The following is an article written by John O’Donnell which appeared as the cover story in Solicitors Journal 14 February 2012 Vol 156 No 6.
The Court of Appeal has now confirmed in SSJ v RB (2011) EWCA Civ. 1608 that a patient detained under s37 Mental Health Act 1983 with restrictions under s41 cannot be discharged with conditions which amount to a deprivation of liberty. But are we any wiser on the fundamental question as to what constitutes a deprivation of liberty? Astonishingly, no one knows. Speaking on BBC Radio 4 (“The Report” 24.11.11) the head of the Court of Protection, Charles J, said that if 3 people were asked what is a deprivation of liberty, there would be 4 different answers. If the senior judge of the court designed to protect the liberty of those without mental capacity does not know the answer to this fundamental question, then it is hardly surprising that RB looks on our system of justice with incredulity.
RB is detained in a medium secure hospital under s.37/41 MHA 1983 for treatment of a delusional disorder causing paedophile tendencies. He is now 78 years old and wanted to go to a quiet community home with a nice garden. He loves walking and, because of the past life he led, is happy with the type of environment available. He came before the MHT (FTT) on 24 April 2009 who, having assessed him in evidence before them and aided by the RC’s evidence that he had capacity to consent, he was discharged on the recommendation of all the professionals. One of the conditions was that he not go out of the grounds without an escort, something which caused him not the remotest inconvenience or concern. The MHT concluded that the conditions were not so restrictive that they would amount to a deprivation of liberty and that, even if they were wrong on that, his valid, capacitous consent meant that there would be no deprivation of liberty (DoL).
The SoS did not want RB to be discharged at all so he appealed, arguing that the conditions amounted to a DoL so there would be no proper discharge. As a result the MHT decision was unlawful and he would have to stay detained in hospital. As Bean J said, dealing with a similar point in IT v SSHD  EWHC 1707 (Admin) para.17, “this is a curious area of human rights jurisprudence, in which the Secretary of State prays Art.5…. in aid of an argument that a patient should be detained in hospital”.
Liberté, égalité, fraternité ?
What amounts to a DoL has never been the subject of detailed judicial analysis since Guzzardi v Italy (1980) 3 EHRR 333. Since then there have been hours of argument in court which have amounted to nothing more than an attempt to match individual facts to situations from earlier cases, an approach entirely at odds with the principles espoused in Guzzardi that “the starting point must be [the individual’s] 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” (para.92). As Bingham LJ recognised in Secretary of State for the Home Department v JJ and others  UKHL 45 para.15, “the task of a court is to assess the impact of the measures in question on a person in the situation of the person subject to them”. He reiterated the observation he had made in R (Gillan) v Commissioner of Metropolis  UKHL 12 that it is “perilous to transpose the outcome of one case to another where the facts are different” (para.13).
There has never been any difficulty with the legal definition of “detention”, the word used in the MHA, which accords with an uncontroversial meaning of a DoL, namely incarceration in a prison or somewhere similar. The problem stems from the phrase ‘’deprivation of liberty’’ in Art.5. The ECHR was formulated by UK lawyers who needed to ensure that the Continent would have a legal framework which would never again fall under the heel of a totalitarian regime. They would have considered deprivation of liberty to be akin to detention but, moved by their continental colleagues’ noble vision of ‘liberté, égalité, fraternité’ , drafted a concept rather than a legal definition. Therein lies the problem for, as Lord Jowett the Lord Chancellor said at the time, “The real vice of the document …(is)… it’s lack of precision.’’ and he went on to query “what results would be arrived at by….elected persons who need not even be lawyers’’.
If the courts are to rule on what amounts to a deprivation of liberty one would have thought it important to first define what liberty is. It cannot be equated with freedom and we can never be at “liberty” to do whatever we wish. Our actions are constrained by the norms of society and the laws passed by Parliament. It is the duty of lawyers to make ideas workable and flexible enough to do justice according to the customs and values of the people. Without addressing this issue we are driven to the absurdity of trying to define liberty by reference to the number of hours someone is confined to their home.1. It seems that what amounts to a DoL is a matter of pure opinion.2. That being so, a layman might demand that those opinions be expressed with what ordinary right-minded people might regard as common sense. Looking at the range of restrictions discussed by the courts, it is hard to see why the requirement for RB to have an escort outside his accommodation should amount to a DoL. In R (SSHD) v MHRT, re PH (2002) EWCA Civ. 1868 the requirement for an escort while outside his house was not a DoL because it was for his own benefit but in R (G) v MHRT  EWHC 2193 (Admin) an escort for the protection of the public was. So the deciding factor was the purpose of the restriction. Deciding on what amounts to a deprivation of liberty on the basis of purpose is going to cause formidable problems in an already complicated area, as can be seen from Cheshire West and Chester Council v P  EWCA Civ. 1257.3 Introducing purpose at that stage leads to a consideration of best interests. In MCA cases this will often mean what the Local Authority thinks best (the cynic might say cheapest), but in MHA cases the best interests of the public, appears, after RB, to be the decisive factor. Even less so can this conclusion be justified when the State argues that in order to preserve his right to “liberty” he must remain under detention. When Ken Kesey wrote “One Flew Over the Cuckoo’s Nest” or Joseph Heller penned “Catch 22” they would have given a wry smile at the way the English courts were thinking in 2011.
The most disturbing aspect of the way the courts view the meaning of liberty is in the way the UT and the Court of Appeal summarily dismissed RB’s consent to what was proposed. There are 3 components to the question of DoL, namely the objective situation, lack of subjective consent and attribution to the State (see Storck v Germany  43 EHRR 96). So lack of consent is an important component. The UT and the Court of Appeal decided that his consent would not be allowed as a matter of law as he had “no choice”. Patients in hospital voluntarily often have no choice about staying as they do not want to be sectioned. CTO patients and those conditionally discharged have no ‘real’ choice about taking medication yet the adverse side effects can often have more profound consequences on their ‘liberty’ to live as functioning human beings than the inconvenience of asking for someone to go with them when they go outside. No life is entirely free from constraints on choice. The Mental Capacity Act 2005 seeks to empower those without capacity to make their own choices so that, just because others think a decision unwise, it does not invalidate it (see section 1(4).
The most workable solution is to take the MHT view as having been right in law and fact. Detention is a clear concept and, as Carswell LJ pointed out in JJ para.70 there is no need to impute restrictions on movement into Art 5 as they are specifically dealt with in Art 2 of Protocol No 4. The UK, along with a number of other countries, has not ratified Art.2. It seems that the judges in RB have made a value judgement for all restricted patients with the perverse result that the State succeeds in securing its wish to control them. Seen like this it is not the case that allowing RB to exercise his choice would create a class of patients who would be doomed to everlasting detention with no prospect of challenge. Unfortunately, it is now clear that a capacitous patient, who is seen as posing a risk, cannot consent to live outside hospital with a condition that he be escorted in the community. Also, we are going to have to look very closely at patients reluctantly complying with restrictions and taking medication since the alternative to compliance is that they are likely to be sectioned. They have no ‘’real choice” either.