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.

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.

Poignant
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.

Reports reported

Most coroners are receiving an appropriate response, but that might not be the whole story

Where, after an inquest, a coroner believes that it might prevent other deaths, he can write to an appropriate authority, reporting the evidence he has heard. Any such report is sent under rule 43 of the Coroners Rules, and the coroner must copy it, and any response, to the Lord Chancellor. An analysis of those reports has just been published. Its contents might be seen as reassuring, but one or two significant concerns remain.

Statistics
In the six months from 1 April 2009, there were 164 inquests in which rule 43 reports were issued. A third of these concerned ‘hospital deaths’, and nearly a fifth, ‘road deaths’. Eight per cent, meanwhile, concerned work- or health and safety-related deaths, and a similar proportion, mental health-related deaths. The new analysis contains nothing, however, to indicate how these classifications were reached: was it according to the place or means of death or to its immediate cause, or to either the content or the recipient of the rule 43 letter? That deficiency is significant, for it might render the statistics unreliable. If, for example, someone were to die in front of a train, having absconded from the hospital where she had been receiving compulsory psychiatric treatment, would any rule 43 letter be classified as mental health-related; or as concerning a hospital death or one in custody; or as ‘railway-related’? This concern is compounded by the brief summaries provided in the new analysis, which suggest that some ‘deaths in custody’ actually raised distinct mental health concerns. Only one death, furthermore, was classified as ‘railway related’.

Wider implications
The new analysis provides details of some rule 43 reports that might have wider implications. In the ‘drug- and medication-related’ category, these include the death of a man who, believing it to be ecstasy, swallowed a substance used for de-worming animals. The coroner wrote to the Home Secretary and subsequently, the substance was brought within the Misuse of Drugs Act 1971. The analysis also mentions the unfortunate church warden, who died when he fell from his own bell-tower. After hearing that the man had not been wearing a safety harness, the Coroner wrote to the Archbishops’ Council, inviting it to take appropriate action. The Council, however, replied that as each parochial church council is autonomous, there was little it could do. It is only in this part of the analysis that we get a flavour of the responses coroners receive, but it is clear that recipients don’t always accept the content or the implication of rule 43 reports.

Coroners
In the period in question, rule 43 reports were issued in 61 of the 114 coroner districts. (The number of coroners that made no reports – 53 - is slightly down on the previous period’s figure). The most reports again came from the Greater Manchester South district, where ten reports compare with 18 in the earlier (and longer) period, but also from Brighton and Hove, which could only previously claim two reports. The City of Manchester, however, and Cardiff and the Vale of Glamorgan, are two coronial districts in which the number of reports fell considerably, to four and six respectively, from 12 and 15. The new analysis acknowledges that the highest-reporting districts are not representative of the whole. When they are discounted, the average number of rule 43 reports in the relevant six-month period is 1.06 per coroner district, or 1.98 per district making such a report.

Responses
Rule 43 now also requires recipients to respond to reports, and to do so within a specified period. On the face of it, the figures in the new analysis are encouraging, for they suggest that where a report was issued, no response was outstanding that was due within the same reporting period. That might not, however, be the whole story.

The format of the analysis allows to be listed as outstanding only responses to reports issued within the current reporting period. It provides no information about responses listed as outstanding in last report, and there were more than a hundred of those. Before April 2009, for example, the Manchester City coroner sent a rule 43 report to an electronics company. We know that the report concerned the maintenance of ‘cherry-picker’ machines and a response was outstanding at the end of the reporting period. What we cannot tell, however, is when, or even whether, that response was received.

Where organisations receive coroners’ reports, it seems most are complying with the amended rules. But they aren’t receiving them all that often. The official analysis suggests that on average, fewer than three rule 43 reports are made in each coroner district per year. And the limited scope of that analysis can itself minimise the embarrassment caused to those who persistently fail to respond.

Home thoughts, abroad

I wrote recently about the Deprivation of Liberty Safeguards (DoLS), by which incapable people can be deprived of liberty but given some basic protection at the same time. (See: here) I received a number of heartfelt, though by no means unanimous, responses, so I thought it might be helpful to report something of what my correspondents said.

No one disagreed that the number of DoLS applications is well below what was expected, but not everyone accepted that in some places, applications are actually being discouraged. One DoLS lead was “disappointed” by my suggestion. He said, “My team and I are working very hard at promoting the importance of the safeguards and very much take an if-in-doubt-apply approach”, and he described the DoLS as “a very powerful tool for positive change and holding services to account.”

Some correspondents felt the statistics might not reflect bad practice. One, a doctor in an area with little DoLS activity, referred to his local training strategy, which “emphasised that deprivation of liberty amounts to relatively draconian control over someone's life.” He favoured an approach based on the Mental Health Act: “For the last 20 years I have been a proponent of the use of guardianship as a means of making important accommodation decisions for people who lack capacity, and we appear to have roughly trebled the number of guardianships used in the last ten months.” Of course, while guardianship may be appropriate for those who are not within the DoLS, the conventional view is that it has little to offer where someone is deprived of liberty.

Most correspondents considered the safeguards unduly complex, and some reported general opposition to their use. One, a Mental Capacity Act (MCA) co-ordinator, said, “Many senior people consider deprivation of liberty a ‘bad’ thing and therefore are reluctant to invite external scrutiny on whether they are responsible for it.” Some felt the process might fail even without overt opposition. A DoLS lead wrote, “Care managers are not always recognising behaviours that warrant the need for a referral”, while someone else said the MCA “is not clearly and properly understood by many practitioners on the ground and certainly not by managers of homes and hospitals”. This might, he felt, have profound implications: “I am not sure that decision-makers are even getting through the starting gate of the MCA, never mind reaching the logical finishing line that is DoLS.”

Several correspondents identified poor planning as a problem. The doctor who favoured guardianship said that before resorting to the DoLS, everyone “should consider first whether they could change the care plan so that an individual was not being deprived of their liberty - emphasis on choice, few restrictions and keeping relatives on side.” One DoLS lead, however, saw this differently: “care managers drag their heels trying endless means of pacifying anxious service-users, only resorting to a DoLS referral after about three months of perseverance.” Far from it being necessary to keep relatives onside, she said most are “fearful of the possibility of loved ones being discharged to their care, and therefore their views about whether there is deprivation of liberty are somewhat distorted”.

This correspondent said that recently, “a wife told an assessor that her husband was absolutely fine, rarely spoke of wishing to leave the care home and could easily be persuaded to behave. This was in stark contrast to what had actually been occurring.”

Inadequate recording was also identified as a problem, not least by this same DoLS lead: “One of our referrals … failed due to insufficient evidential logging of the service-user’s behaviour. This raises the question: given that few care homes are meeting the guidelines for accurate and consistent recordings, will we ever be able to evidence a deprivation of liberty?”

Finally, several correspondents agreed that uncertainty about deprivation of liberty itself is a significant problem, and that different assessors might take different views, especially in more complex cases. A DoLS lead said, “I conclude that unless a person is shouting ‘let me out’ from the rooftops, wrestling staff to the floor and needing to be sat on, constantly making an opportune exit through any open door or needing heavy sedation to control their behaviour, it is just not obvious enough to amount to deprivation of liberty.”

The Deprivation of Liberty Safeguards continue to excite great debate, even if – or maybe because – they are so rarely encountered. From my own postbag, however, it seems that views are polarised, and that some people are profoundly dis-satisfied, both with the purpose of the DoLS and with the way they are used.

(A shorter version of this post appeared as a letter in the New Law Journal.)

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)