This is the text of an article written by John O’Donnell and published in Solicitors Journal 14/2/12.
At first instance, the Court of Protection, (Baker J.) found that a man whose formidable mental and physical difficulty was being deprived of his liberty by virtue of the extent to which physical intervention was needed for his welfare. The Court of Appeal has now decided that he was not. The leading judgment by Munby LJ is certainly thorough and clever but we query whether it is moving in the right direction.
It is worth reminding ourselves that the MCA DOLS provisions originated as a result of Bournewood. In that case our courts flip flopped all the way up to the House of Lords as to whether or not HL was deprived of his liberty. Fundamental to the reasoning was the common law concept that taking steps which objectively amount to a deprivation of liberty for an individual who lacked capacity was acceptable if it was in their best interests. Our courts have a long record of safeguarding the interests of individuals who might be mistreated by the State. We did, after all, introduce the concept of habeas corpus to the world. Being deprived of one’s liberty was seen as a bad thing but if society confined someone without capacity to object, in their best interests, this was necessarily a good thing and, therefore, lawful. It was not seen in the context of a deprivation of liberty at all.
After the Second World War, Europe was in no mood to trust countries to do good by it’s citizens and, as the rightly accepted bastion of liberty and justice, UK lawyers were asked to draft the European Convention on Human Rights. However, as signatories to the Convention which was subsequently incorporated into domestic legislation through the Human Rights Act 1998, we opened ourselves up to the quite different approach adopted by the European Court to issues of how human rights are safeguarded. The European model, tempered by bitter experience of brutal regimes, is to require procedures to authorise and justify any deprivation of liberty which is to be objectively defined because the citizen could not trust the state to exercise power justly. This has not been our way of thinking. The only procedure we had for depriving an incapacitated individual of liberty was if they needed hospital admission under the Mental Health Act. For others who lacked capacity to make their own decisions there was reliance on a well developed but hard to define sense of justice and fairness to act in their best interests with judicial review available to resolve disagreements.
By Art.5(1) ECHR no one can be deprived of his liberty except for specific reasons of which the relevant one here is being of unsound mind. Art.5(4) provides that everyone who is deprived of his liberty is entitled to take proceedings to challenge the lawfulness of that detention. In Storck v Germany (2005) ECHR 406, the European Court held that the State has a positive obligation to protect the liberty of its citizens and to take measures to provide effective protection of vulnerable persons. As a result of Bournewood the government had to act. Two suitable Bills were available, one amending the existing Mental Health Act and the other which became the Mental Capacity Act. Regrettably, the government chose to introduce extremely complex provisions through the Mental Capacity Act rather than by simple amendments to the Mental Health Act. For example, there was already a Sch.1A in the MCA but when the DOLS were introduced it was unhelpfully put in a schedule called A1. A right of appeal was created in s.21(A) and the court could also authorise a DoL if it was ancillary to a welfare order – s.16(2).
It is vital, therefore, to know whether or not someone is being deprived of their liberty. If they are not, none of the procedural measures need to be taken at all and, since the procedures are complicated and time consuming, there is considerable pressure from public bodies like Cheshire West and Chester Council to find that someone has not been deprived of their liberty. There is no doubt an immense sense of relief on the part of the State that the court found that P was not deprived of his liberty at all. As a consequence it follows that none of the protections afforded by DOLS in the MCA apply.
Those affected will include those suffering cognitive deficits by reason of an injury, degeneration of the brain or organic causes. People suffering from learning difficulty, autism or enduring mental illness could all be caught. They are vulnerable and often, by reason of their disabilities, passive. Some will have articulate, caring families whilst many will be completely without anyone to show an interest. Given the lamentable inability of the Care Quality Commission to protect vulnerable people in care homes, judicial oversight could, literally, be a life saver which may not now be available.
The judgment raises two aspects which are of concern, namely purpose and the use of a comparator.
In P and Q v Surrey CC