Wednesday, 16 June 2010

Is liberty relative?

The Court of Appeal seems to think so, and that is relevant to the Deprivation of Liberty Safeguards

Some suggest that there is such a thing as ‘residual liberty’; that although I might lose my liberty by order of the court, or because of my mental disorder, I do not lose so much of it that I cannot subsequently lose more. The Court of Appeal made this suggestion recently (Iqbal v Prison Officers Association [2009] EWCA Civ 1310). Although it is based on an earlier case in that court, it sits uncomfortably with the view of the House of Lords in the same case (R v Deputy Governor of Parkhurst Prison and others, ex parte Hague [1990] UKHL 8) and with a later decision of the same court. But what would be the implications of residual liberty for the Deprivation of Liberty Safeguards (DoLS)?

The DoLS are intended to protect incapable people in care homes and NHS hospitals who are deprived of liberty. There is, however, confusion about what that might mean. But what if the ‘liberty’ of which one must be deprived in order to come within the DoLS was to incorporate the ‘residual liberty’ mentioned in Iqbal? (That must be a legitimate question. The nature of liberty surely cannot differ according to whether it may be taken away by the criminal law or the civil law.)

A question of degree
The notion that some vestige of liberty might survive detention suggests that one may be deprived of liberty to varying degrees: I am undoubtedly deprived of liberty if I am committed to prison or detained in hospital, but it seems that is not the end of the story, and that by being confined to a room or cell, perhaps, I might be further deprived of liberty. (That would in itself be problematic for the DoLS: the notion is not contemplated, either in the safeguards themselves or in the accompanying code of practice, and as a result, we are not told what ‘degree’ of deprivation of liberty would have to be achieved before they were engaged.)

This suggests that the question not just of how far one is deprived of liberty, but also of whether one is deprived of liberty at all, is also a relative one. And this in turn seems to demand a comparison between one’s current and former states, and to entail that one’s ‘residual liberty’ will only be in question if one’s current state represents a further degree of confinement from one’s former state. (A man’s ‘residual liberty’ is not in question if, it being lawful to imprison him, he is simply moved from one gaol to another, or from a gaol to an island. It is in question, however, if lawful authority exists simply to confine the man to a room, but he is subsequently locked in a cupboard.)

But what, in this context, does the ‘residual’ in residual liberty actually mean? With what former state is one’s current state to be compared; with some pure, absolute, antediluvian state of liberty, perhaps? (See further here.)

An alternative view, which seems implicit in the few decisions that actually consider residual liberty, is that the comparison is not with abstract liberty at all, but with the actual state that immediately preceded the current one. In some ways, this would be sensible: where a man confined to his own house by disability is moved to a hospital that he cannot leave for the same reason (and only for that reason), it seems odd to argue that he is deprived of liberty. (To do so would be to imply that alongside their negative duty not to prevent the man from leaving, the proprietors of the home have a positive duty actually to enable him to do so, and that if they do not fulfil that positive duty, they will have to resort to the DoLS or run the risk of being held to have unlawfully detained him.)

But such a course might also produce less welcome results. Consider, for example, two men in a care home, each of whom is confined there under lock and key: Mr A came from his own home, whereas Mr B came from the maximum-security wing of a local prison. If the question of whether a person is deprived of liberty really is a relative one, and the person’s immediate past state is relevant, Mr A’s current state amounts to deprivation of liberty, whereas Mr B’s does not, even where the interventions are precisely the same in the case of each man.

This curious position is the result of treating deprivation of liberty as a relative concept, as someone might do, and might have to do, who accepts the notion of residual liberty. It sits oddly with the DoLS, however, and might imply an even more damning conclusion: not just that ‘deprivation of liberty’ was poorly thought-through, that has been clear for some time. Despite its crucial place in the safeguards to which it lends its name, the concept fails to address key jurisprudence and is fatally undermined as a result.

A new review

Last week's edition of the New Law Journal carried the following review of my essay collection, A Tendency to Laugh and Sing, after which this blog was named. It was written by Tim Spencer-Lane, who is a lawyer with the Law Commission

Dr David Hewitt will be a name familiar to most NLJ readers, especially mental health lawyers. As well as being a prolific writer and commentator, he is a mental health solicitor, visiting fellow of Northumbria and Lincoln Universities and a judge of the mental health tribunal.

This book is a collection of articles and lectures written by Dr Hewitt between 1995 and 2007, including several that appeared originally in NLJ. Some are short and sweet (for example, a one page letter to the editor of the British Medical Journal on the landmark Bournewood case) others are lengthy and academic.

The book is divided into five chapters. The first looks at the impact of the European Convention on Human Rights on mental health law. The second deals with significant issues in mental health case law during the period. The Bournewood case and subsequent legal developments in the field of mental incapacity are covered in the third chapter. The fourth looks at the previous government’s lengthy attempts to overhaul mental health legislation, including the aborted draft Bills of 2002 and 2004, which ended with the amending of the Mental Health Act 1983. The final chapter is described as a “ragbag of articles” which do not fit easily into the other chapters—such as the definition of a hospital in mental health law and risk assessments in relation to violent sexual offenders.

The poignant title of the book is taken from an official report on a 19-year-old Mexican-American woman who was arrested in Arizona in 1912 and who was subsequently confined involuntarily for over 50 years. But Dr Hewitt often does good titles; my personal favourite being “Bournewoodn’t” for an article where he argues that the new deprivation of liberty safeguards introduced by the Mental Health Act 2007 may not have protected Mr L, the original Bournewood patient. The period covered ensures that the book provides a fascinating historical record of a tumultuous era in mental health and incapacity law reform.

Civil & human rights
However, the real strength of the book is to showcase Dr Hewitt’s impressive body of work and unique writing style. He presents intellectual analysis in a down to earth and readable style, and is not afraid to explore original and independent lines of argument. For example, while other lawyers condemned on civil rights grounds the previous government’s proposals to reform mental health law, Dr Hewitt claimed that the reforms were unnecessary since they had already been introduced via case law. In a series of articles contained in the book, he argued that the criticisms should not just be aimed at the government but at the deep flaws within existing mental health legislation which had already, for example, diluted the strength of the “treatability test” and allowed the introduction of compulsion in the community via long term leave from hospital. Perhaps his arguments lacked the passion of the human rights lobby but nonetheless they raised significant intellectual challenges for the then government.

Furthermore, in several other articles also contained in the book, Dr Hewitt develops an intriguing line of argument on the distinction in law between a “detention” and a “deprivation of liberty”, with only the latter, he suggests, eligible for the Art 5 safeguards under the European Convention on Human Rights. The devastating implication of Dr Hewitt’s argument is not only that the deprivation of liberty safeguards are otiose but that Art 5 is not engaged where patients are detained under the Mental Health Act 1983 in their best interests. If correct, this situation requires urgent remedial attention since it strikes a lethal blow potentially to the legal rights of many mental health patients. The book does have its faults. Many of the articles may now be of academic interest, the substantive legal issues and case law have since been settled, and some articles repeat each other. But overall this book sets out an impressive body of work. Dr Hewitt’s work has always appealed primarily to mental health specialists, and if you fall within this camp, this will be compulsive reading.