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.

When you got nothing ...

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... 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)