Guidance on applying the law on deprivation of liberty

By Belinda Schwehr

These questions have been raised with Belinda during her training sessions and webinars.

When Cheshire West applies

Are there any circumstances where the test in Cheshire West wouldn’t be seen to apply so as to trigger an application to the Court of Protection or through the Deprivation of Liberty Safeguards?

Even if a person is objectively confined, their circumstances will not fall within the scope of Article 5 of the European Convention on Human Rights if they have validly consented to the confinement. A person can only give valid consent to being subject to circumstances amounting to a deprivation of their liberty if they have the mental capacity to do so and are not under compulsion. The information relevant to that question goes beyond simply the information relating to the placement, to include information about the care and treatment and, broadly, the nature of the restrictions that will amount to an objective deprivation of their liberty.

As Mr Justice Charles said in the case of PJ v A Local Health Board and Others [2015]: “The fact that a person is objecting does not mean that they have capacity to consent to their care regime or a part of it. Also an objection does not of itself indicate whether a person with capacity is or is not consenting to the care regime. So PJ’s graphic description of the effect of the conditions of a CTO and their breach together [ “in my language, it means if you **** up it’s goodbye everything.”] with his objections to aspects of it do not indicate whether or not he has consented to it (or his capacity to do so).”  

Most obviously, the information will include the circumstances establishing that the person is under continuous supervision and control and not free to leave.

The acid test

What does this actually mean? Is it really ‘continuous supervision and control’ AND ‘not free to leave’ or is it ‘continuous supervision and control’ OR ‘not free to leave’ ?

In Cheshire West, the Supreme Court said that objective confinement involved both elements of the above test. There’s been a case in which a tribunal saw no need to ask itself whether a person under a community treatment order was free to leave because he was not under continuous supervision and control (in its view) as if both were always required, and this drew judicial criticism.

Perhaps unfortunately, the Law Commission identified either ‘continuous supervision and control’ and ‘not free to leave’ as indicators of one’s being subject to “restrictive care and treatment”, for the purposes of its original proposed new scheme. This proposal, which was dropped in the commission’s revised plans published in May 2016, was designed to go wider than mere deprivation of liberty, because of concerns about people having their Article 8 rights (to private and family life) restricted, not just their Article 5 rights.

Also, the notion of getting ‘out and about’ a reasonable amount within a care package, during daytime hours, was previously thought to reduce the state of ‘deprivation’ into something that was mere restriction, so there is widespread confusion at the front line. Since this is hard enough for the professional sector to understand, what hope a person with less than full capacity can have is beyond me! But it’s necessary to focus on this because staff need to understand what they need to convey to people being asked for their consent, and thus obviate the need for legal proceedings.

I think that ‘the acid test’ is fundamentally about being free to leave permanently, either because you want to, or because a real live someone else in your life (not just anyone in theory, and not every single person in your life) would be facilitated to take you if you appeared at least willing to go. A good practical test of this, to my mind, is to ask ‘would a provider expect to be savaged by the purchaser, if they let the person go, in those circumstances?’.

If, despite being under continuous supervision and control, you can still leave for good, you are not therefore deprived of your liberty. This was so in the case of ‘Ben’ in Bournemouth v PS and DS [2015] case, and is true for people in voluntary wards who can (if they have capacity) ask to leave whenever they want. But if a person would then in practice be sectioned, it is a legal nonsense and a lie to suggest that they are free to leave.

In almost all cases, if you are not free to leave, in the above sense, you will be deprived of your liberty. I can personally see no circumstances when you would not be deprived of your liberty if you were not free to leave, in the above sense.

But Baroness Hale in Cheshire West said it was possible; and Mr Justice Bodey said it was possible in W City Council v Mrs L, which concerned a lady in benign home care arrangements in her own home (Mrs L); and in a situation such as R (Ferreira) v HM Senior Coroner for Inner South London, where a person was found not to have been deprived of her liberty when receiving treatment in an intensive care unit, her removal would not have been realistically contemplated.

So not being free to leave is a necessity but not necessarily a sufficient condition for objective confinement. I think that the reference to an additional element was compelled because even in the absence of any other apparent lock or mechanism or constraint, one might be under such continuous supervision and control that one is ‘effectively’ not free to leave.

But one could be under that sort of supervision and yet be free to leave. I can see plenty of situations where you could be free to leave, and not deprived, even though you are under continuous supervision and control: very chaotic or disinhibited or aggressive people in care homes whose willing relatives would be free to remove them, for instance.

I can also see that you could be under seemingly less than continuous supervision and control but still not free to leave, and you would be deprived of your liberty. The case law and the Law Society’s deprivation of liberty guidance suggests that regulated unescorted free time, where the person’s whereabouts and activities are still known about, still constitutes continuous supervision and control.

So the acid test does involve both elements, but in a nuanced sense, for which legal literacy is required. Not being free to leave permanently is a necessity and in all but exceptional cases, a sufficient condition of being deprived, but being under continuous supervision and control is not a sufficient condition on its own. It is a necessity as well, if the question whether one is free to leave is not really clear.

Short-term deprivations of liberty

Why aren’t we using section 4B of the Mental Capacity Act 2005 (which allows for deprivation of liberty for life-sustaining treatment or the doing of “vital acts”) more often?

This amendment to the MCA permitted deprivation of liberty for what is implicitly a short time but it is often overlooked by those whose worries about longer term consequences stop them from doing proper safeguarding. The section allows temporary lawful justification for deprivation of liberty of a person P, in any setting, if and only if some factual conditions exist and have been processed in the minds of those responsible.

It is the solution to the status of people in intensive care units, for instance, because it does not say how long one has before one must take steps to get the matter to the Court of Protection. Whether that is in fact good enough for ECHR law is beyond the scope of this discussion but the real value of section 4B is that it provides lawful authority for the doing of a vital act, and that is not limited to the medical well-being of the incapacitated person.

In a decided case, A County Council v MB [2010] EWHC 2085, the court said that supervisory bodies and managing authorities should take steps (i) to bring the statutory provisions relating to applications to the court to the notice of their decision-makers, and (ii) to ensure that they are aware that pending a court decision they can either:

1. rely on section 4B of the MCA, and that to do so they should expressly address the test set out therein and record their reasoning as to why they believe it is satisfied, or (the emphasis on it being an ‘or’, not an ‘and’ is mine, here)
2. seek an interim order from the court to authorise a continuation of an existing detention.

An application to the court can be made and dealt with as a matter of urgency and supervisory bodies and managing authorities should take steps to ensure that their decision-makers know, or have easy access to the current methods to contact (i) the Court of Protection and the deprivation of liberty team at the court and (ii) the Family Division of the High Court to make an urgent application to the applications judge during court hours and the duty judge out of court hours.

Implications for practice

What are the implications for care management and safeguarding of recent developments in areas including deprivation of liberty of young people or people in their own homes?

In AJ  [2015] EWCOP 5, Mr Justice Baker said that council staff’s essential obligations are as follows (with my additional comments in italics):

1. To recognise when apparently beneficent steps will lead to a deprivation of liberty. That means understanding Cheshire West and how to apply it.
2. To be honest about what exactly those steps will be. That means putting the measures agreed to be necessary down in the care plan, and commissioning them explicitly, which is why outcomes-based specifications or contracts, without reference to inputs as well, can easily undermine the clients’ rights.
3. To recognise the continuing and positive obligation imposed upon local authorities to ensure that those subject to standard DoLS authorisations are afforded an effective right to challenge their detention before the Court of Protection. That means making the applications to the courts that are required by legal principle.

This is the second in a series of three linked articles on the law relating to deprivation of liberty. The first article covered deprivations of liberty outside the DoLS framework.

Belinda Schwehr, Care and Health Law 
Tel: 01252 725890
Email: belinda@careandhealthlaw.com
Website: www.SchwehrOnCARE.co.uk