Better Leicestershire than the Isle of Wight

It’s official: in the first year of the DoLS there were far fewer applications than had been expected. That might not be very surprising, but a new report reveals that although authorisations also fell short, it wasn’t by nearly as many as was supposed. And if you want the protection of the Deprivation of Liberty Safeguards (DoLS), you’re 200 times better living in Leicestershire than in the Isle of Wight.

Key findings
The report covers the period 1 April 2009 to 31 March 2010, which marked the first full year of the DoLS. It uses quarterly data provided by every local authority and NHS primary care trust in England. Among its key findings:

* There were 7,160 DoLS applications in England, compared to the government’s prediction of 21,000 for England and Wales combined.
* Consequently, there were also far fewer successful applications (3,297) than predicted (5,000). That said, the proportion of successful applications (46 per cent across the year) exceeded expectations, and it increased as the year went on, from 33 per cent in the first quarter to 54 per cent in the last. Maybe the DoLS are becoming better understood.
* DoLS authorisations for people in care homes generally lasted longer than those for hospital patients: 60 per cent of those granted by local authorities, but only about a third of those granted by PCTs, were for more than 90 days. (Around a quarter of authorisations were for between 91 and 180 days, with care homes accounting for 50 per cent more of them than NHS hospitals did.)
* About four per cent of applications that were refused concerned patients who were nevertheless found to be deprived of liberty. (In the absence of an authorisation, the hospital or care home concerned would be acting unlawfully if it continued to deprive a patient or resident of liberty.)

Local authorities and primary care trusts
Both local authorities and NHS primary care trusts have DoLS responsibilities, and the new report shows that the former received 5,397 applications and the latter, 1,763. The split was therefore 75 per cent to 25 per cent, against a government prediction of 80:20. Furthermore, PCTs granted nearly 49 per cent of the applications they received, and local authorities, around 45 per cent.

Just over three per cent of applications were made not by patients or their relatives, but by third-parties, such as social workers, nurses or care workers. Of these, over 80 per cent were directed to local authorities and 20 per cent to PCTs, and around two-thirds led to full assessments being performed.

Urgent applications
It is possible, of course, for a DoLS authorisation to be granted by those responsible for the hospital or care home in which a patient or resident is deprived of liberty. But any such authorisation will only last for seven days, and it must be truly ‘urgent’. Surprisingly, perhaps, almost 5,000 substantive DoLS applications followed an urgent authorisation. Because every urgent authorisation should be followed by a substantive application, there must have been the same number of urgent authorisations. That number represents almost 70 per cent of all applications. It is worth bearing in mind what the DoLS Code of Practice says in this regard:

Wherever possible, applications for deprivation of liberty authorisations should be made before the deprivation of liberty commences. However, where deprivation of liberty unavoidably needs to commence before a standard authorisation can be obtained, an urgent authorisation can be given which will make the deprivation of liberty lawful for a short period of time. (Chapter 6, emphasis added)

And:

Urgent authorisations should normally only be used in response to sudden unforeseen needs. However, they can also be used in care planning (for example, to avoid delays in transfer for rehabilitation, where delay would reduce the likely benefit of the rehabilitation. (Paragraph 6.2, emphasis added)

There may be concerns that urgent authorisations are being misused. If so, they will be compounded by the fact that in fully 55 per cent of cases, the application that followed an urgent authorisation did not itself result in a substantive authorisation.

Regional variations
It has been clear for some time that DoLS activity is not at the same level in every part of the country. The greatest proportion of applications – 17 per cent - was received by local authorities and NHS primary care trusts in the East Midlands, and then in the London region (16.8 per cent), the South East (15.7 per cent) and the North West (10.7 per cent). The smallest proportion of applications was received in the North East (6.3 per cent) which also, perhaps oddly, had the second-largest proportion of approvals (52.8 per cent). The largest number of approvals was 54 per cent – again in the East Midlands - and the smallest, in the West Midlands (40 per cent) and the East of England (39 per cent).

But the new report is sufficiently detailed to show that the same wide variation exists within, and not just between, regions. Durham, for example, received 135 applications. In the local authorities bordering it, the next highest numbers were in Hartlepool, which received 67 applications, and Darlington (52). Gateshead had 28 applications (and Stockton-on-Tees 22), but Sunderland received only twelve and Northumberland only eight. The population of Northumberland is around two-thirds that of Durham.

The position is similar among local authorities in the south-east of England. Essex, for example, received 203 DoLS applications. Among its immediate neighbours, the next busiest was Hertfordshire, but its 54 applications represented only slightly more than a quarter of the total across the border. And the next highest had less than a fifth: Suffolk and Waltham Forest, with 35 each. Redbridge had 33, but then it was Havering, Enfield and Southend-on-Sea, all in the low-20s, before Thurrock on 15 and the Medway Towns on eight applications. Peterborough is only one local authority (Cambridgeshire) away from Essex, and it recorded no applications at all. But one of Peterborough’s neighbours, Northamptonshire, had 61 applications more (and has a population only around a quarter larger).

Essex cannot, however, claim the most DoLS applications among local authorities. That honour falls to Leicestershire, where they numbered 233. Completing the top four are Lancashire, which received 192 applications, and West Sussex, which received 163. The majority of local authorities received fewer than 50 applications, while Torbay and the Isle of Wight each received three, and Bath & North East Somerset and the Isles of Scilly were among the local authorities claiming to have received two and no applications respectively. Given that the DoLS are far more likely to affect people over 65 years-of-age (see below) these negligible returns are surprising, coming as they do from areas with significant numbers of aged residents.

Among NHS primary care trusts, Leicestershire was supreme, with Leicester City PCT claiming 136 applications and Leicestershire and Rutland PCT 115. The next busiest PCT was Nottingham, with 47 applications, followed by West Sussex (39) and Manchester (35). The majority of primary care trusts received fewer than 25 applications, and despite the relatively high number (36) claimed by its partner local authority, Blackburn with Darwen PCT did not receive a single application, a distinction it shared with Herefordshire, the Isle of Wight, Barking & Dagenham and Greenwich Teaching PCTs.

These combined statistics, therefore, reveal some striking anomalies, not least between Leicestershire, where there were 601 applications, and the Isle of Wight, where there were just three. Their populations differ greatly, of course, but whereas in the former region it took only 1,075 residents to account for each DoLS application, in the latter region it took 4,667.

Sex and age
The new report says a greater proportion of applications (53 per cent) concerned women than men. This disparity might, however, be a function of demographics, because two-thirds of all applications were made in respect of patients over 65 years-of-age, and women are more numerous in that group. (In fact, the rate of applications per 100,000 of population for those over 65 is nine times that for the 18-64 age-group.)

Ethnic origin
Over 90 per cent of applications concerned patients in the ‘White’ census group, with 2.6 per cent and 2.5 per cent concerning those in the ‘Asian’ and ‘Black’ groups respectively. In broad terms, the report says, these figures are “consistent with the make-up of the population as a whole”. It is nevertheless striking that a smaller proportion of DoLS authorisations were refused for patients in a minority ethnic group than for ‘White’ patients. In the case of ‘Asian’ patients, the difference is fully five per cent.

Refusals
In 83 per cent of cases, refusal of a DoLS authorisation was because deprivation of liberty was not felt to be in the patient’s best interests. Given the nature of best interests assessments, that might, of course, mean that the patient was not in fact deprived of liberty (however that concept is to be understood).

As might be expected, given the greater number of applications they received, local authorities generally accounted for a larger proportion of the refusals in each class. The exception, however, was ‘eligibility’ – essentially, the decision whether a patient might be better detained under the Mental Health Act. Here, fully two-fifths of refusals were for patients in hospitals. (Given that there are more hospitals in which the MHA may be used than care homes, that is not, perhaps, so surprising an outcome.)

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.)

Comparison
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.

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)

When you got nothing ...

www.houdinitribute.com

... You got nothing to lose. So sang Bob Dylan, but is that always the case?

Is it possible that someone in detention retains a measure of freedom, even after his liberty has been taken away? A recent decision of the Court of Appeal suggests that he does, at least if he is a prisoner (Iqbal v Prison Officers Association, 2009).

But hasn’t the court already told us that in the case of mental health patients, the reverse is true?

Mr Iqbal is serving a 15-year prison sentence. In August 2007, when he was at HMP Wealstun, there was a one-day strike by prison officers. All prisoners were locked in their cells by order of the governor and as a result, Mr Iqbal lost the five hours he would have spent at work or in the gym. He claimed that he had been falsely imprisoned by the prison officers, but he lost his case in the Court of Appeal.

The governor could not be liable to Mr Iqbal, because the Prison Act 1952 says that a prisoner may be lawfully confined by the governor. If a prisoner enjoys no ‘residual liberty’, that would, of course, have been a further reason for rejecting Mr Iqbal’s claim, but it did not figure here.

The Court of Appeal felt that there was such a thing as residual liberty. One of judges said, “even if [he is] lawfully within a prison by order of a court, a prisoner enjoys the liberty not to be further restrained by unauthorised action whether by fellow inmates or prison officers”.

But that idea seems inconsistent with the decision in the Munjaz case, which, of course, concerned a patient detained in a high secure hospital under the Mental Health Act 1983 (MHA). He was placed in seclusion for days on end and claimed that he had seen a doctor too infrequently (Munjaz v Mersey Care NHS Trust, 2003). The case turned upon the MHA Code of Practice and whether its requirements were fully met, but the Court of Appeal and the House of Lords also found that for detained patients, residual liberty – or what was called “prison within a prison” – did not exist.

Iqbal clearly has resonance in mental health cases, for under the MHA, the managers of a hospital enjoy powers similar to those endowed upon the governor of a prison: a valid detention application enables a patient to be detained, but also to be re-taken if he absconds, treated against his will and, following Munjaz, placed in seclusion (MHA, section 6(3)). In most cases, that authority will cover the hospital managers and those that do their bidding, but it won’t apply in other circumstances.

The cases of Iqbal and Munjaz are different, not least because the first was about a prisoner and the second about a patient, and also because they were decided according to substantially different authorities. Yet each concerned a man who said he retained some freedom, even after his liberty was lawfully taken away. It may be, therefore, that in entertaining the notion of residual liberty, the Court of Appeal has placed itself at odds not only with its earlier self, but also with the House of Lords.

And yet, the decision in this case goes to the heart of mental health care: it implies that in the right circumstances, a detained patient may challenge the decision to seclude him. No such challenge will lie against the principal detainers, of course: like the Prison Act in Iqbal, the Mental Health Act makes sure of that. But a claim might succeed where one patient locks another in a cupboard, or even where a formal decision to seclude a detained patient is inconsistent with established hospital policy.

(Bob Dylan, Like a Rolling Stone, copyright ©1965; renewed 1993 Special Rider Music)

Whose liberty?

Photo: Peter Jordan, PA

The House of Lords recently held that a woman who took part in the May Day protests of 2001, and who was one of several thousand people whom the police confined in Oxford Circus for up to seven hours, was not deprived of liberty. (Austin v Metropolitan Police Commissioner [2009] UKHL 5) The woman lost her case because their Lordships decided that the reason the police did what they did was relevant, and because they accepted that what the police did was proportionate and done in good faith.

Giving the lead judgment, Lord Hope cited a number of cases brought under the European Convention on Human Rights (ECHR), which, he said, established that in deciding whether there is a deprivation of liberty, “Account must be taken of […] the context in which the restriction of liberty occurs” and, therefore, of the purpose of the measures used. (Paragraph 21) Here, the purpose – crowd control – was a permissible one and “in the interests of the community”, so that Article 5 of the ECHR, which enshrines the right to liberty, wasn’t even engaged. This conclusion is likely to be deeply contentious, not least because the authorities do not mention ‘purpose’ at all; rather, they focus on the “type, duration, effects and manner of implementation of the measure in question”. (See, for example: Engel v The Netherlands (1979-80) 1 EHRR 647; Guzzardi v Italy (1981) 3 EHRR 333) These are plainly not the same things.

Lord Hope’s conclusion would appear to owe a great deal to the controversial European Court of Human Rights (ECtHR) decision in HM v Switzerland (2004) 38 EHRR 17. (See: David Hewitt, Whatever Happened to Winterwerp? Solicitors Journal, 10 May 2002, p 436) It did not find favour with Lord Walker, who argued that purpose was irrelevant to the question whether confinement amounted to a deprivation of liberty: “If confinement amounting to deprivation of liberty and personal security is established, good intentions cannot make up for any deficiencies in justification of the confinement”. (Paragraph 44) This, though, was a minority view. The other three members of the Appellate Committee fell in behind Lord Hope and, as she had been in the Court of Appeal - and also, though for slightly different reasons, at first instance - the claimant was unsuccessful.

The possibility that what would otherwise be deprivation of liberty will be prevented from being so by mere good intentions might surprise, and possibly infuriate, the government. Though it could easily have done so, the ECtHR did not reach this conclusion in the ‘Bournewood’ case. There, the Court found that Article 5 was engaged – and had been breached – where Mr L, a man with autism, had been confined to a mental health hospital for three months and prevented from seeing his carers. The Court said this, and not much more, amounted to an assumption of “effective, unqualified control” over the man. (HL v United Kingdom (2004) 40 EHRR 761) Lord Hope did not refer to this aspect of the case.

Because of Bournewood, the government has introduced the Deprivation of Liberty Safeguards (DoLS), which from 1 April 2009 will allow incapable people to be deprived of liberty if certain forms of protection are in place.

It was accepted that the measures used upon Mr L had been in his best interests. If, as the House of Lords has just done, the ECtHR had allowed that fact to prevent Article 5 being engaged, the government would neither have lost the Bournewood case nor been forced to introduce the DoLS. As it is, the DoLS will be relevant where an incapable person is deprived of liberty in his own best interests. Yet if strict observation of best interests will prevent there being a deprivation of liberty, there will be no patient to whom the DoLS apply. Could it be that even before they have come into force, the DoLS are otiose?

And the implications of their Lordships decision go further. If, no matter how constraining they might be, measures taken in the best interests of a patient will never engage Article 5, what is to become of people with mental disorder who are detained under the Mental Health Act? How are they to be protected against unlawful compulsion and what are we to make of the dozens of cases such people have brought, and sometimes won, claiming an impermissible breach of the right to liberty? This baleful question first arose after HM v Switzerland was decided in Strasbourg. It seems it must now be asked again, only this time, much closer to home.

The Deprivation of Liberty Safeguards might not have helped the original Bournewood patient

Deprived of liberty? Detained?

www.myfolsom.com

Every local authority, and every PCT too, will soon have new responsibilities for incapable people. But there are real questions about how far those responsibilities extend and just whom they cover.

The Deprivation of Liberty Safeguards (DoLS) will come into force in April 2009. They will be found in Schedule A1 to the Mental Capacity Act 2005 (which was inserted by the Mental Health Act 2007).

Background
The DoLS are the Government’s response to the Bournewood case, in which, in October 2004, the European Court of Human Rights (ECtHR) held that it would breach the ECHR for the common law doctrine of necessity to be used to deprive an incapable person of his liberty. (HL v United Kingdom, Application no 45508/99, Decision of 5 October 2004) The court said the common law was too vague and had too few safeguards to comply with Articles 5(1) and (4). For years, it was common law necessity that provided the legal basis for admitting incapable people to hospital and confining them there. Following Bournewood, therefore, a new framework had to be found to replace it. That is the purpose of the DoLS.

New safeguards
The Mental Capacity Act 2005 came fully into force on 1 October 2007. It provides a statutory basis for the care and treatment given to incapable people. At the moment, it may not be used to deprive such people of liberty (MCA, s 6(5)), but the DoLS will change that.

The DoLS will apply to an incapable patient accommodated in a hospital or care home if he is “detained [there] […] in circumstances which amount to deprivation of liberty”. (MCA, Schedule A1, paragraphs 1(2) & 15) Typically, they will cover patients with siginificant learning disabilities or older people who have dementia. In the case of any such patient, it will be up to the relevant local authority or PCT – as a newly-minted ‘Supervisory body’ under the DoLS – to decide whether he should continue to be so detained. This onerous responsibility might be made more so by confusion in the wording of the safeguards themselves.

It seems clear that in order for the DoLS to cover his case, an incapable person will have to be both deprived of liberty and detained. Regrettably, there is no official explanation for this distinction: the Code of Practice to the DoLS, for example, doesn’t even mention it. (Ministry of Justice, 2008, Mental Capacity Act 2005: Deprivation of Liberty Safeguards – Code of Practice to supplement the Main Mental Capacity Act 2005 Code of Practice). The case law, however, is somewhat clearer.

Detention or deprivation of liberty
At first, the Bournewood case involved a patient, Mr L, an application for judicial review of his detention and a writ of habeas corpus, and a claim for damages for false imprisonment. It was accepted that what must first be decided was whether he had been detained. (R v Bournewood Community and Mental Health NHS Trust, ex parte L [1998] 1 All ER 634)

What the common law knows as detention is not the same as what the ECHR knows as deprivation of liberty. The ECtHR reached this conclusion when it considered the Bournewood case, and, from a domestic perspective, it has been enunciated most recently in the Court of Appeal decision concerning the Oxford Circus demonstrators. (Austin and Saxby v Metropolitan Police Commissioner [2007] EWCA Civ 989) In the latter case, the trial judge found “that it is possible for there to be a deprivation of liberty without false imprisonment and vice versa.” (Ibid, per Sir Anthony Clarke, MR at [88])

This must be so, for in Bournewood, the ECtHR felt able to find that Mr L had been deprived of his liberty even though the House of Lords had ruled that he was not detained. (R v Bournewood Community and Mental Health NHS Trust, ex parte L (1998) 3 All ER 289) In Austin and Saxby, meanwile, the Court of Appeal held that although the claimants were not deprived of their liberty in the Article 5 sense, they were imprisoned (even if not falsely). (Ibid, at [105] and [12]) But this essential difference might prove harmful to the DoLS.

If detention is not the same as deprivation of liberty, and if one might exist without the other, it is conceivable that an incapable patient would be found to be labouring under the former but not the latter, and that he would therefore fall outside the DoLS, even though he fell firmly within the Strasbourg judgment in Bournewood.

Consider Mr L himself. We know, because the ECtHR told us, that he was deprived of liberty. But of the nine domestic judges that considered the case, only a bare majority felt he had been detained; and their Lordships, of course, went the other way. So, is it possible that the new Bournewood safeguards wouldn’t even have applied to the original Bournewood patient?