Is Britain’s Deprivation of Liberty Safeguards regime, intended to protect people receiving state care in care homes, hospitals and supported living schemes, turning into an expensive legalistic shambles as a result of a controversial human rights case in the UK Supreme Court? The case, Cheshire West ( UKSC 19 ), was intended to deal with a very real problem: that local authority packages of care for people who lack mental capacity may constitute a breach of Article 5 of the European Convention on Human Rights (right to liberty) – even though they are put in place in the interests of the disabled person and even if they are living in a family home. But a couple of bizarre recent cases in the lower courts suggest there is a real problem.
Critics of the Supreme Court position on Deprivation of Liberty Safeguards (DoLS) talk of “gilded cages” and argue that human rights should not intervene too rigidly in the discretion of social workers acting in the best interests of clients lacking capacity. Nevertheless, to have no protections in place or to deny them to people without capacity would clearly be wrong and specifically a breach of Article 5 and Article 14 (“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination”.) The Supreme Court came up with a new definition of deprivation of liberty:
“The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements.”
Compliance or even agreement by the person involved did not prevent the arrangements being a deprivation of liberty. It followsed from this that social services staff had to put care plans under more intense review and particularly that social services departments could not authorise their own social workers’ schemes when they involve domestic supported living arrangments or complex cases – which require the sanction of the Court of Protection. (Note on the judgment here) Once a court has found deprivation of liberty, a regime of expensive legal safeguards must be put in place with oversight by the courts. This is the real issue of controversy as far as local authorities are concerned.
Cheshire West drew on Austin v United Kingdom (2012) 55 EHRR 14, which said at para 58 that the fact that “the object is to protect treat or care in some way for the person taken into confinement” has “no bearing on the question whether that person has been deprived of his liberty, although it might be relevant to the subsequent inquiry whether the deprivation of liberty was justified.”
The problem with the post-Cheshire West regime is that it more or less requires local authorities to take themselves to court just to make sure they are not breaching the law – even when there has been no complaint about the individual’s loss of liberty. And this has given rise to some rather bizarre procedural issues as lower courts try to make sense of it all. His Honour Judge Mostyn has been at the forefront of judicial criticism and this month declared:
“In the light of the decision of the Supreme Court local authorities have to err on the side of caution and bring every case, however borderline, before the court. For if they do not, and a case is later found to be one of deprivation of liberty, there may be heavy damages claims (and lawyers’ costs) to pay. I remain of the view that the matter needs to be urgently reconsidered by the Supreme Court.” (Bournemouth Borough Council v PS & DS  EWCOP 39 at 40)
And in a new case, the Court of Appeal has declared that a streamlined procedure put in place by the Court of Protection to cope with DoLS cases post-Cheshire West must not exclude people who lack capacity from participating in or having legal representation at DoLS hearings (Re X (Court of Protection Practice  EWCA Civ 599). But much of this case was bogged down with procedural arguments about whether the Court of Appeal actually had jurisdiction to hear it at all or should, by “fancy footwork”, give itself the power to hear it by turning it into a judicial review. Ultimately it decided there was no (legally defined) “decision” from the President of the Court of Protection that could be appealed. Black LJ declared: “I am prepared to set out what I would have decided, had this court had jurisdiction … I do not, however, feel able to go further.” So where does that leave us? Who knows? But local authorities would probably be wise to ensure there is legal representation for the individual concerned in DoLS hearings – adding further to costs.
But this is not, perhaps the most unusual set of procedural circumstances thrown up by the vexed questions flowing from Cheshire West. Let us return to Mr Justice Mostyn. In last year’s Rochdale v KW ( EWCOP 45) he considered the case of Katherine, aged 52. She was barely ambulatory and suffered delusions, specifically that it was 1996 and she was at home with her young children – who are now adults. Rochdale had made arrangements for her care in her home. Mostyn J noted:
“If it [the care] does amount to a deprivation of liberty then my order will have to provide for periodic reviews by this court. Such reviews plainly have significant resource implications for this hard pressed local authority. Every pound spent on such reviews is a pound less for other vitally necessary projects.”
Mostyn’s view was that “[Katherine] is not in any realistic way being constrained from exercising the freedom to leave, in the required sense, for the essential reason that she does not have the physical or mental ability to exercise that freedom.” In effect he suggested the arrangements for Katherine were those that the family might well have agreed to and paid for privately without any Article 5 risk (since, broadly, the ECHR applies primarily to the state and its offshoots):
“I am of the view that for the plenitude of cases such as this, where a person, often elderly, who is both physically and mentally disabled to a severe extent, is being looked after in her own home, and where the arrangements happen to be made, and paid for, by a local authority, rather than by the person’s own family and paid for from her own funds, or from funds provided by members of her family, Article 5 is simply not engaged.”
This was wholly in defiance of the Supreme Court – and was meant to be (albeit Mostyn distinguished Katherine’s case from those considered in Cheshire West). He urged his judgment be appealed and hoped to leapfrog the case straight to the Supreme Court to allow it to reconsider the whole matter and presumably rethink Cheshire West. It was not to be, so an appeal by Katherine’s solicitor went to the Court of Appeal instead. But days before the case was scheduled, the Court of Appeal revealed that since the appeal was (by now) unopposed by Rochdale it would allow it unheard. (Details here: Rochdale v KW et al Bailii:  EWCOP 13)
So we have a situation where a lowly (though estimable) Court of Protection judge disagrees with the highest court in the land and hopes the case will make its way to the Supreme Court, which can have a go at getting the principles right this time. Instead it comes to a halt at the Court of Appeal which simply allows the appeal against his judgment but cannot give us its analysis of the case, tell us how Mostyn might be wrong. Instead it simply says: “to the extent that the restrictions in place pursuant to the care plan are a deprivation of KW’s liberty, such deprivation of KW’s liberty is hereby authorised”.
So it may be deprivation of liberty; or it may not. We don’t know. Mostyn himself considered the Court of Appeal’s non-judgment invalid, “procedurally impermissible”, hence ultra vires without the arguments to go with it that might aid the lower courts as to what a deprivation of liberty is in DoLS cases. But he had to comply with it and call for another hearing to establish de novo whether Katherine was “being detained by the state within the terms of Article 5”. Exasperated, he added: “In this difficult and sensitive area, where people are being looked after in their own homes at the state’s expense, the law is now in a state of serious confusion.”
Mostyn is not wrong to be critical of the Supreme Court judgment (led, as it was by Lady Hale, who was involved in drafting the Mental Capacity Act which instituted DoLS). The judgment created a bureaucratic monster that in effect involves local authority social services departments taking their care plans to the Court of Protection even if they don’t feel there is deprivation of liberty; and almost inevitably being told there is such a deprivation under the Cheshire West definition. This then means the care package must come under the regular scrutiny of the courts – with all the bureaucratic and legal costs that that implies.
It is difficult to know how this can be resolved. Mostyn tried to get the matter raised again at the Supreme Court but Rochdale council resisted the leapfrogging and then caved in before the Court of Appeal case, even though the only judgment in the case – Mostyn’s – was in its favour. One assumes, given the costs that would be involved in a Supreme Court case, the council didn’t want to be the guinea pig to get Cheshire West reversed – not least because in all likelihood it wouldn’t have been reversed at all and Rochdale would be further out of pocket.
Lady Hale’s judgment (supported by the President of the Supreme Court, Lord Neuberger) was strictly “correct” given the puzzle she had to solve: ensuring those without mental capacity nevertheless have access to the right to liberty set out in the European Convention. But is was something of an academic exercise that failed to take account of the practicalities of bringing care to the most vulnerable. No one should think that there isn’t an issue or that “best interests” analysis is sufficient. The principle of instituting care that has least impact on liberty is a good one. But this system is simply not working.
Note: The Court of Appeal has now (October 2015) looked at Mostyn’s complaint that it acted ultra vires and rejected it. Lord Dyson MR had this to say about Mostyn:
“The judge’s analysis was, and could be, of no legal effect. It was irrelevant. Indeed, he had purported to apply Cheshire West to the facts of the case. The basis of the appeal was that he had failed to do so properly. The public interest in the first judgment had focused on his criticisms of the Cheshire West case. The lower court’s decision in the present case should have caused no difficulty for practitioners or judges in the field. It was a decision on the facts which, with benefit of the advice of counsel and solicitors, the parties agreed was wrong. The Court of Appeal had to have taken the view that the parties had advanced plausible reasons for contending that the judge’s decision was wrong, so that there were good and sufficient reasons for allowing the appeal without deciding the merits. In their Lordships’ view, it had clearly been right to do so.
“Unfortunately the judge had twice made decisions appealed to the Court of Appeal. On both occasions, the parties had agreed that the appeal had to be allowed, leading to considerable unnecessary costs to the public purse and unnecessary use of court time. Regrettably the judge’s tenacious adherence to his jurisprudential analysis leading to his conclusion that Cheshire West had been wrongly decided was at the root of it. Contrary to the judge’s view, even if Cheshire West were wrong, there was nothing confusing about it. In the light of the unfortunate history, the review was to be conducted by a different judge.” (Rochdale MBC v KW (2015) EWCA Civ 1054)
Mostyn’s KW v Rochdale decision is critiqued here by barrister Alex Ruck Keene of 39 Essex Chambers. Mostyn himself replied to this in Bournemouth.
• Gordon Exall gathers some of the materials in the Rochdale case in his Civil Litigation blog here.
• Obiter J looks at some of the cases here: Law and Lawyers
… and other DoLS matters in a new post here
• The distinction between “deprivation” and “restriction” of liberty in ECHR law is looked at in the context of police kettling in demonstrations here (Al’s Law)
• A House of Lords Select Committee Report pdf looked at DoLS in 2014
• Contrasting views on the Hale judgment were published by New Law Journal: In favour by Ian Wise QC & Martha Spurrier;
and against by Jon Holbrook
• The Law Commission is examining the whole DoLS set-up and intends to publish a draft bill in 2016
• Chloe Smith of Martin Searle Solicitors looks at the Law Commission work here
• A speech by Lady Hale to the Court of Protection on DoLS is here (pdf)
W City Council v Mrs L  EWCOP 20
Here the council brought the case following measures by the family of Mrs L to restrain her, within her own home, (by locks and alerts on a garden gate) for her own protection. The council asked the court to declare a deprivation of liberty:
As to the question of imputing to the State any deprivation of liberty which the court finds exists, Miss Hirst’s [Couincil barrister] submission is that such imputation is made out. She points out that through Local Authorities the State has statutory duties and duties of care in respect of incapacitated persons like Mrs L. It exercises those duties through social workers and carers, who in this case are working with the family; but if the family were not willing to work with those carers, then the Local Authority, on behalf of the State, would have duties to make other arrangements. So these arrangements should be imputed to the State. Miss Hirst urges me to be slow to say otherwise, because then Mrs L would lose the important protection of Article 5.
The council’s case was rejected, Mr Justice Bodey saying: “In these circumstances, my decision is simply that there is no deprivation of Mrs L’s liberty. This is not per se because Mrs L is in her own home; nor because she wishes to be there. Those features alone would not necessarily stop particular arrangements amounting to a deprivation of liberty. Rather it is a finely balanced decision taken on all the facts of the particular case. The question of the court’s authorising the arrangements concerned does not in the circumstances arise, although I would have authorised them if it did.
Price v UK  ECHR 458
R (L) v Bournewood Community and Mental Health NHS Trust  UKHL 24
HL v United Kingdom  ECHR 471
P (by Official Solicitor) v Cheshire West and Chester Council  UKSC 19
(On appeal from:  EWCA Civ 1257)
Tower Hamlets v TB  EWCOP 53
Rochdale MBC v KW et al  EWCOP 45
Re X (Court of Protection Practice)  EWCA Civ 599
Bournemouth Borough Council v PS & DS  EWCOP 39
On allowing appeals without a hearing
Practice Directions CPR PD52A para 6.4
“The appeal court will not normally make an order allowing an appeal unless satisfied that the decision of the lower court was wrong or unjust because of a serious procedural or other irregularity. The appeal court may, however, set aside or vary the order of the lower court by consent and without determining the merits of the appeal if it is satisfied that there are good and sufficient reasons for so doing. Where the appeal court is requested by all parties to allow an application or an appeal the court may consider the request on the papers. The request should set out the relevant history of the proceedings and the matters relied on as justifying the order and be accompanied by a draft order.”
Mostyn’s objection to using this to allow an appeal without a hearing was that the Court of Appeal could not do so on the merits of a case: “It is impossible to see … how this procedure could be used to overthrow on the merits the central basis of a first instance decision particularly where that involved a clear statement [ie by Mostyn] of legal principle in relation to the facts as found.” He adds: “The judge whose decision is being impugned is surely entitled to no less, and there is a plain need to expose error so that later legal confusion does not arise.”
What might constitute deprivation of liberty?
- a patient being restrained in order to admit them to hospital
- medication being given against a person’s will
- staff having complete control over a patient’s care or movements for a long period
- staff making all decisions about a patient, including choices about assessments, treatment and visitors
- staff deciding whether a patient can be released into the care of others or to live elsewhere
- staff refusing to discharge a person into the care of others
- staff restricting a person’s access to their friends or family.