For those who missed our Court of Protection conference in London on 3 July, John O’Donnell has responded to requests for the text of his talk on liberty by preparing a paper in five parts, available here.
2. Who Needs Democracy?
3. Cheshire West – Problem Solved?
4. Philosophical Approach
5. A Lost Cause?
It is a fundamental right enshrined in Art 5 of the European Convention on Human Rights, incorporated into domestic law via the Human Rights Act 1998, that no one is to be deprived of their liberty without lawful justification. The Supreme Court decided, in Cheshire West, that a person is deprived of their liberty if they are not free to leave and are under constant supervision and control. This definition of DoL has had enormous consequences for the legal and care system. Lawyers have had an unexpected bonus, the Court of Protection has been overwhelmed by a ten-fold increase in DoLs applications and social services departments driven to despair at a time of financial austerity.
My interest in the concept of liberty was aroused by a troubling case which eventually reached the Court of Appeal; SS Justice v RB (2011) EWCA Civ 1608. I first met RB when he was referred for a MHT after not having had a review for three years. Indeed, he had not requested a MHT for many years before that and at successive referrals had declined to engage. He had a psychotic delusion about young boys which led him to act, in the euphemistic description in these matters, ‘inappropriately’, resulting in detention in medium secure conditions under s37 / 41 MHA. He was intelligent, highly educated and culturally sophisticated. He became an Anglican monk after his divorce and taught for a time. He was particularly drawn to a quiet, contemplative life of reading and study but nothing gave him greater pleasure than a walk. He acknowledged that his beliefs about young boys attracted condemnation from society and that he must obey the law by not acting on his beliefs. He walked whenever he could. A stroll round a garden or a brisk walk were a delight above all things to him so when I found accommodation in a large Edwardian building on a quiet leafy road, run by a charity with a Christian ethos employing highly motivated staff qualified to deal with ex- prisoners convicted of crimes of the utmost seriousness, it seemed ideal. He went to visit. He loved the atmosphere and the large garden. They were happy with him.
But the Secretary of State was not happy and did not want him to leave hospital. Their focus is on their perception of risk. The RC proposed that he be escorted at all times outside the accommodation to satisfy their concerns about the possibility of unsupervised contact with children. RB was more than happy as, at 71 yrs of age he rather appreciated the company and was well aware of his options.
The problem lay in precedent which established a distinction between an escort required for the safety of the public which, being imposed by the state, was a deprivation of liberty and an escort required to assist the individual who might be at personal risk to themselves due to a difficulty such as crossing the road or getting lost, which was not. The SoS argued that, as the escort condition amounted to a deprivation of liberty, he would not, in law, be discharged. As the sole power of the tribunal was whether or not to discharge, the tribunal would act unlawfully by granting a conditional ‘discharge’ as he would, in law, continue to be detained.
The Mental Health Tribunal relied on Stork v Germany in which it was held that there would be no deprivation of liberty if there was consent. As he consented to the arrangements and he had the mental capacity to do so, they discharged him on condition that he be escorted at all times outside the accommodation. The MoJ appealed unsuccessfully to the UT but won in the Court of Appeal. What is interesting is how the issue of consent was dealt with. RB would not be permitted to consent. It was not a valid consent as the judges decided he had no real choice. He would remain in hospital.
In Cheshire West, Lady Hale pointed out that a gilded cage is still a cage, but what if the bird does not wish to leave or is prevented from doing so because of a broken wing and the presence of an excited cat licking his lips at the thought of easy prey? The Oxford dictionary defines a cage as ‘a prison cell or a structure of bars in which birds are confined’. Was our bird ‘confined’ ? RB did not think so. He was very disappointed and disillusioned. In order to protect his right not to be deprived of his liberty he would be deprived of his liberty, in a place he detested, longing for the alternative he had seen and wanted. All this begs the question: What is liberty – of what was he being deprived?
2. Who Needs Democracy?
The difficulty in deciding on human rights through the European Convention is that it is not a statute. It is a mission statement and like all mission statements it contains a set of values of such obvious worth but lack of detail as to be, of themselves, worthless other than as a means of fighting oppression in countries with no history of robust, open democracy. In Kuijper v The Netherlands in 2005, it was put like this: ‘ Legislation may have to avoid excessive rigidity if it is to keep pace with changing circumstances… they are vague (and) must be left to interpretation… by the courts’. As we all know, no group is better at keeping up with social changes and having their hands firmly on the latest trends in social thinking than judges and no one is better at understanding social trends in England or Wales than a judge from the Ukraine or Azerbaijan.
In the paper, ‘The Conscience of Europe: 50 years of the European Court of Human Rights’ the Strasbourg court made no secret of its aims, saying: “It was envisaged that the Strasbourg system…would be dealing with issues of international law in the area of human rights and democracy. The system was perceived as a means of shoring up effective political democracy because States that protected human rights tended not to go to war with each other. However, these suppositions were defeated by the new fangled right of individual petition.” Note that it was the court itself, which lobbied for this right: “The judges must have been bursting with enthusiasm to leave their mark and were politely critical of the Commission for not sending it more cases.” The paper goes on with no sense of irony at all to say, “The founding fathers would no longer recognise their brainchild.” And there is this further comment, “For the community of non government organisations it is sacrosanct.” This is highly revealing as NGOs are specifically designed to work outside the democratic institutions of the state.
The common law has developed over time from Magna Carta 800 years ago. This slow, careful growth has flexibly accommodated social changes while avoiding the frequent violent revolutions seen in other countries. It has also been sufficiently robust to withstand the occasional eccentric judgment. The key components of the system are a democratically elected parliament and incorruptible judges and, oft reviled but absolutely crucial, an inquisitive, vocal and free, press.
The common law tradition is one in which parliament exercises a democratic mandate to make law and judges interpret it. If parliament does not like what the judges do they are free to change the law and frequently have. But they would do so only if they were able to carry the people with them, otherwise they know the people would take their revenge at the next election. Whilst European jurisprudence seeks to acknowledge the need for balance, the fault lies in the European judges having not just the trump card but the only card. As Roger Bootle, a leading economist and one of the Chancellor’s panel of ‘wise men’ put it, ‘an enterprise conceived by politicians and administered by lawyers will have a tendency to fall foul of the law of unintended consequences by making rules which are supposed to bring benefit without taking due account of the effects’. Balancing those competing interests requires a parliament accountable to the people. The role of the press is essential. In spite of recent scandals it must be active, to dig dirt, to expose errors, to make fun, to challenge and to provoke debate because apathy and ignorance are the real enemies of human rights.
The law is not easy to understand or apply. The Law Society ‘Practical Guide’ is 135 pages long. There are 11 chapters and 6 ‘Quick guides’. There is even an 18 minute podcast to help those who prefer the movies to the library. Who would have thought that governments so hell bent on destroying the legal profession, secretly harboured a Santa Clause wish to spark a feeding frenzy among lawyers delivering training and opening DoLs files.
What is remarkable is that I can find no definition anywhere of what it that we are depriving people of. The ECHR does not define liberty. No judge defines it. Everyone assumes they know what liberty is and that everyone else shares this understanding. But do they?
In Rochdale v KW (2014) EWCOP 45 Mostyn J. suggested that the Supreme Court re-examine its decision in Cheshire West because he found it, ‘simply impossible’ to see how protective measures can be characterised as a deprivation of liberty. He went on, to much scathing, not to say sarcastic commentary, to quote J S Mill’s view that a person requiring protection and care by others must be protected from their own actions as well as against external injury. Pointing out that Art 5 created not just the right to liberty but to security, he concluded that the care arrangements were the only way of implementing this right. A judge quoting philosophy deserves attention and, as we will see later, this idea may have wings.
But Mostyn is not alone in struggling to see how these situations can be classified in terms of deprivation of liberty. In Cheshire West, Lords Hodge and Carnwath both felt, “That nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty….we are struck by how the judges in the courts below, with far more experience than we ourselves can claim, have laboured to keep the concept of deprivation of liberty in touch with the ordinary meaning of those words.” They go on to, “share the concern of some of the judges below as to how such a test would have applied to HL,* once returned from hospital to the placement with his foster parents, as required by the court’s decision in that case. It is true as Lady Hale says (para 53) that no-one suggested in that case that his position there would involve a deprivation of liberty. But that, surely, was because it had not occurred to anyone (including the court) that such a placement in an ordinary home environment could constitute a deprivation of liberty for the purpose of article 5, even though the degree of control for practical purposes would be the same as before.”
High court judges are not wide-eyed innocents from the sticks, still less are SC justices. We can safely assume that they have demonstrated the appropriate competencies. So if they cannot understand how these situations can be described as an affront to liberty then we must look further to find the predicate on which this issue is to be understood. It seems that the only explanation for these different views is that they have different understandings of what is liberty.
We must not discriminate. All the justices agreed that if you and I were subject to conditions which amount to a deprivation of liberty then that should be so also to a disabled person. No one can disagree with that. As Lady Hale put it, it is to set the cart before the horse to decide they are not in need of the safeguards of Art 5 by virtue of their profound disability BUT what if the horse is pulling an empty cart? To know whether we are being deprived of something we need first to establish what it is of which we are being deprived.
3. Cheshire West – Problem Solved?
P in Cheshire West required intensive support. His incontinence and lack of mobility required close attention. Physical intervention was necessary to remove incontinence pads from his mouth as he tended to try to eat them. If this was not done he might well choke. He would be at risk of personal harm from self neglect and required assistance to mobilise. Lacking any agreed basis for establishing what liberty is, Baroness Hale was driven to couch her decision in terms of what a DoL is not. We know it is not relevant that there is compliance or lack of objection or that the placement is one of relative normality and that the purpose or motive are irrelevant. But why? What principle guides these criteria? The answer is that there are none other than those created by lawyers dealing with particular facts in separate cases, prepared by different lawyers with varying areas of specialisation. Let us not forget lawyers present the case sought by their clients. They want a particular result regardless of context or the wider implications. The phrase ‘bad cases make bad law’ contains an uncomfortable truth.
The Strasbourg jurisprudence establishing what amounts to a DoL starts with Guzzardi v Italy in 1980 which is as far removed from the facts of Cheshire West as can be imagined. The applicant was a suspected Mafioso awaiting trial. He had been taken to an island where he was unable to work or keep his family permanently with him. Asinara lies off the north-west tip of Sardinia and is, today, a nature reserve. Then, most of the island’s 50 sq. km., were a prison with an area reserved for persons in compulsory residence of about 2.5 sq. km. This area was bordered by the sea, roads and a cemetery but there was no fence to mark out the perimeter. The court held that there was a deprivation of liberty. It was this judgement which set out the key parameters which forms the basis of all judgements on DoL and it is interesting to revisit them; ‘The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance.’ Really? It gets worse, ‘Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection….’ ‘the starting point must be [the] concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.’ In other words, it depends on the facts and the people who will decide will be the European judges.
Given that DoL is whatever Euro Court says it to be, it is unfortunate that, per Lady Hale at para 32 Cheshire West, the law is ‘clear in some respects but not in others’. Prof Jones suggests pragmatism should apply to avoid certain unappealing conclusions eg P in an Intensive Care Unit. It is also suggested by Lord Hope (at para 34 in Austin v Commissioner of Police 2009), that ‘there is room, even in the case of fundamental rights as to whose application no restriction or limitation is permitted by the Convention, for a pragmatic approach to be taken of all the circumstances’. As the law has been made up as it has gone along on a fact-sensitive basis this is probably the only way it can avoid contradictory and potentially absurd results. We are entitled to ask whether a fundamental right to liberty should be subject to such fudging but this is the inevitable result of proceeding to develop a law on the loss of something without first deciding what it is we are losing. When the law has been formulated to exclude the reason for the arrangements for P or the purpose behind them as it has in Cheshire West, then the room for manoeuvre becomes narrow indeed.
Subsequent courts have stumbled blindly from one individual decision on the facts to another. Without any analysis of substance the result is an almost infinite list of fact-sensitive circumstances leading to a library from which courts must attempt to assemble a jigsaw where the pieces were never one complete picture in the first place. If a camel is a horse designed by committee then Cheshire West may be liberty designed by judicial committee.
In Cheshire West, Lord Nueberger confirmed that valid consent can defeat the conclusion that someone is DoL. But as we’ve seen from RB, the judges will decide whether the consent of someone with capacity will be accepted. So it is clear that where the wishes of a capacitous person can be dismissed, we are going to encounter very significant difficulties in cases where the individual lacks capacity. Where capacity is absent, someone else must decide what is in that person’s best interests. It might be that it is their best interests to keep them safe, fed, clean and free from harm which can only be delivered under constant supervision and control. What may be in their bests interests is an excluded factor in deciding whether there is a DoL * but by what principle is this so? A best interests decision is NOT a substituted decision ie what the person would have decided if they were able to do so. This is the test used in most states of the USA. But not here: s 4 of the MCA sets out a list of factors to be considered of which wishes and feelings of P are but factors. Best interests are what the decision maker decides, objectively, to be in their best interests. Who decides whether or not there is a DoL? Judges. So the question comes back to this: what it is of which P is being deprived? Until we grapple with this, the fundamental right to liberty will be a lawyer’s dream for, whilst judges are at pains to stress that one case cannot form a basis for decisions in another, the actuality is a body of case law where facts are picked over like the clues in a ‘who-done-it’ to arrive at a decision. The jigsaw is not looking too good, with odd shapes cut and glued, pressed and bent, to fit.
Lady Hale relied heavily on the concept of equality which is another socially worthwhile concept which has been played with by the legal profession with results not entirely meeting universal acclaim. But the fact that equality was used as a deciding factor is telling. All the SC justices accepted that, if it was a DoL for me then it must be a DoL for all. Who could disagree? But is liberty the same for all, in all circumstances? The courts do not believe it is: children subject to parental responsibility (Neilson) and soldiers (Engel) having been excluded by a judiciary sensing something to be ‘not quite right’ about the direction their jurisprudence was taking them yet unable to find the intellectual basis on which to exercise their formidable powers of reasoning. If liberty is fundamental, universal and there must be no discrimination between people, then the law is unsatisfactory.
4. Philosophical Approach
What is meant by liberty has exercised human minds for as long as we have possessed the power to think. Aristotle said that liberty is that a man should live as he likes otherwise he has the mark of a slave. The Roman Emperor Marcus Aurelius wrote of equal rights and freedom of speech and a kindly government. We are celebrating 800 years from Magna Carta. Human rights were not invented in 1998.
Thomas Hobbes wrote ‘The Leviathan’ in 1651 in which, seeking to avoid the horrors experienced by the Civil War, he argued that liberty is what can be safeguarded by a strong government in which the people assent through a civil contract. John Locke, also writing in the 17th C, took a different view; he felt that people have liberty to do whatever they like save as limited by laws applying to all as decided by the common will so that they are consistent, known and not arbitrary. This is a familiar requirement for the law as we know it today.
John Stewart Mill, quoted by Mostyn J, was a 19th century philosopher who identified the question, how and by who was the conflict between liberty and authority to be decided. In ‘Two Concepts of Liberty’ he raised an idea which was later articulated by Isaiah Berlin in 1958 as the concept of positive and negative liberty.
In Berlin’s terms, the negative concept of liberty attempts to answer the question as to the area within which the person should be left to do what he is able to do, without interference by other persons whereas the question for positive theorists attempts to determine what, or who, is the source of control or interference that can determine someone to do one thing rather than another. It is noteworthy that in neither concept can liberty be considered other than in the context of what it is physically possible to be done.
While the extent to which power, and thereby decisions between competing interests, rests in the people is disputed, the argument is firmly rooted in the society in which people live. It is by no means clear why the power should be the exclusive preserve of lawyers.
Since the positive theory of liberty tends to be concerned with what inhibits the individual personally, this can lead to demands that the state create the conditions for self-sufficiency and self-realisation. Some elements of this thinking are seen in those who suggest that private education should be banned and examination grades adjusted so as to redress the disadvantage of a poor education. Indeed we see university admission policies pursuing the same means of addressing inequality. It also explains why Mostyn J found that, far from depriving P in Cheshire West of his liberty by constantly monitoring his potentially self-harmful activities, it would be a denial of his liberty to fail to do so.
In 1991, John Christman proposed that positive liberty includes the way desires are formed so that there is a distinction between views formed as a result of rational reflection as opposed to those resulting from pressure, manipulation – or ignorance. To take a current example of the implications: a woman dresses in a particular way, be it on the one hand in short skirts and high heels or on the other extreme from head to toe in a burka. According to the Christman’s theory each is free if the decision has been reached by weighing up the options, which might include a wish to please others, to ‘fit in’ or achieve objectives which she might desire. In this way she has liberty provided her mode of arriving at the decision is free from manipulation or deceit. Personal autonomy and the acknowledgement that unwise decisions do not necessarily show that someone lacks capacity is at the heart of the Mental Capacity Act.
It will be clear that trying to understand liberty in philosophical terms creates significant practical problems, but it does allow society to engage in a debate which allows us to frame the concept of liberty in a way which demands general acceptance. It also suggests that the way the issue is approached by the courts is not the only way of addressing the issue nor, it could be argued, is it the most sophisticated or obvious way.
Is there any other philosophical way of identifying Liberty? In 1976 Gerald MacCallum suggested that all theories on liberty are but different approaches adopted to identify where liberty exists or where it is lost or as philosophers express it, when someone is fee and when they are unfree. This distinction, whilst somewhat inelegant, makes an important point namely that to be free to act is not the same thing as being able to act. McCallum identified that liberty to be the freedom from constraints to do certain things, is common ground. From that premise he identified a relationship of three factors for exploring Liberty:
- Who is free or unfree?
- From what are they free or unfree?
- What are they free to do or become?
It is therefore necessary to agree, in any given situation, not only who we are talking about but to identify the specific constraint on liberty and, crucially for the purpose of this analysis, what it is which the person is free or unfree to carry out.
If I am incapacitated by natural causes, by a genetic handicap or by climatic conditions, I may be rendered unable to do certain things, but I am not, for that reason, rendered unfree to do them. Freedom is seen as a social relation. It is a relation between persons. Freedom as a non-social relation is the concern of engineers who might be able to provide home improvements or for medics who can cure me. These are concerns which are properly for political institutions involving public debate.
It may be thought that talk of the political context of liberty is not going to be helpful to our difficulties in addressing Cheshire West, but this avoids the problem. Whenever a case alleging breach of Art 5 is brought it is against the state, alleging the state took action or failed to take action which results in an unlawful DoL. The state is compelled to remedy any breach which, as in the aftermath of Cheshire West, can involve formidable work and cost. The social and economic consequences are surely matters for debate in a democratic society. Given that the issues are not matters of substance but rather of degree, there would appear to be no strong reason for suggesting that judges are any better suited for this task than the elected representatives, subject to the democratic checks and balances existing in an open democracy. Whatever view may be taken the question is whether it is right to leave the decision to judges, specifically European judges.
5. A Lost Cause?
What is the way out of this unsatisfactory position?
Gillan v Commissioner of Police (2006) UKHL 12 dealt with claims that people were stopped and searched on their way to an arms fair. The question was whether anti-terrorism legislation gave the police lawful justification to do this. The court held that there was no breach of Art 5. The power to stop, detain and search was lawful as it was exercised in a way which was proportionate to the threat or, as it is described in the language of the European jurisdiction, it was not exercised arbitrarily. Lord Bingham (para 34) set out the harm against which the HRA was designed to protect us; ‘The public must not be vulnerable to interference by public officials acting on any personal whim, caprice, malice, predilection or purpose other than for which the power was conferred. This is what …. is meant by arbitrariness, which is the very antithesis of legality.’’ This was classic common law thinking.
An argument often heard is that finding that there is a DoL is a positive situation as it provides P with the protective measures and reviews. This is a curious justification for classifying care as a DoL and calls into question our approach to protecting the vulnerable. The risk is of hiding abuse behind an apparently safe structure. The CoP attempted to deal with the flood of DoLs applications by introducing a streamlined procedure which was designed to be ‘minimally Art 5 compliant’. The Court of Appeal (Re X Court of Protection Practice 2015 EWCA Civ 599) were critical of the procedures in that they failed to ensure P was a party. It is shocking that our courts should have felt that leaving P out of the process was acceptable but it demonstrates that the assumption that Liberty is a matter which can safely be left solely to judges as they are uniquely above considerations of resources or expediency is misplaced. Government has made judges managers. We regularly have resource implications affecting outcomes. Let us also remember that the CQC had a plethora of inspections and procedures which gave a clean bill of health to organisations guilty of disgraceful harm and abuse.
So could we not devise processes to regulate and monitor vulnerable P’s who are looked after without framing the situation in terms of liberty? Not while we are subject to the supremacy of the European jurisprudence. Deprivation of Liberty is whatever Strasbourg says it is. In Cheshire West, Lady Hale referred to Section 64(5) of the Mental Capacity Act, which states that references to a deprivation of a person’s liberty have the same meaning as in article 5(1) of the Human Rights Convention. She then went on to say, “As the object was to avoid the violation identified in HL 40 EHRR 761, it seems clear that we are expected to turn to the jurisprudence of the Strasbourg Court to find out what is meant by a deprivation of liberty in this context.” The case-law, mix-and-match approach to addressing this fundamental issue is unsatisfactory. As Lord Hope pointed out, this leaves room for manoeuvre as a fact- sensitive process will inevitably throw up facts never decided upon before. His point was made forcefully when, picking up lady Hale’s reference to the violation of Art 5 identified in HL, he noted that no one suggested that HL, if returned to his carers, would be DoL. The Euro decision in HL was predicated on the fact of his removal from, and failure to be returned to, his carer’s control. No one considered for a moment the possibility that the restrictions which were inevitably required to address his disabilities would be considered as a DoL in his carer’s hands. So a decision, on very different facts, with a fundamentally different focus, leads us by a circuitous path, to Cheshire West.
The Strasbourg view of Liberty is not shared universally. In the USA the concept of DoL in the context of people accommodated to keep them safe, is utterly alien. Their system of conservatorship allows family, friends and institutions to manage disability, not legalise the inevitable impact of it. Australian MH legislation addresses risks, not best interests. In contrast the Canadians have adopted a best interests, rather than risk based approach but this has raised criticism of paternalism. Neither would recognise that doing one’s human best for someone who is profoundly disabled, involved a denial of their Liberty.
The fact is that what Strasbourg regards as a deprivation of liberty is not quite so fundamental or as incapable of derogation as it might be portrayed. Lord Bingham identified a ‘guiding principle’ from the Strasbourg court requiring an assessment of the impact on the person eg Engels, where disciplinary measures on a soldier might not amount to a DoL whereas they would if imposed on a civilian or Neilson where children are not DoL if a parent desires it. It is demonstrated by the Convention itself. Art 2 of Protocol 4 (not ratified by the UK) deals specifically with restrictions on movement. This distinction with Art 5 has led to it being argued, starting with Judge Fitzgerald in Guzzardi, that a DoL must relate to imprisonment or some confinement which is so close to it as to amount to the same thing. Thus Strasbourg has had to grapple with house arrest cases by balancing the number of hours of confinement against the hours of freedom. Cases on restriction of movement include Italian cases where curfew 8pm to 6am or curfew 8pm to 7am plus confinement to a certain area which he was not entitled to leave were not DoL. The judges avoided drawing the line in terms of specific hours, no doubt uncomfortable with what this would mean for their concept of liberty. In domestic control order and TPIM cases the courts were consequently driven to consider loss of Liberty in terms of the number of hours of confinement but shied away from saying how many hours represent a loss of liberty, falling back on, ‘it depends on the facts of each case’. This is inevitable for an undefined aim but wholly unacceptable as a principle of law.
Look at Guzzardi – what if he was allowed a family visit on the mainland? How many hours would be enough to prevent this being a DoL? This is not the way the law should work. It is unprincipled. One judge did grasp the nettle. Lord Brown in SoS Home Dept v JJ (2007) decided not to dodge the uncomfortable logic of this line of argument – 16 hours would be the cut off: below this figure no DoL, above it there is a DoL. This is an entirely acceptable legal proposition as it provides lawyers with the certainty they demand but makes no pretence at being a proposition attracting a social and democratic consensus.
Cheshire West does not solve the problem. The condition that the confinement must be subject to complete control and supervision allows an awful lot of what many would regard as a deprivation of their liberty to pass without remedy. Ironically, those most likely to require such complete control are the most profoundly disabled. This is an odd view of equality. The unaddressed question of course is that it all depends on what we mean by ‘liberty’.
There may yet be hope. Mostyn J attempted to open an escape route from the judicial dead end into which the Strasbourg jurisprudence has stumbled by pointing out that Art 5 is not just about liberty but also ‘security’. As we saw earlier, he argued that far from depriving P of his Liberty, Art 5 required the restriction which were an inevitable consequence of keeping him safe from harm. This was seized on by Bodey J in KD v W City Council (2015) EWCOP 20 as part of the justification for deciding that an elderly lady was not DoL in spite of restrictions in her home whereby she was not free to leave unaccompanied.
In a recent Upper Tribunal decision SSJ v KC (2015) UKUT 376 Charles J dealt with a patient in a similar predicament to RB except that crucially, unlike RB, he lacked capacity. As a result, by virtue of the familiar ingenuity deployed in mixing and matching the MHA and MCA, the patient could be discharged from hospital notwithstanding conditions amounting to a deprivation of liberty because this could be authorised by the MCA DoLS. However it is the obiter remarks relating to capacitous patients like RB who give consent which are interesting;
“The choices presented to the Court of Protection and a patient with the relevant capacity can be limited or wide and easy or difficult. For example, they may have to make choices between whether to have unpleasant and risky surgery for a medical condition or not to have surgery knowing the underlying condition may lead to death. However the existence of only unpleasant choices does not prevent the individual patient having the right to choose or the Court of Protection from choosing on his behalf”…. “(decision makers) need to be alive to the possibility that an expression of consent may not be “real”, but if real consent is given to the relevant protective conditions there will be no deprivation of liberty under or in breach of Article 5″…. “The right to give or refuse consent to something is an expression of the autonomy of the individual and thus the state has a duty to respect that expression of autonomy under Article 8 ECHR. That right applies equally to a detained mental health patient who has capacity as it applies to any other person.”
I could not have put it better. The Law Commission is currently open to public consultation on DoLS. We do not need more complicated legislation and court rules. We need to answer the question no-one is asking; what is it of which there is a deprivation: in short, what is liberty?
John O’Donnell is senior partner of O’Donnells Solicitors, a specialist mental health practice based in Preston Lancs. They acted for the patients in Cheshire West and SoS v RB. This article is based on a talk delivered by John to the MHLA CoP conference on 3 July 2015.