring nightmare. I am in a beautiful building with a hushed, playful atmosphere. I have been there as long as I can remember. Everything I could possibly need is there. There are no locks on the doors. People follow me everywhere, but just out of sight, to give me the illusion of freedom. They want only the best for me. I can go outside and play in the woods, and I climb trees. And they treat me like a child. Everything is controlled perfectly. Nothing seems to be wrong, but nothing seems to be really right, either. Everyone is very sweet and very kind and very nice and very forgiving, but there is no freedom. Anywhere. This makes the apparent happiness of the place empty, shallow, and false. That, to me, is the essence of the intangible horrors I fear. Only when I wake up from this nightmare do I realize it’s a nightmare, and that in turn makes it all the more frightening.

It will be interesting to see what the Court of Appeal think.  The cynic in me wonders whether they won’t concur with this judgment.  The problem is, in many ways it suits a lot of people rather well.  No care provider wants to think of themselves as ‘depriving someone of their liberty’ (perhaps they should have stuck with 'Protective Care'?).  If she is found to be deprived of her liberty it will have major resource implications not only for care providers who have seek authorisation, but also for local authorities in similar cases who will have to apply the safeguards.  Potentially it will be a drain on the resources of the courts themselves, not to mention the Legal Services Commission.  Not only that, but apparently whether the safeguards are extended to include 'supported living' hinges on the outcome of this case.  It could be a very comfortable ruling for everyone; let’s hope it’s that comfortable for MEG and those others like her.

CQC functions to prevent torture and inhumane or degrading treatment under threat?

In a report published this month by the Ministry of Justice, that is probably likely to pass under the radar of most people concerned with issues of community care, a very ominous warning was sounded:

In an organisation of CQC’s size and broad scope, there will always be a tension between the different functions it performs. In 2010–11, an internal restructuring of CQC threatens some roles dedicated to the monitoring of the MHA. A review of visits to those detained under mental health law is also underway, although this is designed to enhance effectiveness. As CQC’s overall budget comes under pressure it will be a challenge to maintain its focus on its OPCAT-related work. (p33)

Anyone concerned with the rights of people who are deprived of their liberty in psychiatric hospitals, ordinary hospitals, care homes or any other sites of care should sit up and take notice of this.  In fact, you should take out your pens and start writing and asking the CQC exactly what this comment is all about.  Essentially, the author of this section of the Ministry of Justice report is suggesting that vital functions carried out by the CQC are under threat due to austerity cuts and restructuring.  What CQC function could possibly be more important than ensuring the most vulnerable people cared for in hospitals and social care are not subjected to torture, or inhumane or degrading treatment?

What is this report all about?

In 2002 a United Nations treaty came into force called the ‘Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment’, or OPCAT for short.  The United Kingdom ratified OPCAT in 2003.  The treaty requires all signatories to establish ‘National Preventive Mechanisms’ to carry out regular inspections of any places where people are deprived of their liberty to ensure they are not being abused.  Most public and academic discussions about OPCAT concern visits to prisons, police cells, immigration detention centres etc.  However, OPCAT also covers people who are deprived of their liberty as a result of illness or disability.  OPCAT reflects, at an international level, an understanding that people who are deprived of their liberty are extremely vulnerable, and are at excessive risk of ongoing and unnoticed abuse of their most basic human rights.  Think, for instance, of the torture and abuse of prisoners in Abu Ghraib prison in Iraq.  Think, more close to home, of the abuse suffered by adults with learning disabilities in supported living services in Cornwall, uncovered by the Commission for Social Care Inspection in 2005.  I am sure you can think of other cases in the news, or perhaps in your own experience, unprompted.

CQC inspections in hospitals and care homes

Each OPCAT signatory nation can choose how they establish their own preventive mechanism.  In the UK, there were already many systems in place for inspecting most sites of detention, from Her Majesty’s Prison Inspectorate to the Independent Custody Visiting Association.  In total, 18 organisations in the UK make up our National Preventive Mechanism to ensure detainees of all kinds are protected from torture and abuse (see list of them here).  One of these is the Care Quality Commission (CQC).

Before the CQC was formed in 2008, the Mental Health Act Commission (MHAC) was charged with making unannounced inspections of psychiatric hospitals to ensure the rights of patients detained under the Mental Health Act were upheld, and they were being well treated.  The MHAC was the last in a long line of commissions dating back to the Physician Commission, established under the Madhouses Act 1774 to visit madhouses and ensure patients were not being mistreated, and were not inappropriately detained.  This essential function of visitation to ensure detainees in sites of care were not being mistreated has been carried out by a range of commissions over the centuries and its functions are now absorbed by the CQC.

The Mental Health Act Commission was particularly noted for producing excellent biennial reports into the state of care in Britain’s psychiatric detention facilities.  You can still read some of them online here (2003), here (2005), here (2008).  The reports were extremely revealing about the darker side of psychiatric detention, and most likely made uncomfortable reading for many in Whitehall and government.  They have brought to light shocking standards of care.  The 2008 report, containing a list of disturbing incidents (p19), makes gruesome reading: patients who are secluded 90% of the time; patients in overcrowded wards sleeping on the floors of doctors offices; vulnerable women housed on wards where they are sexually abused; a dying man nursed in a dining room whilst other patients eat in there. 

As was increasingly recognised following the Bournewood judgment, people are not only deprived of their liberty in psychiatric hospitals.  The deprivation of liberty safeguards were established to protect the rights of people who are detained in hospitals and care facilities without the protections of the Mental Health Act.  Reading the Ministry of Justice report this month, it was clear that as far as monitoring and rights protection goes, the deprivation of liberty safeguards are very much the poor relation of the Mental Health Act.  The CQC merely noted that their use was ‘limited’; there was no detailed discussion of the living conditions and rights of those detained under the safeguards.  There seems to me no reason to believe that standards of care are higher in these detention sites; indeed, the steady trickle of reports of abuse in care homes and supported living in the media might lead us to believe they are worse.  As has been raised in the past many times by the MHAC themselves, people who are deprived of their liberty in any setting are vulnerable; where these people are disabled or suffer from mental illness, that vulnerability is exacerbated.  The MHAC in fact once cautioned against any sites that detain people with learning disabilities being relatively free of external visitation (here, 3.33).  Since then, levels of visitation in care homes have in fact dropped, and will drop further still (read this article for a discussion of this issue).  Except in exceptional circumstances, supported living services which fall under 'domiciliary care' provision are not subject to site visits at all.  The CQC is increasingly switching over to a ‘light touch’ regulation model which relies upon self-assessment – how many people could honestly believe that incidents like those listed above would be reported this way?

I think there is a very serious question, that has not as yet been publicly addressed by the CQC, as to whether the inspection regime regarding people who are deprived of their liberty under the Mental Capacity Act complies with OPCAT.  Put bluntly: there is a serious question whether the inspection regime for these detainees would be recognised as sufficient in international law as preventing inhumane or degrading treatment.  Any failure to comply with OPCAT would cast serious doubts over the CQC's, and indeed the UK as a whole, compliance with their positive obligations under Article 3 of the European Convention on Human Rights.

Over the years the Mental Health Act Commissioners have championed the rights of all detainees, and tried to draw attention to the particular issues faced by detained women, children, black and minority ethnic groups, as well as the dearth of protection of de facto detainees like HL in the Bournewood judgment.  When the Commission was wound down to become absorbed into the CQC they wrote that they were ‘reassured’ that their functions were not to be diluted, that their ‘warnings’ about the risks that would follow the loss of such functions were heeded (final report, 2009, p12).  The comments in the Ministry of Justice report this month suggest that they breathed a sigh of relief too soon.  Is the passage quoted above the last gasp of the Mental Health Act Commission?  A signal that we may be reaching the end of the road in a long history of visitation of sites of detention to protect the most basic rights of the most vulnerable members of our society?

I can find no coverage of this issue elsewhere.  I can see nothing on the CQC’s website that reflects a possible retraction of their visiting scheme.  But this report signals clear rumblings from within the CQC that some of its most vital functions may fall under the axe of austerity.  For anyone who sees value in preventing inhumane and degrading treatment of vulnerable people deprived of their liberty in our hospitals and care homes, I suggest you pick up your pens, and ask them what this is all about.