Discuss about the Deprivation of Liberty Safeguards.
There are number of people who are deprived from their liberty because of the care or treatment they get or because of the level of restrictive practices that they are subject to. It must be noted that there consent was not present because of their lack of mental capacity. In number of cases it is necessary to give such care and treatment for their best interest which results in deprivation of liberty. In 2009 safeguards related to deprivation of liberty were introduced for the purpose of applying the check and balances by professionals at that time when they had to deprive people who are lacking capacity of their liberty. It is the obligation of state to ensure where deprivation of liberty is delivered by the social care or health care professionals, and they are known as state agents who have legal authority for deprivation.
In March 2014, Supreme Court stated the judgments in two cases that is P v Cheshire West and Chester Council and P & Q v Surrey County Council. In first case, judgment made by Court is commonly known as Cheshire West which results in increase in the numbers of people who deprived their liberty because of care and treatment in England and wales. In this case, Court stated that when there was lack of capacity in individual then such person must be kept under supervision or control, and such person were deprived of their liberty. Now it is commonly known as acid test.
In this paper, we analyze the statement made by Mr. Justice Mostyn that is ‘Ultimately I think that whether a factual situation does or does not satisfy the acid test is likely to be determined by the "I know it when I see it" legal technique’…The continuing legal controversy shows how difficult it is to pin down a definition of what is a deprivation of liberty…’. Lastly, this paper states the brief conclusion.
About Deprivation of Liberty:
Deprivation of liberty was introduced on April 2009 in England and Wales under amendments to the Mental Capacity Act 2005. This term was introduced in the year 2005 because one case was decided by European Court of Human Rights (ECHR) that legal system of England and Wales does not provide adequate protection to those people who are lacking of mental capacity for giving consent to care and treatment, and who need to restrict their liberty for keeping them safe from harm.
Mental Capacity Act 2005 does not state any specific definition of deprivation of liberty, but it is based on the principles of EHRC and also on its case decisions. Human Rights Act 1998 was introduced by European Convention on Human Rights (the convention), and article 5 of this convention provided the guarantee related to right to personal liberty and it also state that no one should be deprived from their liberty in an arbitrary manner. As per Article 5(1) (e), it permits the lawful detention of people of unsound mind as per the procedure stated by law. This article also stated the need of safeguards for those who were deprived of their liberty including the right to access judicial proceedings for the purpose of challenging the lawfulness of their detention.
Deprivation of liberty is that procedure which is stated by law, and as per ECHR it has three important elements which are stated below:
- An objective element in any restricted space for non-eligible period of time.
- An subjective element states that person must not be validly consented to that confinement.
- The detention being attributable to the state.
All these elements are described below in detail:
Objective element: for the purpose of stating whether individual has been deprived of their liberty or not, ECTHR defined that first stage is the concrete situation. Therefore, for this purpose range of criteria must considered for example type, duration, effects and manner of implementation of the restrictive measure which is in question. As per the article 5 of ECHR, it is clear from the case laws of ECTHR that individual can be restricted at specific place for the period of time which is non-eligible. However, this non-eligible period changes in every case law as per the circumstances of the case.
Subjective Element: it must be noted even though any person is confined on the basis of objective element but then also circumstances of that case does not fall under scope of Article 5 ECHR such as they validly consented to their confinement. This is because person can only give consent to deprivation of their liberty if such person has mental capacity to do so.
Some case laws are there which help in understanding this issue such as M v Ukraine, in this case ECTHR stated that Court can consider the view of the consent of the person for admitting to facility related to mental health for those patients who are getting in-patient treatment which can be recognized as valid under this convention only when sufficient and reliable evidences are present which suggests that mental ability of the person must be consented and comprehended to the consequences which means it has been established on objective basis in the course of procedure which fair and proper in nature, and all the important information related to the placement and treatment must be given to that person.
There is one more case law that is PCT v LDV & Ors, in this case Baker J stated that relevant question which must be asked is stated in the mental capacity requirement under 15th paragraph of Schedule A1 that is whether individual is accommodated in any hospital or care home which is relevant or not for giving relevant care or treatment. The information related to this question is relevant to that question which goes beyond the information related to placement for including information related to care and treatment, and also those restrictions which will be considered as objective deprivation of heir liberty.
Therefore, it is advisable that this broad approach must be applied in other settings also which means that material information must be included in the outlines even though such information is not minute detail about that situation which result in deprivation of liberty. Generally, information must states the situations in which person is kept under the supervision of continuous nature and not free to leave.
Imputable to the state: last and final element stated under Article 5 of ECHR is that deprivation of liberty must be imputable to the state, and ECTHR stated that this can be happen in three ways, and two ways among these three ways are relevant for the present purpose, and these two are stated below:
- There must be direct involvement of public authority in the detention of individual, and
- By violating the positive obligation of state under Article 5(1) for the purpose of protecting individual against deprivation of liberty must be carried out by private persons.
As stated above, in two important cases Supreme Court give its judgments that was P v Cheshire West and Chester Council and another and P and Q v Surrey County Council in March 2014. These cases provide the clear definition of Deprivation of liberty, and as per the Court in the following situations there is a deprivation of liberty under Article 5 of the convention and these situations are when person is kept under continuous supervision and control and is not free to leave and there is lack of mental capacity for the person to consent this deprivation.
In this case, Court also stated the three factors which are not relevant to the deprivation of liberty, and these factors are stated below:
- Whether person is agreed or not with his detention.
- Purpose of the detention.
- Whether it results in enabling the person to live relatively normal life.
In other words, it means that person should not be compared with any other person for the purpose of determining the deprivation of liberty.
As per the advice of law society there must be some limitation on the judgment of this case such as various hospitals and intensive care units where authorization time related to this does not serve any useful purpose and also cause unnecessary distress to those persons who are involved. It must be noted that this does not affect the general presumption which state that authorization application must be made in case any chance related to deprivation of liberty is there.
Recently, second call was made by judge of Court of protection to the Supreme Court for the purpose of reconsidering the landmark decision of Cheshire case for clearing the confusion related to deprivation of liberty in the law.
In the series of judgment, Mr. Justice Mostyn put question mark on the decision of Court in Cheshire west ruling and also the applicability of this ruling on those people who are receiving care in their own home.
This case also states the famous acid test which states the important elements of deprivation of liberty. These provisions applied on all those persons who were either in care home or hospital, and they are also eligible for getting the safeguards of deprivation of liberty. These provisions are applied on them also who are getting the care in their own home or under any community such as supported living.
Decision of this case was given by highest authority of UK, and everyone is bound by this decision. But Justice Mostyn criticizes this judgment in four different cases and the latest case law is Bournemouth BC v PS and DS. In this case he ruled the man named Ben who was suffering from autism and also associated with challenging behavior, and Ben was not deprived from his liberty in that bungalow in which he received the care on the basis of round-the-clock from staff.
In this case judge stated that there was no continuous supervision on Ben because his carers give him privacy which was appreciable and he was also free to leave, and in case he go anywhere his carers does not coerce him they just seek to persuade him. In case Ben refused then assessment under Mental Health Act was considered, and if it also becomes unsuccessful then help of the police was taken for exercising their power under section 136 of the Mental Health Act to remove him to a place of safety.
As per the judgment of Cheshire west, councils have been expected to make assessments related to placement of those people who are living in the community for the purpose of identifying whether they are deprived of their liberty, and if they are deprived then seek authorization from Court of protection, and case of Ben was brought by Bournemouth Council on this basis.
Implications related to staggering resources:
In his ruling, Mr. Mostyn stated that implication of local authority related to resources for the purpose of bringing these cases was staggering, rather than implication of procedure by the Court of protection as per the amendment to this rule for dealing with them. While concluding the case of Ben, he stated that in the light of the decision taken by Supreme Court, local authorities must err on the side of caution and taking every case before the court. If case they do not take it before, and it is found that case is related to deprivation of liberty then sometime heavy damages claim have to be paid. Therefore, it is necessary to reconsider this matter by the Supreme Court on the urgent basis.
In one previous case also he stated to the Supreme Court to reconsider this matter in his judgment Rochdale MBC v KW. In this case, he stated that 52 year old woman who was mentally incapacitated on sever basis and also physically disabled. She is living on rent and named as Katherine and was not deprived of her liberty. Justice stated that her freedom to leave her home was not constrained because she lacked that mental or physical ability to exercise that freedom because of her disabilities.
In this case, Mostyn stated that he was not agreeing with the judgment of Cheshire West, even though he was also bound to apply this decision. He further stated that in those cases in which person who is disabled mentally and physically receiving care at home and commissioned by authority at local level, then they must not be deprived of their liberty as per article 5. Therefore, he allowed the lawyer of Katherine to mount an appeal so that it would be heard by the Court of Appeal on quick basis, and after that referred to the Supreme Court for the purpose of reconsidering the Cheshire west ruling.
Court of Appeal upheld the appeal made by Katherine’s lawyer without conducting hearing, they made an order which stated that to the extent as per the plan related to her care and this was authorized for the period of 12 months till her plan related to care changed. In other words, case was not entertained by Supreme Court.
Decision of Court of appeal for allowing the appeal but without conducting the hearing was criticized by Mr. Justice Mostyn in the second judgment of Rochdale case. He also said that status of Katherine can be considered as in limbo because Court of Appeal does not state that Katherine was deprived of her liberty, and only that she were deprived of her liberty and then deprivation was now authorized.
This area is really sensitive because people receiving the care in their own home but at the expenses of state, and that is why law is now in a state of confusion. This point was raised I the judgment of Bournemouth. There is one more case law that is belong to the Court of protection and named as W City Council v Mrs L. In this case, a person was suffered from dementia who was living at his own home, and it has been found out that he had not been deprived from his own liberty, and as per the continuous legal controversy which shows how difficult it is to understand the meaning of deprivation of liberty which means detention by state, as opposed to restriction on movement or just humane and empathetic care.
Fourth case law is London Borough of Tower Hamlets v TB & Another; in this case Mostyn stated that one learning disabled woman was deprived from her liberty in her own flat, because all necessary provisions off acid test are fulfilled in this case.
There was no similarity like Katherine in Rochdale case because TB had the motor functions for leaving her flat, but if she does so then she will get back in the flat. In other words, she was not free to leave any where she wants. Mostyn also clarify in his ruling that in case of TB she was detained, and he further adds that on personal level he does not feel that her position can be considered as state detention n nay manner, other than by the reference of term of art stated by the majority in Supreme Court, and on loyalty basis Mostyn follow that decision of Supreme Court.
From the above discussion it is clear that decision of Cheshire West will stand till the time another case of deprivation of liberty is decided by Supreme Court, but still decision of Cheshire case cause disagreement within the judiciary related to the application of law and it also creates confusion among the practitioners. While commenting on the Mr. Justice Mostyn’s Tower Hamlets ruling, the Court of Protection team at leading chambers 39 Essex Street said that further comments of judge on the serious issue of deprivation of liberty which explain in more detail difficulty faced by number of people for the purpose of checking how the intensive support and care is needed by person for meeting the needs stated under article 5 of ECHR. With the end of Rochdale case, all these questions will remain unanswered by the high court at this point.
This paper states the meaning and other aspects of deprivation of liberty and also states the importance of deprivation of liberty with different case laws. Deprivation of liberty was stated in the case of Cheshire west which also states the acid test. The judgment of Cheshire case was criticized by Mr. Justice Mostyn in almost four cases, and in recent case he stated various comments on applicability of deprivation of liberty. He also makes second call to the Supreme Court for reconsidering its decision on deprivation of liberty and makes it clearer.
From the above discussion it is clear that decision of Cheshire West will stand till the time another case of deprivation of liberty is decided by Supreme Court, but still decision of Cheshire case cause disagreement within the judiciary related to the application of law and it also creates confusion among the practitioners. With the end of Rochdale case, all these questions will remain unanswered by the high court at this point.
Therefore, it is necessary that Supreme Court must consider the issue related to deprivation of liberty.
SCIE, ‘Deprivation of Liberty Safeguards (DoLS) at a glance’, (May 2018) https://www.scie.org.uk/publications/ataglance/ataglance43.asp, Accessed on 21st July 2017.
AgeUK,‘Deprivationof Liberty Safeguards’,(February2017),<https://www.ageuk.org.uk/Documents/EN-GB/Factsheets/FS62_Deprivation_of_Liberty_Safeguards_fcs.pdf?dtrk=true>, Accessed on 21st July 2017.
European Convention on Human Rights- Article 5.
M v Ukraine  ECHR 732.
PCT v LDV & Ors  EWHC 272 (Fam).
Storck v Germany (2006) 43 EHRR.
Cheshire West and Chester Council v P  UKSC 19,  MHLO 16.
P & Q v Surrey County Council  UKSC 19.
Alzheimer’s Society, ‘Deprivation of Liberty Safeguards (DoLS)’, < https://www.alzheimers.org.uk/download/downloads/id/2671/deprivation_of_liberty_safeguards_dols.pdf>, Accessed on 21st July 2017.
39Essex, ‘Court of Protection: Health, Welfare and Deprivation of Liberty’, < https://www.39essex.com/content/wp-content/uploads/2015/11/MC-Newsletter-November-2015-HWDOL.pdf>, Accessed on 21st July 2017.
Mithran Samuel, ‘Confusion for social workers as judge urges Supreme Court to reconsider deprivation of liberty stance’, (2014), < https://www.communitycare.co.uk/2014/11/18/confusion-social-workers-judge-urges-supreme-court-reconsider-deprivation-liberty-stance/>, Accessed on 21st July 2017.
Bournemouth BC v PS and DS  EWCOP 39.
Mental Health Act 1983- Section 136.
Court’s and Tribunal Judiciary, ‘Bournemouth Borough Council -v- PS and DS’, (2015), < https://www.judiciary.gov.uk/judgments/bournemouth-borough-council-v-ps-and-ds/>, Accessed on 21st July 2017.
W City Council v Mrs L  EWCOP 20.
London Borough of Tower Hamlets v TB & Another  EWCOP 53.