Government issues deprivation of liberty definition in bid to provide clarity to practitioners

Ministers’ amendment to DoLS replacement bill sets out when a person would not be deprived of liberty, but sparks concerns over compatibility with human rights law

Mental Capacity Act
Photo: Gary Brigden

By Luke Haynes and Mithran Samuel 

The government has issued a statutory ‘definition’ of a deprivation of liberty in a bid to provide practitioners with clarity when applying the law.

However, the definition, which is expressed negatively, setting out when a person would not be deprived of their liberty, has sparked concern over whether it is compatible with human rights law.

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The definition is set out in one of a number of government amendments to the Mental Capacity (Amendment) Bill, which would replace the Deprivation of Liberty Safeguards (DoLS) with a new system for authorising deprivations of liberty in care, the Liberty Protection Safeguards.

The amendments are due to be discussed at the bill’s committee stage in the House of Commons, which begins next Tuesday (15 January) and will involve line-by-line scrutiny of the legislation by a group of MPs.

Deprivation of liberty legal background

The right to liberty, and the consequent need for safeguards against deprivation of liberty, is enshrined in article 5 of the European Convention on Human Rights (ECHR).

This does not provide a definition of a deprivation of liberty, which has been set out in the case law of the European Court of Human Rights (ECtHR) and the domestic courts.

The Supreme Court’s Cheshire West judgment in 2014 widened the definition of what had constituted a deprivation of liberty in domestic law, stating that it concerned situations where a person was subject to continuous supervision and control and not free to leave their place of confinement.

Cheshire West led to a huge increase in the number of DoLS cases and applications to the Court of Protection to authorise deprivations of liberty in settings not covered by DoLS. As of 31 March 2018, there was a backlog of 125,630 uncompleted DoLS applications.

Though Cheshire West was based on ECtHR case law, it has sparked concerns among some commentators that it cast the net of deprivation of liberty too wide, subjecting too many individuals families to the intrusion of DoLS or a Court of Protection application, while also leaving many unlawfully deprived of liberty because of the backlog. This was the view of parliament’s joint committee on human rights in a report last June.

Others have argued that a statutory definition is required to provide clarity for practitioners, including social workers, in interpreting the law.

What deprivation of liberty definition says

During the bill’s passage through the House of Lords, peers had asked ministers to enact a statutory definition of a deprivation of liberty, to provide greater clarity to practitioners applying the act.

The government had originally raised concerns that any such definition would not be fully in line with article 5 of the European Convention on Human Rights (ECHR), meaning the LPS would not cover some deprivations of liberty, which would then have to be authorised by the Court of Protection. However, ministers then agreed to provide definition.

It states that a deprivation of liberty has the same meaning as article 5(1) of the ECHR and, accordingly, a person is not deprived of liberty in a particular place if they are:

  • free to leave that place permanently;
  • not subject to continuous supervision and free to leave the place temporarily (even if subject to supervision while outside that place)

The proposed definition states that a person is free to leave a place even if you are unable to do so, provided that if the person expressed a wish to leave they would be enabled to do so.

In addition, it states that a person is not deprived of liberty if the arrangements alleged to give rise to the deprivation of liberty are put in place in order to give medical treatment for a physical illness or injury, and the same (or materially the same) arrangements would be put in place for any person receiving that treatment.

This provision is designed to take account of the Court of Appeal’s judgment in R (Ferreira) v HM Senior Coroner for Inner London and Others [2017], which stated that a person was not deprived of liberty for the purposes of article 5 because she was receiving treatment for a physical illness that to all intents would have been administered to a person without a mental impairment.

Concerns over compatibility with existing law

The definition has been met with some concern among Mental Capacity Act (MCA) commentators on Twitter.

Dr Lucy Series, lecturer in the school of law and politics at Cardiff University, said she was concerned that it was not compatible with European Court of Human Rights or domestic case law.

She also raised questions about what would happen if the courts disagreed with Parliament’s definition.

Increased opportunity for review

Other government amendments would increase the role given to approved mental capacity professionals (AMCPs) under the LPS.

AMCPs will be social workers or health professionals with specialist training in the MCA whose role will be to provide an independent check, known as a pre-authorisation review, on whether the conditions for a deprivation of liberty under LPS have been met, but not in every case.

It was originally intended that AMCPs would only carry out the pre-authorisation review – which would otherwise be conducted by a practitioner who need not have specialist training – if it was reasonable to believe that the person was objecting to their care arrangements.

But, as it promised in the House of Lords, the government has brought forward an amendment to require cases where the person was receiving care mainly in an independent hospital to be reviewed by an AMCP. This is to address concerns that such hospitals would face a conflict of interest because they had an incentive to keep people as inpatients to retain their income.

A further government amendment gives the responsible body – the local authority, hospital, clinical commissioning group or Welsh health board tasked with authorising the relevant deprivation of liberty – the power to refer any other case to an AMCP if the cared for person agrees to the referral.

Rights to information altered

The government also wants to amend a change made against its will by the House of Lords in relation to a person’s right to information on the LPS process and their entitlement to challenge an authorisation.

As the bill stands, prior to the authorisation process, the cared-for person, and any appropriate person or independent mental capacity advocate (IMCA) supporting them, would have to be fully informed of the reason why the cared-for person may be deprived of their liberty and their rights to advocacy, to request a review by an AMCP and to challenge any authorisation in court.

However, the government’s amendment would change this section of the bill so that the cared for person, and any IMCA or appropriate person, receives information on the process and their rights as soon as practicable after an authorisation is given, rather than before the process begins.

The government amendment would also remove a clause inserted by the Lords to require the responsible body to refer appropriate cases to court.

What happens next?

The committee stage is due to run from 15 to 24 January and will consider amendments from the government and opposition. The government has a majority of one on the committee, meaning that it should be able to get its amendments through.

After that the bill will return to the full House of Commons for its report stage and third reading, after which any changes made by MPs will need to be considered by the House of Lords, so that a final version of the bill can be agreed between the two houses.

Community Care understands that the government wants this to be accomplished by the end of March.

The committee is still taking written evidence from people outside of Parliament in relation to the bill. To have your say email scrutiny@parliament.uk

2 Responses to Government issues deprivation of liberty definition in bid to provide clarity to practitioners

  1. Roger Hargreaves January 11, 2019 at 3:43 pm #

    The issue about the “clarification” of the meaning of deprivation of liberty is not just whether it’s compatible with Article 5, but whether it will in fact clarify things for the practitioners on the ground who have to make decisions about it day-by-day, and the initial reaction on social media of Best-Interests Assessors (BIAs) is that it won’t – it will just introduce new sources of ambiguity and confusion.

  2. Terry McClatchey January 13, 2019 at 7:26 pm #

    As I read it, the Government’s draft does not attempt to make any significant change to the Cheshire West definition which is itself just a reversion to that of the ECtHR from the original HL/Bournewood case. The only real area they appear to be taking out is in relation to intensive physical inputs such as for persistent vegetative states and high tech medicine that requires people to be connected to complex equipment. If (?) that’s all it means, it won’t have much effect for most cases that affect people with dementia and learning disabilities or similar conditions. At earlier stages there were suggestions that they might try to have a different definition for domestic settings or might try to define in “implied consent” for people without capacity to give informed consent. These suggestions seem to have been dropped but they could come back in the Commons committee stage. If they do stay with the Bournewood/CW definition; that leaves the previous Government impact assessment a long way off on the resources required to operate legally and eliminate the backlog.

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