Government deprivation of liberty definition in DoLS replacement bill rejected by Lords in favour of ‘clearer’ version

Alternative definition of what constitutes a deprivation of liberty agreed by peers, but government likely to try overturning amendment when bill returns to Commons

Houses of Parliament
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By Luke Haynes and Mithran Samuel

The government’s proposed ‘definition’ of a deprivation of liberty has been rejected by the House of Lords, which this week inserted an alternative description into legislation to replace the Deprivation of Liberty Safeguards (DoLS).

Peers overturned the government definition in the Mental Capacity (Amendment) Bill, and instead backed an amendment tabled by Liberal Democrat peer Baroness Tyler to change the definition. The bill would replace DoLS with a new system – the Liberty Protection Safeguards – for authorising deprivations of liberty in health and social care settings.

While the government definition, which ministers called a ‘statutory clarification’, set out what a deprivation of liberty was not, Tyler’s defined a deprivation of liberty positively. The two ‘definitions’ are listed below:

The House of Lords had previously agreed a version of the bill, and this week’s debate was to consider amendments made since then by the Commons.

All of the other Commons amendments, besides the government definition, were passed, but the Lords also made one further change to the bill; this was to tighten information sharing requirements on those councils and NHS bodies who are ‘responsible bodies’ for authorising deprivations of liberty under the legislation.

The bill will now have to return to the Commons, who must either agree the Lords’ changes, leading to the bill becoming law, or make further changes that would need then to be agreed by peers.

During this week’s debate, the government strongly criticised Tyler’s definition, signalling that it would seek to overturn it in the Commons.

‘Very difficult to understand’

In proposing her amendment, Tyler criticised the government’s decision to provide a ‘negative’ definition, which she said was “very difficult to understand” and failed to allow for a “clear assessment” of whether an individual was being deprived of their liberty.

Tyler said what was needed was a definition that provided “absolute clarity for practitioners” and enabled cared-for people and their families to determine when they were deprived of their liberty and their rights were engaged. She said this was provided by the ‘acid test’ set out in the Supreme Court’s Cheshire West judgment – the leading domestic case in defining a deprivation of liberty – which her amendment was designed to follow.

Do you understand Cheshire West?

Community Care Inform Adults users can refresh their knowledge of Cheshire West by reading our summary of the judgment and accompanying guide to what it means in practice.

However, health minister Baroness Blackwood said Tyler’s amendment was deficient because it was not explicitly based on article 5 of the European Convention on Human Rights (ECHR), the fundamental basis of deprivation of liberty law.

While the government’s proposed definition stated that references to deprivation of liberty in the legislation had the same meaning as article 5, this was not referenced in Tyler’s.

Blackwood said the amendment would create “two divergent concepts” of deprivation of liberty, one set by Parliament and one from the ECHR, which risked creating “confusion and uncertainty” for practitioners.

She added the government’s definition, instead, created a “clear” relationship between Parliament’s definition and the ECHR’s.

Narrow definition

Blackwood added that Tyler’s definition was “narrower” than article 5, meaning those people who fell outside Parliament’s definition, but within the ECHR definition, would have to take their case to the High Court because they would not be covered by the Mental Capacity Act, creating delays.

The strength of Blackwood’s response to Tyler’s amendment suggests the government will seek to reinsert its definition, or something similar to it, when the bill returns to the Commons.

The other change made by peers in this week’s debate was designed to strengthen requirements already in the bill for responsible bodies to provide a record of the deprivation of liberty authorisation to the cared-for person, and any independent mental capacity advocate or appropriate person supporting them, as soon as possible after the authorisation.

The amendment means the responsible body would require responsible bodies to record and justify any decision not to give the authorisation record immediately, and to carry out a review if the information is not supplied within 72 hours of the authorisation. The Commons will also get to vote on this amendment when the bill returns to the other chamber.

7 Responses to Government deprivation of liberty definition in DoLS replacement bill rejected by Lords in favour of ‘clearer’ version

  1. Terry McClatchey February 28, 2019 at 11:46 pm #

    The Government’s approach to the Bill has generally been less than impressive.
    On the specific topic of the definition of DoL however, their proposal is much stronger than the Tyler alternative. The Government proposal makes an explicit link to Article 5 of the ECHR that is omitted by Tyler. Tyler also introduces the concept of “not negligible period of time…” that immediately begs the question as to how “negligibility” should itself be defined. The quality of debate in the Lords has been of a consistently high and non-partisan nature so it is most unfortunate if this aberration needs to be corrected by an uninformed whipped vote in the House of Commons.

    • Andy Nash March 5, 2019 at 11:35 am #

      I have to disagree with the comments by Terry McClatchey above. I have discussed the Government proposed definition with a number of BIA colleagues accoross different Supervisiory Bodies and we unanimously found it confused and confusing.

      In particular the statement that a Person is not deprived of their liberty if they are
      “not subject to continuous supervision and free to leave the place temporarily (even if subject to supervision while outside that place).” Apart from the double negatives and grammatical confusion it seems to fly in the face of case law which would suggest that needing to be supervised outside a placement is a strong indication of continuous control and supervision and is also unrelated to freedom to leave (which is more about the ability to choose permanent change of residence.

      Whilst keeping an explicit link to Article 5 would be helpful, especially with post Brexit uncertainty about the status of Human Rights legislation, the rest of the Tyler proposal seems much clearer and in line with current understanding to me.

  2. Fred Parsons March 1, 2019 at 3:13 pm #

    Bearing in mind that the government wants to move away from the ECHR, what’s their problem with the clearer definition?

    That said, the whole approach by the government has been lacking.

  3. DEL HARRIES March 2, 2019 at 1:47 pm #

    Brexit will not involve / include leaving the ECHR’s jurisdiction.

  4. Terry McClatchey March 2, 2019 at 10:31 pm #

    The Government has no formally declared plans to move away from the European Convention or the jurisdiction of European Court of Human Rights. All the rhetoric about the E.Ct of Justice may however have given some members of the public (and MPs) the impression that ECtHR jurisdiction also ends with Brexit. For that very reason, having the Government’s amendment to MCAB with its explicit like to Article 5 is an important contribution to clarity. The Tyler amendment is far from being clearer in that it opens up the new questions of what is meant by a “negligible period of time” and “permanently removing themselves”. Lady Tyler’s amendment may be well intentioned but the Government is right to say that its wording is a recipe for future confusion and dispute.

    • Andy Nash March 5, 2019 at 5:40 pm #

      Again I respectfully disagree with Terry McClatchey’s comment above.

      The “negligible period of time” and “permanently removing themselves” elements are already incorporated within British and European Case Law rulings on the meaning of Article 5. The Law Society provided a very through practice guide to these elements in their publication – Deprivation of Liberty – a Practice Guide.

      The Government’s definition however doesn’t seem to be compatible with Article 5 or our previous case law or guidance on what a DoL is. Instead it introduces a mind melding new scenario – people who are free to leave temporarily even if they have to be supervised when they do go out. This would presumably mean that MIG and MEG (who were escorted when they went out and whom the whole Acid Test was founded upon) would not be deprived of their liberty under the new proposals. And Mr Stanev who the European Courts ruled was deprived of their liberty even though he went out unescorted to a local village would be well outside of this definition.

      The Tyler definition doesn’t mention Article 5 but is entirely compatible with it. The Governments definition claims to mean the same thing as Article 5 and then goes on to entirely depart from it.

      I think that the best compromise would be to add a reference to Article 5 in the Tyler proposal or just stick with Article 5 without further confusion.

      The government’s definition seems to be intent on excluding a group of people who can’t go out without seeking permission and being supervised. This might be a sneaky way to reduce numbers but it isn’t Article 5 compatible and will end up leading to years of further legal wrangling and practical confusion.

      I had hoped the government’s definition would take the opportunity to make things clearer. They have managed in a few short sentences to do the opposite. It would have been better if they had left it well alone.

      I’ll resist making similar comments about the entire LPS schema.

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