What is a Deprivation of Liberty? – Thoughts on Cheshire West and Chester Council v P

I accept that this post is about something of a niche in the corner of health and social care but it’s an area I have some interest in as I’m a Best Interests Assessor. This is going to be a long haul of a post so I’ll start this time with a glossary.

Deprivation of Liberty Safeguards – particular additions to the Mental Capacity Act which were supposed to fix a ‘gap’ (known as the Bournewood Gap – see below) in UK legislation where people without capacity could be ‘deprived of their liberty’ in a hospital or care home without leave to appeal.

Bournewood Gap – while it sounds like the name of a service station, it resulted from the HL v Bournewood case which was taken to the European Court of Human Rights and determined at a man (HL) with learning disabilities had been detained unlawfully in Bournewood Hospital. This case meant the UK needed to change its law to be compatible with the Human Rights Act.

Mental Capacity Act – broad legislation introduced in 2005 which included (on amendment of the 2007 Mental Health Act) these Deprivation of Liberty Safeguards

Best Interest Assessor – one of the minimum of two people involved in assessing whether a deprivation of liberty should be authorised or not. Usually a social worker, nurse or  occupational therapist – could also be a clinical psychologist (unusual). They will assess both whether there is a deprivation of liberty and whether it is in the person’s best interest.

Mental Health Assessor – the other person who would be involved in assessing whether a deprivation of liberty should be authorised. They will be a specially trained doctor. They assess, well, the Mental Health.

So back to the start again and ‘What is a deprivation of liberty?’ in this context? Considering I’m a Best Interests Assessor and one of my roles is to actually assess whether a deprivation of liberty is taking place or not, you’d think that I would have a great answer to add to my ‘summing up’ glossary above.

You’d be wrong. The definition of ‘deprivation of liberty’ is fuzzy and continues to get fuzzier.

This week, you see, an important ruling was made – although I’ve found no coverage of it except in Community Care.

In Cheshire West and Chester Council v P the noose has tightened a little bit further on the protections that were offered by the deprivation of liberty safeguards as the definition of what is a ‘deprivation of liberty’ has tightened.

There are certain guidelines that we follow when we determine what is a ‘deprivation of ilberty’ but when the safeguards were introduced, we were often told to look at ‘caselaw’ as it develops. Case law has an interesting way of turning up surprises and what is has done, in the Cheshire case, is make a claim that someone who to all intents and purposes is under ‘complete and effective’ control by members of staff in a residential home is not deprived of his liberty because it is ‘normal’ for him to treated and regarded as such.

Mental Health Law Online – a fantastic resource – explains

P was a 39 year old man with learning disabilities and autism, who lacked capacity to make decisions about his accommodation and care. In April 2011 a judge held that he was deprived of his liberty in his local authority placement at Z House, as staff had complete and effective control of his life, sometimes using a “body suit” zipped at the back to prevent him getting to his continence pads, which he had a habit of eating.

The Court of Appeal says, in essence, that this care was required as a result of his condition, was “normal” for people like him, and therefore no deprivation.

The ‘complete and effective’ control part is relevant as those are the terms used in the legislation but the judge determined a scale of ‘normality’ that is conditional on the needs of P – the person in this case.

I’m not a judge but I don’t see it that way. For me, the safeguards are there exactly to protect people like P from authoritarian care. Yes, in this case. P is being managed in the best way possible for him and he is receiving good levels of care, has access to his family and is being cared for appropriately but from my ‘layperson’ eye, I don’t understand why those facts are conditional on whether it is deprivation of liberty or not.

When I go and conduct a Best Interests Assessment, I look at two elements of the case. Firstly, is there a Deprivation of Liberty – and secondly, if there is, is it in the person’s best interests to be subject to the care regime which is depriving them of their liberty. These two elements are connected but they are also separate.

What I find hard to understand about the Cheshire case is that these two elements seem to have been combined so that if it is in P’s best interest and he is receiving good care, then he isn’t being deprived of his liberty.

Why is this so important? Because away from P and Cheshire, there are many many people who do need these safeguards. They are safeguards. Contrary to what some politicians might claim, when they are used correctly, they ensure the rights of those people who lack capacity and who don’t have the options available to them to be kept in any other way and it is a further layer of protection given to them.

I think of a case I was involved in recently as a Best Interests Assessor when I assessed a woman who was kept in, what I considered to be, very restrictive conditions and although I concluded it was in her best interests, the process allowed her access to an advocate (as she had no family) and it placed the residential care home under considerable pressure with my visits, with the advocate’s visits etc and the amount of improvements that were made were quite staggering. Would that have happened without these safeguards? Possibly if there was an effective regulatory body but there wasn’t and it did.

Being ‘deprived of your liberty’ in these contexts is, in my mind, neutral. It can be necessary when someone has high care needs but it isn’t bad in itself. What is necessary is that the safeguards are in place.

What the Cheshire judgement does, at a stroke of a judge’s pen, is, by setting the barrier for a deprivation of liberty so excessively high and so narrowly in scope, is remove that safeguard from a lot of people who may need it.

So we are back to asking ourselves ‘What is a Deprivation of Liberty?’ and is it different for someone who needs constant care than it is for an adult who doesn’t? Surely when we start differentiating between the rights we have as human beings between those with significant disabilties and those without we are on dangerous ground. I’m not saying that P, in this case, who clearly has very high needs should not be supervised constantly and given the care that he needs but surely that is the point of the safeguards to allow him to receive that care lawfully. If we say, as the judge in this case is saying, that deprivation of liberty has different meanings on the basis of what is ‘normal’ for a particular person rather than an absolute meaning within the context, we are left to make far more potentially faulty decisions. It feels as if the judiciary have decided they can’t be bothered with this process and want to be done with it through evolving caselaw accordingly.

Honestly, I feel duped. I felt we were a part of a system that was going to be finally protecting the rights of all. Instead we are setting different bars on the level of different disabilities.

I am no great fan of the Deprivation of Liberty Safeguards as they stand. They are full of confusion and holes but I did genuinely believe the purpose of them was to protect people who lacked capacity from potentially abusive or complacent care settings. Unfortunately what I see from these judgements increasingly, is that the purpose of the deprivation of liberty safeguards was not about protecting rights  but to cover the back of the UK in terms of Human Rights legislation.

It makes me sad.