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DOLS: When is safeguarding itself a deprivation of liberty?

allan norman 60.jpgby Allan Norman, Principal Social Worker & Solicitor at Celtic Knot (www.celticknot.org.uk), an independent law firm and social work practice.

One of the most important rulings of the European Court of Human Rights for social work must surely be that of H.L. v. THE UNITED KINGDOM – 45508/99 [2004] ECHR 471 (5 October 2004). It confirmed the need to plug the ‘Bournewood Gap’, giving us as a result Deprivation of Liberty Safeguards and Independent Mental Health Advocates, and making the Mental Capacity Act 2005 unlawful and in need of amendment even before it was implemented.

It also – surely – established and confirmed this fundamental principle for social workers: the absence of objection does not amount to consent; and therefore all the protections afforded to people to whom we provide services under compulsion must also be afforded to those who have not consented because they cannot.

The Court of Appeal ruled this week in a case P & Q v Surrey County Council [2011] EWCA Civ 190 (28 February 2011) – which may turn out to be the most significant since Bournewood – examining when our safeguarding activity itself is a deprivation of liberty.

Now, we know it is possible, because such a deprivation of liberty by a local authority intervention, was found last year in G v E & Ors [2010] EWHC 621 (Fam) (26 March 2010). But yesterday’s ruling discusses some much bigger issues.

A case about nothing at all?

Surrey must be particularly sensitive to deprivation of liberty issues. It is, after all, the location of Bournewood Hospital, where the story started. But there may not be deprivation of liberty issues lurking behind every tree!

The surprising starting point is that there was very little in dispute. It was agreed that Surrey had done their best. Their intervention was positive. The two adult sisters who lacked capacity had been removed from most unsatisfactory conditions. The authority had tried as far as it could to replicate family life in the community. The results were a success and the sisters were happy. Why then, was anyone applying to the court? Because there were concerns that, in the absence of consent, providing these services amounted to a deprivation of liberty.

Each member of the Court agreed that common sense seemed to say otherwise.

The result of mechanistic law?

This case seemed to be necessary because of the way the law is, on occasions, too mechanistic.

Article 5, the Right to Liberty is a limited human right. That means, it is a right with a list of exceptions. Unless your actions fall within one of the exceptions, the deprivation of liberty is a breach. The Court here questions the Convention itself:

“…the question arises, beyond the scope of this judgment, whether the draftsmen of Article 5 were wise to declare that the six cases which they specified therein constituted an exhaustive list of those in which a deprivation of liberty would not amount to a breach of it. A very different situation, namely the “kettling” of demonstrators by the police in Oxford Circus in the interests of public safety, prompts the same reflection…”

Further, caselaw has mechanistically developed a three-pronged test for whether there is a deprivation of liberty:

  • An objective test, is the person confined?
  • A subjective test, have they consented?
  • A ‘state test’, is the state responsible for the confinement?

Essentially, the parties in this case were concerned that Surrey’s safeguarding intervention triggered all three prongs, and therefore might amount to a deprivation of liberty. And if this were so, many safeguarding interventions would equally amount to such a deprivation. 

A case about objections?

What the court has to say about objections along the way to a sensible conclusion troubles me greatly. The court rapidly and sensibly disposes of the proposition that the fact that they are happy means they are not confined. Plainly, that is wrong, and the court says so. But what it says about objections ought to concern us as social workers. Unfortunately, it is, to say the least, confusing. But paragraph 25 argues that if objections are relevant, then the absence of objections is also relevant. Unless we are careful, we will reinvent the error of the Bournewood Gap, holding that in the absence of objections, we do not need to afford vulnerable people protections:

“…the absence of objections generates an absence of conflict and thus a peaceful life, which seems to me to be capable of substantial relevance in the opposite direction…”

No! A peaceful life has been bought at too high a price if we conflate the absence of objection of a person who lacks capacity with consent; and we will have learned nothing from Bournewood.

No deprivation of liberty

It seems to me that the correct conclusion that the Court of Appeal arrives at should have been arrived at by far simpler means. Sometimes, my students infer that Article 2, the Right to Life, is about quality of life, and I have to say, no, it is literally about life itself. Similarly here, Article 5 is not about the quality of our liberty, but about liberty itself. Surely it should be possible to say that an individual interference with a person’s free will may or not be right, may or may not be lawful, but is not itself a deprivation of liberty?

In which case our safeguarding activities, and each part of them, may need to be tested against many things; but not against Article 5 unless liberty itself is in issue – which on the face of it simply wasn’t true of these claimants?

The elephant in the room – interpreting communications

While I am concerned at the risk of reinventing the Bournewood Gap, and at how mechanistic law seems able to conclude that there might be a deprivation of liberty when liberty is not in issue, what I am most concerned about is the elephant in the room.

People communicate. People who cannot speak still communicate. People who lack capacity still communicate. They commuicate by many means. They may communicate by being markedly unhappy in one place, and content in another. Or trying to leave one place, and trying to stay in another. By being more aggressive in one place and less in another. To name but a few.

Our laws on capacity do not give sufficient weight to these communications. A person lacks capacity if any one of four elements is missing; communication is just one of the four. Once a person lacks capacity we start making ‘best interest’ decisions for them. We need to consider both that non-verbal cues may be communication, and evidence that a person does not lack capacity at all, at least for the basic decision at issue ‘are you happy here?’; and that if they do lack capacity, those non-verbal cues may be their express wishes, to which we should pay due heed.

This case concerned itself with big questions about deprivation of liberty. One wonders whether the more productive exercise would have been to ask, “what are these two sisters trying to communicate to us”, and to work out the legal conclusions.

We may end up concluding we don’t need Deprivation of Liberty Safeguards, we need Services under Compulsion Safeguards. That way, we will remember to check out what is being communicated about anything we do under compulsion, not just loss of liberty; but we will no longer have to shoehorn concerns into a Deprivation of Liberty framework that are about sensible good practice in the absence of consent.

About Simeon Brody

Community Care managing web editor

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