Wednesday 19 March 2014

What is deprivation of liberty? The Supreme Court speaks





The Supreme Court has this morning overturned the Court of Appeal in the cases of P (by the Official Solicitor) v Cheshire West and Chester Council, and P & Q (or MIG & MEG)(by the official Solicitor) v Surrey County Council [2014] UKSC 19. In what is the most far-reaching human rights case heard in the UK for a decade, the Supreme Court reversed the Cheshire West decision by 7 Justices to 0, and Surrey decision by 4 to 3.

The cases rested on what is the proper test to be applied to determine where there is a deprivation of liberty when mentally incapacitated people are required to live in a place when they could not (and therefore did not) consent? These places could be hospitals or care homes, but in the three appeals before the Supreme Court they were an independent supported living placement, a unit for learning disabled young people and a foster home. If they are deprived of their liberty, Article 5 of the European Convention is engaged and protections including periodic reviews of their detention are triggered. Their detention must be authorised and reviewed by the Court of Protection. Where the statutory scheme applies, in hospitals and care homes, detained residents fall within the so-called DOLS (deprivation of liberty safeguards), which is an administrative procedure whereby people may be detained without the authority of a Court (albeit with the right of appeal to one).

The Court had to decide whether the “test” to be applied should include factors such as “the relative normality” of the surroundings in which the person is placed (the more “normal” the less it was likely to involve deprivation of liberty); whether the person (or their relatives or carers) objects to the placement (if they do not it is less likely to involve deprivation of liberty); whether a person with comparable disabilities would be expected to live in a less restricted environment (if so, it is more likely to be a deprivation); whether the reason or purpose for the placement is a relevant factor (if the measure is an appropriate way of achieving the best for the person, the less it is likely to amount to a deprivation)? These were factors that the Court of Appeal had suggested were relevant.

The majority of the Supreme Court rejected these factors as part of the test. Lady Hale (with whom Lords Neuberger, Kerr and Sumption agreed) emphasised the universality of human rights:

           
In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorable from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights, rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.

Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focused right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage”.


Consequently, the “relative normality” of the placement, and the reason for the person being placed there were not relevant factors in determining whether the person was deprived of their liberty. The comparator survived, but not in the form envisaged by the Court of Appeal. The comparator was not another person with similar disabilities, but an ordinary person without mental incapacity. Furthermore, the person’s compliance or lack of objection was also not relevant.

Lady Hale then went on to ask whether there is an acid test for deprivation of liberty in these cases? She reviewed the Strasbourg case law and agreed that the classic test Guzzardi v Italy (1980) 3 EHRR 333 is repeated in all the ECtHR cases: i.e. the starting point is the “concrete situation of the individual”, and then one must always “take account of a whole range of criteria such as the type, duration, effects and manner of implementation of the measures in question”. Lady Hale was sure that these would confidently be repeated once again if these cases were to go to Strasbourg.

Then she goes on (at para [48]) (my emphasis)

But these cases are not about the distinction between a restriction on freedom of movement and the deprivation of liberty. P, MIG and MEG are, for perfectly understandable reasons, not free to go anywhere without permission and close supervision. So what are the particular features of their ‘concrete situation’ on which we need to focus”


At [49] she identifies the key factor as being whether the person is under continuous supervision and control and not free to leave.

That is the test.

What is meant by “free to leave”? Lady Hale refers to Munby, J. in JE v DE [2007] 2 FLR 1150 where he had defined “freed to leave” as “not just for the purpose of some trip or outing approved by [the local authority] or those managing the institution: I mean leaving in the sense of removing himself permanently in order to live where and with whom he chooses..

The fact that a placement may have “relatively open conditions” was no more determinative of deprivation of liberty than (for example) open hospital conditions (in e.g. Ashingdane v UK (1985) 7 EHRR 528).

There were 5 judgments in the case. Lord Neuberger and Lord Kerr agreeing with Lady Hale (as did Lord Sumption, although without writing his own judgment). Lord Carnwath and Hodge jointly disagreed with Lady Hale that the test should go as far as she did. They considered that the Strasbourg cases fell short of a universal test of the sort Lady Hale put forward, and that there was insufficient certainty that Strasbourg would have gone as far as she did. They preferred a balancing of the numerous factors outlined in the cases (intensity or restriction, manner of implementation etc). Lord Clarke agreed with Lords Carnwath and Hodge.

Conclusions:

·         This case should be seen as an affirmation of the principles of the Mental Capacity Act.

·         It recognises those who lack capacity as being equal with those who do not. If the concepts of relative normality, Munby L.J.’s comparator, and the significance of an absence of objection had been determining factors in whether Article 5 applied the result would have been to remove those protections from those who need them the most.

·         The test fits in with the ethos of the United Nations Convention on the Rights of Persons with Disabilities.

·         During the hearing the Justices had been concerned that if the test put forward by the Official Solicitor were to be accepted it would lead to large numbers of people coming within the protection of Article 5 (including those who would fall under the DOLS), and this would create bureaucratic difficulties as well as considerable cost. This remains to be seen. But in the week that the House of Lords Select Committee was so scathing of the inadequacy of the protections afforded by the DOLS, it may be that this judgment will ensure that those who have not fallen under the protection of the regime will now do so. It is suggested that this will be a good thing.

·         Another concern was that if the test for deprivation of liberty was as sought by the Official Solicitor, it would mean that a number of people would, in fact, be detained who could not lawfully be so. These include patients subject to guardianship, community treatment orders or conditional discharges under the Mental Health Act. These orders do not without more authorise deprivation of liberty (although they are often used as if they do). In the case of guardianship, the patient is certainly not free to leave in the sense of living where he chooses- that is the prerogative of the guardian. However, he may not be deprived of his liberty if there is an absence of continuous supervision and control. For instance, many guardianship patients are free to spend their days doing what they like, where they like- but have to reside at a particular address. They are not free to leave so that they can live somewhere else, but they are not subject to continuous supervision.  It remains to be seen whether the Supreme Court’s test creates a conflict between the two regimes.

·         Finally, the test will hopefully bring clarity to an area that had become almost impossibly difficult to predict. Lets hope the BIAS, clinicians, social workers, IMCAs, legal advisers and Judges, as well as the people concerned and their families will find it easier to identify a “DOL” after Cheshire West!




Simon Burrows was instructed by O’Donnells, Preston on behalf of the Official Solicitor for P in the Cheshire West case from first instance to the Supreme Court. He was led by Richard Gordon, Q.C. in the Court of Appeal and the Supreme Court, and was co-junior with Amy Street in the Supreme Court. 


Thursday 13 March 2014

End in Sight for DOLS

The end in sight for DOLS, asks Simon Burrows


In a somewhat damning report the House of Lords Select Committee has recommended a wholesale overhaul of those parts of the Mental Capacity Act 2005 that regulate the detention of mentally incapacitated people in hospitals and care homes. The report – see http://www.publications.parliament.uk/pa/ld201314/ldselect/ldmentalcap/139/139.pdf

is scathing of the badly drafted Schedule A1 to the Act, introduced by the Mental Health Act 2007, which has attracted the title Deprivation of Liberty Safeguards (or DOLS) although this has been seen as a misnomer by many in the relevant professions for some time. As the Committee makes clear, many who should be safeguarded are not and many thousands of incapacitated people may be detained in care homes and hospitals throughout the country with little or no legal safeguards to protect them.

The report comes a week before the Supreme Court hands down its judgment in what has become the seminal case in determining which people who are placed in supported living arrangements and, by implication, hospitals and care homes are in fact deprived of their liberty. It is hoped that P (by the Official Solicitor) v Cheshire West & Chester Council and P & Q (By the Official Solicitor) v Surrey County Council when handed down on Wednesday 19th March will clarify at least one difficult area that has led to the widespread misunderstanding that the House of Lords finds so prevalent.


Simon Burrows, who acted for P in the Cheshire West case from first instance to the Supreme Court, will provide another note on the judgment on Wednesday morning.

Capacity and Protecting Parties from their Lawyers - Dunhill-v-Burgin

The Supreme Court has given a succinct and clear judgment in the case of Dunhill-v-Burgin [2014] UKSC 18 . writes Nigel Poole QC

In 1999 Ms Dunhill, was a pedestrian when she was struck by a motorcycle driven by the appellant, Mr Burgin. She suffered a severe head injury. In May 2002 she brought a claim for damages and on the day of trial settlement negotiations took place and Ms Dunhill, after advice from her counsel and solicitor, decided to compromise her claim for £12,500 plus costs.

In fact Ms Dunhill had suffered very serious injuries and this settlement represented a gross undervalue of her claim (provided she could prove negligence). In 2006 she consulted new solicitors. A litigation friend was appointed to act on her behalf, and an application was made that the consent order should be set aside.

Two preliminary issues arose. What was the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf. Was it a test of here capacity to litigate in a general sense or was it a test of her capacity to consent to the settlement? Further, what were the consequences if a person lacked capacity but their claim was settled without court approval under CPR Part 21.10. The Defendant did not argue that retrospective approval should be given. In other cases that might very well be a pertinent issue.

The High Court held that capacity was to be judged by reference to the decisions which Ms Dunhill had actually been required to take in the action as drafted rather than those which she might have been required to take had the action been differently framed. On this basis she did have capacity. The Court of Appeal disagreed and held that she had to have capacity to conduct the more complicated action which ought to have been brought. When the case was remitted to the High Court, it held that her lack of capacity rendered the settlement void as it had not been approved by the court as required by CPR 21.10.

The Supreme Court gave permission to Mr Burgin to appeal against both findings and dismissed the appeals, lady hale giving the judgment of the court. The test properly to be applied was whether Ms Dunhill lacked the capacity to commence and conduct proceedings arising out of her claim. The test of capacity to conduct proceedings for the purpose of CPR 21 is the capacity to conduct the claim or the cause of action which the claimant in fact has rather than to conduct the claim as formulated by her lawyers which might depend on whether advice given was good or bad. On this test it was common ground that Ms Dunhill lacked that capacity [13-18].

The effect of incapacity
It followed that Ms Dunhill should have had a litigation friend when the proceedings were begun. Although the court had power to validate steps taken without a litigation friend retrospectively, it was not just to do so in this case in relation to a settlement and consent order made. The consequence was that the settlement was of no effect. The terms of CPR 21 did not enable Mr Burgin to rely on the fact that he had not been on notice of Ms Dunhill’s incapacity [22].

Although there was a need for finality in litigation, and the difficulty of re-opening cases such as this so long after the event was recognised, the policy underlying the CPR was clear: that children and protected parties require and deserve protection, not only from themselves but also from their legal advisers [32-33]. Accordingly the consent order must be set aside and the case go for trial [34].

The case appears to leave open the question of whether and in what circumstances it would be right retrospectively to approve a settlement notwithstanding that approval was needed but not obtained at the earlier time. In this case there was a large disparity between the damages recovered and the award which might be recoverable - that might be a salient factor in any future disputed case.

Manchester provided barristers  for both sides in this appeal and the successful solicitors (Potter Rees).

Sunday 2 March 2014

Westminster CC-v-Sykes

Sam Karim of the Kings Healthcare Team writes about the recent Court of Protection decision in City Council v Sykes [2014] EWHC B9 (COP).

Although MS suffers from dementia and lacks capacity, there were sufficient factors to justify a trial period of home care rather than the deprivation of her liberty in a nursing home. The judgment was published and MS’s anonymity lifted in light of the public interest of the case and the personal characteristics of MS weighing in factor of such an outcome.

MS, an 89 year old who suffers dementia, was deprived of her liberty at QX Nursing Home by virtue of a standard authorisation granted by the local authority under the Mental Capacity Act 2005. MS repeatedly expressed her wish to return to her home in central London. On 19 September 2013, the court issued a section 21A application, by which the local authority asked the court to review the standard authorisation relating to MS. MS and her litigation friend’s opposed her MS’s placement in the nursing home.

The local authority highlighted problems experienced by MS leading up to her admission: lack of acceptable care, altercations with neighbours, self-neglect, unhygienic living conditions, wandering and a lack of awareness of personal safety.

HELD: Due to her dementia, MS lacked capacity to make relevant decisions for herself. There was only one requirement really in issue in relation to this case: that of the best interests of MS. This is an objective test, taking in a diverse range of factors. The task was to identify which of these factors should be compromised in the best interests of MS. The Court found that the risks involved in there being a one month home care trial period were acceptable and manageable, so as to justify a home care trial taking place. The local authority was to put a home care plan in place, along with plans for what would happen if the trial failed, or MS’s funding ran out.

The interference with MS’s home and private life was said to be prescribed by law, a proportionate means of dealing with the risks to MS and for the permitted purpose of attending to MS’s health.

The Court thus held that the standard authorisation would not extend after the point that MS returned home.

Anonymity/Reporting

The normal rule is that the anonymity of an incapacitated person and their family members should be preserved. Nonetheless, the Court held that there was good reason for this judgment to be published. The case involved matters of fundamental rights, such as deprivation of liberty and the rights of incapacitated persons, and there was a clear public interest in it being imparted.

It was appropriate to lift the veil of anonymity, although this was noted to be an unusual case in which the case for being named outweighed the usual anonymity. MS’s personal characteristics were said to be a critical factor, in particular, she always wished to be heard and would want to exert a political influence. By contrast, the family of MS, her nursing home and her professional carers could not be named unless they chose to name themselves. The local authority and experts could be named.