Parliament should legislate for a statutory definition of deprivation of liberty to limit the number of people whose restrictive care arrangements require legal authorisation because they lack capacity to consent, an influential committee of MPs and peers have said.
In a report on reforming the Deprivation of Liberty Safeguards, Parliament’s joint committee on human rights said the scope of the Supreme Court’s interpretation of a deprivation of liberty, as laid down in the 2014 Cheshire West judgment, should be limited to save families from unnecessary intrusion and relieve pressures on council resources.
What did the Supreme Court decide?
In the Cheshire West judgment in March 2014, the Supreme Court laid down criteria for deciding whether a person’s care, treatment or living arrangements constitute a deprivation of liberty for the purposes of article 5 of the European Convention of Human Rights (ECHR).
These were as follows:
- That the person was under continuous supervision and control and not free to leave their place of confinement (this is often referred to as the ‘acid test’);
- That the person has not given valid consent (which includes lacking capacity to consent);
- That the person’s confinement is attributable to the state (which does not just include cases where a state body has made or arranged the care placement in question but also cases where the state has or ought to have knowledge of the person’s confinement).
Prior to Cheshire West, a deprivation of liberty was interpreted more narrowly in English and Welsh law, excluding people whose care arrangements were “relatively normal” given their level of disability. The judgment resulted in a substantial increase in the number of DoLS applications made to local authorities and has resulted in a situation in which most applications are not completed within the statutory timescale and thousands of people are left deprived of their liberty without legal authorisation.
The recommendation is made in the context of the government having accepted, in principle, the Law Commission’s proposals to replace the Deprivation of Liberty Safeguards (DoLS) with the Liberty Protection Safeguards (LPS). Like the DoLS, the LPS would provide a way of authorising a deprivation of liberty for the purposes of article 5 of the ECHR without recourse to court.
Extension to domestic settings
However, unlike the DoLS, which only cover care homes and hospitals, the LPS would also cover domestic settings, Shared Lives arrangements and supported living. Currently, deprivations of liberty in these settings must be authorised by a Court of Protection welfare order, but the committee pointed out that this often did not happen because applications were seen as onerous and inappropriate. But were the LPS to come into force, deprivations of liberty in these settings would routinely need to be authorised, though the scheme allows for authorisations to be made in a lighter-touch way in cases where there is no dispute about the person’s care arrangements.
Though the committee supported the application of the LPS to domestic settings, it raised concerns about the resource implications for local authorities and the intrusion on family life that would result in cases where a person was living happily at home.
This explained its support for a statutory definition of a deprivation of liberty that would limit the scheme’s applicability in these settings. The committee did not propose a definition itself but suggested one option would be extending the scope of ‘valid consent’, which currently excludes anyone who lacks capacity to consent to their arrangements, meaning they require legal authorisation for their confinement. It suggested that this could be extended to cover people who may be able to express a form of consent to their arrangements while lacking formal capacity to do so, meaning there would be no need for authorisation in such cases.
Evidence for change
During its inquiry into reforming DoLS, the committee heard from long-term carer Graham Enderby, and Mark Neary, whose son Steven was unlawfully detained in a unit by Hillingdon Council in 2010 almost a year. Both felt the current scope of a deprivation of liberty was too wide.
Enderby said: “[w]e have gone so overboard after this judgment, it is ridiculous […] People living in their homes have often consented to be in their own homes […] They already have a care package that suits them. Just because their memory or capacity goes, they are automatically deprived of their liberty now.”
He said that, under the current system, assessors “do not look at the individual, how they communicate or how they express any form of consent or contentment.”
The committee concluded: “In our view, Parliament should set out a statutory definition of deprivation of liberty which clarifies the application of the Supreme Court’s acid test and brings clarity for frontline professionals. In doing so, Parliament will be mindful of the fact that any definition must comply with Article 5. The courts will be under a duty to interpret the statutory provision compatibly with Convention rights. We…consider that it is possible to legislate for a Convention-compliant definition that would produce greater clarity and would extend safeguards only to those who truly need them, whilst respecting the right to personal autonomy of those who are clearly content with their situation, even if they are not capable of verbalising such consent.”
Get up to speed with the law on deprivation of liberty in the community
Do you know when you need to make an application to the Court of Protection to authorise a deprivation of liberty in a setting not covered by DoLS? Get up to speed by reserving your place on Alex Ruck Keene’s session on this topic at Community Care Live London, on 25 September.
As well as being a leading Court of Protection barrister, Alex is one of the foremost authorities on the Mental Capacity Act and was a consultant to the Law Commission’s project on reforming the law on deprivation of liberty, which reported in 2017 and proposed the establishment of the LPS.
Unlike in previous years, you can reserve your place on our eight legal sessions at Community Care Live London – there is a fee of £29 plus VAT (or £24 plus VAT if booked before 27 July).