Expedient, but for whom?

Some police forces have leapt very eagerly upon the Mental Capacity Act (MCA); so eagerly, in fact, that they have begun to use it in preference to the Mental Health Act. That might be a perilous course.

Section 5 of the MCA gives all manner of people the power provide care to an incapable person. It seems it is now being used to take people to hospital who appear to be suffering from mental disorder.

That is already covered by section 136 of the Mental Health Act (MHA), of course, provided the person concerned is in a public place and appears to be in immediate need of care and control. Thereafter, he may be held in hospital for up to 72 hours while being assessed for possible admission, whether as an informal or a detained patient.

It is not hard to see why in this situation, the MCA might be preferred to the MHA: a constable who uses section 136 might have to remain with the patient while a bed is found for him, which might not be for several hours. The section 5 power, however, appears to carry no such expectation, and it is not subject to the formal arrangements that would otherwise apply.

But there are significant problems with this approach. First, of course, while section 5 may be invoked in a public place, it will only apply to someone who is, or appears to be, incapable, and so might not cover everyone to whom section 136 might apply.

The second problem will affect doctors and nurses more than constables, but it should be no less compelling for that. While section 136 includes the power to detain a patient after he arrives at hospital, section 5 does not: the relevant constable cannot confer such a power on those who receive the patient, and the MCA itself does not contain it. If the patient is incapable, it might be possible for the hospital authorities to invoke the Deprivation of Liberty Safeguards (although they will have to act with great speed in order to do so); but if he is capable, they will only be able to detain him substantively by using the MHA, a possibility section 136 would have given them fully 72 hours to investigate.

The use of section 5 of the Mental Capacity Act instead of section 136 of the Mental Health Act might well be expedient for chief constables, but that will almost certainly be at the expense of the NHS. It should not be contemplated, therefore, without proper, informed consultation with all concerned.

No place like home?

Since April, many hospitals and care homes have had the power to deprive people of their liberty. That is the result of the DoLS – the Deprivation of Liberty Safeguards.

The government prefers to see the DoLS as protection: a way of preventing the arbitrary detention of the old and the incapable. It is certainly true that the DoLS were introduced to fill a gap in the law; a gap rather embarrassingly revealed by the European Court of Human Rights in the 2004 case of HL v United Kingdom. Presumably, therefore, it would be a cause for concern if the new safeguards were not being used.

The government forecast that before next spring, around 21,000 people would have their cases assessed under the DoLS and a quarter of them would then be brought formally within the safeguards. According to the latest statistics, that is simply not going to happen.

* Of the more-than-300 local authorities and PCTs charged with implementing the safeguards, a large number claim to have had very few DoLS cases, and 14 have still not had any cases at all.
* If the experience of the first seven months is anything to go by, only around 8,000 – as opposed to the forecast 21,000 – people will be assessed in the first year of the DoLS, and the number of people brought within the substantive safeguards will be little more than a third of the predicted number.
* In fact, these national figures conceal an even more striking regional picture. One council, for example, reported 105 DoLS cases in April and May, while only two of its neighbours even reached double-figures.

These statistics are unpublished and unofficial, but they suggest that the reality will fall well short of the government’s own forecast for the DoLS, a forecast that was widely criticised for being too conservative. So, what is going wrong?

The powers given by the DoLS are not unfettered: they can only be used with prior permission from a PCT or a local authority. That in itself is controversial, given that it means that decisions about people’s liberty are now being taken by what are, with the greatest respect, administrative bodies. One problem in the Bournewood case was the patient’s lack of ready access to a court, and although the Court of Protection remains a long-stop, that problem might not have been solved by the DoLS. It is perhaps surprising that the Daily Mail hasn’t shown more interest.

Furthermore, the procedure for seeking DoLS permission is complex and bureaucratic - many would say unnecessarily so. It can take up to three weeks and involves several lengthy forms, six separate assessments and, usually, at least one psychiatrist and a social worker. Maybe that is what has made the procedure unpopular.

There are also broader problems with the DoLS, not least the fact that because of the way they are drafted, they might not even apply to the patient whose case led the ECtHR to do what it did. Furthermore, a recent decision of the House of Lords in a public order case might mean that there is no one – not a single patient with a learning disability or little old lady with dementia – to whom the DoLS apply. Maybe that explains the figures.

And there is also great uncertainty about precisely when the DoLS apply, reflecting similar uncertainty about just what it means to be deprived of liberty. Surprisingly, given its importance to what are, after all, the Deprivation of Liberty Safeguards, the term is not defined, either in the DoLS or in the slim code of practice that accompanies them. And now, there is growing anecdotal evidence that practitioners are taken wildly divergent views. That is unfortunate, both in itself and for a further reason: the statistics suggest that where a request for DoLS permission is refused, the commonest reason is that the patient was not deprived of liberty. If that conclusion was reached in error, permission is being refused where in truth it should have been granted, and a vulnerable person is being unlawfully detained.

But there might be another, perhaps related, explanation for the low take-up of the DoLS: that in some – quite a few, in fact - parts of the country, applications are being actively discouraged. That would be very worrying, and not just because public bodies would be failing in their duties. Hospitals and care homes too would be placed in jeopardy. Where permission is required to deprive an incapable person of liberty, the failure to obtain it will be unlawful and that one was discouraged from seeking it will be no defence.

(This post first appeared as an article in the New Law Journal)

Deprivation aside, what is liberty?

Liberty is important, not least for the new safeguards that take its name. But what, in that context, does the word mean? The Deprivation of Liberty Safeguards (DoLS) are intended to protect incapable people admitted to hospitals or registered care homes. As the title suggests, they say that permission will be required before such people can be deprived of liberty. Given the importance of the notion, you might imagine that ‘deprivation of liberty’ is carefully explained. It isn’t: the DoLS use the term but don’t define it, and the accompanying code of practice says little that is original. In fact, the code simply restates the existing law, which might be where the problems begin.

Strasbourg
The DoLS seek to remedy defects identified by the European Court of Human Rights (ECtHR) in the Bournewood case. Those were defects in the common law, which the court said was too vague and too lacking in procedural safeguards to give many incapable people the protection demanded by the ECHR (HL v United Kingdom [2004] 40 EHRR 761).

The defects would only be apparent where Article 5 of the Convention was engaged; where, in other words, someone was deprived of liberty. The ECtHR said, “the starting-point must be the concrete situation of the individual concerned”, and that in deciding whether a particular intervention deprives someone of liberty, “account must be taken of a whole range of factors arising in a particular case[,] such as the type, duration, effects and manner of implementation of the [intervention] in question”. Crucially, the court said the distinction between deprivation of liberty, which will engage Article 5, and a mere restriction upon liberty, which will not, “is merely one of degree or intensity and not one of nature or substance” (HL v United Kingdom, above, paragraph 89). These words have proved extremely resonant.

The scale theory
The DoLS code draws heavily upon Bournewood. Noting the comments of the ECtHR on the crucial distinction, the code says: “It may therefore be helpful to envisage a scale, which moves from ‘restraint’ or ‘restriction’ to ‘deprivation of liberty’. Where an individual is on the scale will depend on the concrete circumstances of the individual and may change over time” (Department of Health, 2008, Deprivation of Liberty Safeguards: Code of Practice, paragraph 2.2).

There are, however, several problems with the ‘scale’ theory of deprivation of liberty. The first concerns its range: rather than with ‘restriction of liberty’, which surely comes some way along, shouldn’t the scale begin with ‘liberty’ itself? Logically, of course, there must be a number of points on the scale, each one representing a particular intervention in a patient’s life, from those that represent only a slight diminution of liberty to those that approach deprivation of liberty. But the number of possible interventions is not fixed; new ones might be made from-time-to-time, and any of them might be modified in numberless ways. The second problem, therefore, is that we can never know precisely how to populate our scale. Imagining, as it seems we must, that the poles represent complete liberty and its deprivation, where on that scale are the various interventions to be placed, and, crucially, where in relation to each other? Is putting someone in a low chair closer to deprivation of liberty than to liberty, for example, and how does it stand in relation to shepherding someone away from an open door?

The third problem relates to something else said by the code: when deciding whether someone is deprived of liberty, we might ask “Does the cumulative effect of all the restrictions … amount to a deprivation of liberty, even if individually they would not?” (ibid, paragraph 2.6). This begs an obvious question: if all we have is the scale, on which single interventions are placed side-by-side, how are we to take account of the aggregate of two or more of them? How, in fact, are we to aggregate them at all, and even if we succeed in doing so, where precisely are we to place the aggregated intervention? Is shepherding someone away from an open door closer to deprivation of liberty than putting him in a low chair and reducing the length of his visits from friends? How will the scale help us decide?

Finally, of course, there is the problem inherent in the very notion of a scale: all it does is display subtle progressions between two points, so it cannot help us with the DoLS. The knowledge that the use of ‘baffle locks’ tends rather more to the right-hand end than to the left is worthless. When what we most require is a ‘yes/no’ answer, the scale is deliberately designed to yield no such thing.

There is an alternative solution; one that is becoming common where the DoLS are used (or at least considered): to take the factors that suggest someone is being deprived of liberty and weigh them in the balance against interventions that are assumed to suggest the contrary. In that way, for example, the conclusion might be reached that a person placed in a low chair is not deprived of liberty today because he will see his friends tomorrow. Yet, though it might seem seductive, this act of balancing is also problematic, for it betrays a fundamental misunderstanding of the nature of liberty itself.

Liberty as an absolute
Among philosophers, there is surprising agreement about what liberty means. Even those who have very different views about its implications and, indeed, its derivation seem to accept that it is an absolute. For Thomas Hobbes, for example, “Liberty, or freedom, signifies the absence of opposition […] a free man is he that in those things which by his strength and wit he is able to do is not hindered to do what he has a will to” (Leviathan, 1651, chapter 21).

Generally, John Stuart Mill’s views were different from those of Thomas Hobbes. That the two men shared a common view of the fundamentals of liberty, however, is clear from Mill’s description of his ‘harm principle’: “[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant” (John Stuart Mill, On Liberty, 1859, chapter 1). And, a century later, Isaiah Berlin wrote, “I am normally said to be free to the degree to which no man or body of men interferes with my activity … If I am prevented by others from doing what I could otherwise do, I am to that degree unfree; and if this area is contracted by other men beyond a certain minimum, I can be described as being coerced, or, it may be, enslaved … By being free in this sense I mean not being interfered with by others” (Two Concepts of Liberty, 1958).

This notion, that we enjoy full liberty until, and only to the extent that, it is taken from us, is acknowledged in prison law. It would be surprising, therefore, if it did not obtain in the case of hospital and care home residents - the elderly or the profoundly learning disabled who might be expected to form the majority of DoLS patients.

Implications
The implications of this analysis are significant, not least when hospital and care home managers, those that advise them and even judges have to decide whether someone is being deprived of liberty. It seems clear that interventions said to increase liberty cannot do so; at best, they simply ameliorate the diminution of liberty. This means that it is incorrect to say of a man that the possibility he will see his friends tomorrow prevents his being deprived of liberty today, even though he is currently sitting in a low chair out of which he cannot rise. The balancing exercise described above is of no assistance whatsoever.

If liberty is absolute, all that need concern us for the purposes of the DoLS (and for other purposes besides) are these diminutions of liberty, and the only question is whether, singly or in combination with others, they are so significant as to amount to deprivation of liberty. (That much larger question is beyond the scope of this article.) Furthermore, the purpose of such diminutions is irrelevant, as is the context in which they occur. (So, for example, a person is as likely to be deprived of liberty in a high dependency unit as on a learning disability ward, something the DoLS, and many of those who should apply them, seem reluctant to acknowledge.)

Recourse to Thomas Hobbes and Isaiah Berlin might help answer a further problem raised in connection with the DoLS: what if a man has never been able to make use of his liberty? Do those caring for him have the additional, positive obligation to help him do so? Hobbes suggests not: “[W]hen the impediment of motion is in the constitution of the thing itself, we do not say it wants Liberty, but the power to move; as when a stone lies still or a man is fastened to his bed by sickness” (op cit). And for Berlin, “Coercion is not … a term that covers every form of inability. If I say that I am unable to jump more than ten feet in the air, or cannot read because I am blind, or cannot understand the darker pages of Hegel, it would be eccentric to say that I am to that degree enslaved or coerced” (op cit).

The Deprivation of Liberty Safeguards are being used far less than even the government expected. That might be because they are complex, or even because, less than 12 months in, they are still unfamiliar. But it might equally reflect widespread ignorance about what it means to be deprived of liberty. That would hardly be surprising, for there is widespread ignorance about what liberty itself means. The Code of Practice only serves to compound the problem. It advances a ‘scale’ theory that is both logically and logistically flawed, and in so doing, it misrepresents the problem it purports to have solved. The philosophical lessons of the last four centuries are clear enough: liberty cannot be weighed in the balance. It is something we have and might lose, not something we can only hope to achieve.

(This post first appeared as an article in the Solicitors Journal)