Deprivation of liberty

On 5 October 2004, just as the Mental Capacity Bill was completing its passage through Parliament, the European Court of Human rights delivered its judgment in HL v United Kingdom1. The Court held that where a mentally incapacitated patient, even one who is not resisting admission, is deprived of his or her liberty, this must be carried out in accordance with a procedure prescribed by law. The Strasbourg Court held that the way in which HL, a man with autism, had been deprived of his liberty by “informal admission” was a deprivation of liberty on grounds of unsoundness of mind, which had not been carried out in accordance with a procedure prescribed by law as required by Article 5(1)(e). The Court further held that there had been a breach of Article 5(4) since neither HL nor his carers had been able to have the lawfulness of his detention decided speedily by a court.
The government has subsequently introduced new procedures for standard and urgent authorisations of deprivation of liberty. These will have a significant impact on admissions of elderly clients with mental incapacity due to dementia or Alzheimer’s.

Treatment and restraint under the Mental Capacity Act 2005
Sections 5 and 6 of the Mental Capacity Act (MCA) 2005 codify the doctrine of necessity. Section 5 provides a defence against a battery action based on lack of consent in respect of acts connected with care and treatment. This defence is available if reasonable steps have been taken to assess the person’s capacity, the person is reasonably believed to lack capacity, and the doer reasonably believes the act to be in the person’s best interests.
Section 6 allows this defence to apply to acts intended to restrain the incapacitated person, provided that two conditions are met. The first condition is that the doer reasonably believes that it is necessary to do the act in order to prevent harm to the incapacitated person. The second is that the act is a proportionate response to (a) the likelihood of P’s suffering harm, and (b) the seriousness of that harm. Instead of seeking to introduce last-minute amendments to the Mental Capacity Bill, the government decided to hold a consultation exercise as to what procedures should be introduced to comply with HL v United Kingdom. In the meantime section 6(5) of the MCA made it clear that the authorisation of restraint in section 6 did not extend to a deprivation of liberty. Sections 11(6) and 20(13) provided that the authority to restrain in those sections did not extend to deprivation of liberty.

Bournewood authorisations: The amendments to the Mental Capacity Act by the Mental Health Act 2007
The prohibitions on deprivation of liberty are repealed by section 50(4) of the Mental Health Act (MHA) 2007, and section 50(2) introduces new Schedules A1 and 1A to the MCA 2005. Schedule 1A says who is eligible to be deprived of their liberty under the MCA. Schedule A1 is an elaborate and complex code of procedures to authorise deprivation of liberty of adults who lack capacity to consent to their placement in a hospital or residential care home. Section 50 of the 2007 Act amends the MCA 2005 to add provisions for the lawful deprivation of liberty of a person with a mental disorder, who lacks capacity to consent, if it is in that person’s best interests.
Section 50(2) inserts two new sections, 4A and 4B, into the MCA 2005. The effect of these will be that deprivation of liberty may only take place under the MCA in one of three situations. These are where:

The deprivation is authorised by a personal welfare decision of the Court of Protection under section 16(2)(a) of the MCA 2005;
The deprivation is authorised in accordance with the deprivation of liberty procedures set out in Schedule A1;
The deprivation is carried out because it is necessary in order to give life sustaining treatment or to carry out a vital act to prevent serious deterioration in the person’s condition “while a decision as respects any relevant issue is sought from the court.”2

An authorisation is necessary when a hospital or care home consider that they are already depriving someone of liberty, or are about to do so. There is a considerable body of law and guidance on the issue.

When is someone deprived of liberty?
In HL v United Kingdom the court held that the distinction between a deprivation of liberty, which requires authorisation by a procedure prescribed by law and a restriction of liberty, which does not, was a matter of degree and intensity. The starting point must be the “concrete situation of the individual” and a whole range of criteria must be taken into account such as the type, duration, effects and manner of implementation of the measure in question. In HL v United Kingdom, the Court found that those having care of HL exercised complete and effective control over his assessment, care, treatment, contacts, movement and residence. He was under constant supervision and control, and was not free to leave the hospital. This amounted to a deprivation of liberty. Since the deprivation of liberty had not been carried out in accordance with a procedure prescribed by law, and HL had not been able to seek speedy review of the lawfulness of his detention, there were breaches of his Convention rights under Article 5(1)(e) and Article 5(4).
Government guidance following Bournewood advises hospitals and care homes to operate regimes that minimise the risk of a deprivation of liberty taking place. Paragraphs 7 and 8 of the Draft Illustrative Code of Practice on the Bournewood safeguards state that it is best practice to avoid deprivation of liberty:

7. It is intended that a deprivation of liberty in Article 5 ECHR terms should be avoided if at all possible. The Bournewood safeguards apply specifically to deprivation of liberty and so, for example, it is not necessary or appropriate to apply for a Bournewood authorisation for all admissions to hospitals and care homes simply because the person concerned lacks capacity to decide whether to be admitted;
8. Those involved in the provision of residential accommodation potentially coming within the scope of the Bournewood provisions should, to the greatest possible extent that safety considerations will allow, seek to operate care regimes that promote a person’s control over their daily living and maximise their autonomy. This will both reduce the likelihood of deprivation of liberty arising, and enhance their quality of life.

The Draft Illustrative Code goes on to advise (in paragraph 11) on steps which will reduce the risk of deprivation of liberty and therefore legal challenge by minimising restrictions within institutions. Decisions should be taken in a structured way involving the person themselves and their carers; should follow (as appropriate) the care programme approach, person centred planning, unified assessment or single assessment process; and should be fully documented. Following the fifth principle in section 1 of the MCA 2005, before an authorisation is sought for deprivation of liberty, attempts must always be made to identify ways to meet the person’s needs in a less restrictive way.
However, minimising restrictions on freedom within institutions may not be enough to avoid reaching the level of control needed to deprive someone of their liberty, as is indicated by the decision in JE v DE (by his litigation friend the Official Solicitor), Surrey County Council and EW3. Unlike the situation in HL v United Kingdom, although DE lacked mental capacity to decide where he should live, he had made it abundantly clear that he wishes to leave the residential care home where he had been placed by the local authority. Munby J accepted that a deprivation of liberty consisted of both an objective element – a person’s confinement in a particular restricted space for a not negligible length of time, and a subjective element – that the person has not validly consented to the confinement in question4.
As to the subjective element, it was clear that DE was not consenting to placement in the home. As to the objective element, the judge accepted that DE had, within the homes where he was placed, “a very substantial degree of freedom, .. [and] .. a very substantial degree of contact with the outside world.” DE had never been subjected to the same invasive degree of control to which HL was apparently subjected, and had never been subjected to either physical or chemical restraint. Nevertheless, the judge held that the crucial question was not so much whether (and, if so, to what extent) DE’s freedom or liberty was or is curtailed within the institutional setting. The fundamental issue was “whether DE was deprived of his liberty to leave the homes where he was placed” – not in the sense of leaving for the purpose of some trip or outing approved by those managing the institution, but rather “leaving in the sense of removing himself permanently in order to live where and with whom he chooses.”5 In this case, DH wanted to go home to live with his wife. Munby J held that because he was not free to leave, he had been deprived of his liberty.
Paragraph 25 of the Draft Illustrative Code of Practice lists the following factors drawn from the case law of the Strasbourg Court as potentially indicating that a deprivation of liberty is taking place:

Restraint was used, including sedation, to admit a person who was resisting;
Professionals exercised complete and effective control over care and movement for a significant period;
Professionals exercised control over assessments, treatment, contacts and residence;
The person would be prevented from leaving if they made a meaningful attempt to do so;
A request by carers for the person to be discharged to their care was refused;
The person was unable to maintain social contacts because of restrictions placed on access to other people;
The person lost autonomy because they were under continuous supervision and control.

Paragraph 28 of the Draft Illustrative Code of Practice contains a further list of factors which are likely to be taken into account by the courts in deciding whether there is a deprivation of liberty. These are:

The person is not allowed to leave the facility – especially where family or friends are prevented from moving them to another care setting;
The person has no or very limited choice about their life within the care home or hospital;
The person is unable to maintain contact with the world outside the care home or hospital;
Restraint was used on admission and the person is not realistically subsequently able to leave.

The Bournewood provisions for authorisation of deprivation of liberty apply to people who are over 18 (children are dealt with under section 25 of the Children Act 1989). The person must lack capacity to consent to the arrangements for their care. Receiving care or treatment in circumstances that amount to a deprivation of liberty must be necessary to protect the person from harm and must be in their best interests.

Was Bournewood the best solution?
It is impossible to explain the new Bournewood safeguards in a short compass. The provisions are voluminous and complex, and it will take a further article to explain the authorisation procedures. The complexity prompts the question whether the provisions are appropriate. Great lengths have been gone to, to ensure that deprivations of liberty of Bournewood patients take place under the Mental Capacity Act rather than the Mental Health Act. The Joint Committee on Human Rights considered that procedures for depriving a person of their liberty should be implemented before the person is detained rather than subsequently. Judicial support for this view is now to be found in the decision of Munby J in Sunderland City Council v PS and CA6, where he said that where a court was authorising deprivation of liberty, the following minimum requirements must be satisfied in order to comply with Article 5:

i.          The detention must be authorised by the court on application made by the local authority and before the detention commences;
ii.          Subject to the exigencies of urgency or emergency the evidence must establish unsoundness of mind of a kind or degree warranting compulsory confinement. In other words, there must be evidence establishing at least a prima facie case that the individual lacks capacity and that confinement of the nature proposed is appropriate;
iii.         Any order authorising detention must contain provision for an adequate review at reasonable intervals, in particular with a view to ascertaining whether there still persists unsoundness of mind of a kind or degree warranting compulsory confinement.

There is no guarantee that Bournewood authorisation will be sought prior to admission where it is known that a person will be deprived of liberty.
It is puzzling why the Government did not consider using Mental Health Act guardianship or a similar procedure to authorise deprivation of liberty. It is generally considered that Mental Health Act guardianship may not be used to authorise a deprivation of freedom. However, a person subject to guardianship may be required to allow access on the part of health and social care professionals, to reside at a specified place, and to attend specified places for the purposes of treatment or training. They may not be given treatment without consent, but they may be brought back to the place where they are required to reside if they abscond, although there is no express power to prevent them from leaving. If the patient does leave they may be taken into custody and returned.
The Mental Health Act 2007 contains a provision introducing a power to take and convey a person to their required place of residence under guardianship7. It is possible to envisage circumstances where a guardianship patient might be subject to a degree of control of the requisite degree and intensity to amount to a deprivation of liberty. Guardianship is activated on application by an Approved Mental Health Professional supported by two medical recommendations on the grounds that the person has a mental disorder that warrants reception into guardianship and it is necessary for the welfare of the patient or for the protection of others. The nearest relative has a power to object. Guardianship carries a right of appeal to the Mental Health Review Tribunal, but it is not available for people with learning disability unless there is abnormally aggressive or seriously irresponsible conduct. Some small changes to guardianship would have achieved the same result as the complex system of assessments required by the Bournewood authorisation, and would more clearly have met the requirements of Article 5 of the European Convention on Human Rights.

Philip Fennell is professor of Law at Cardiff Law School. He has written widely on mental health law, and served as specialist legal adviser to the Joint Parliamentary Scrutiny Committee on the Mental Health Bill 2004 and to the Joint Committee on Human Rights on the Mental Health Bill 2006. In his second article, Phil will consider the authorisation procedures.

References
1 [2005] 40 EHRR 32
2 Mental Capacity Act 2005, s4B;
3 [2006] EWHC 3459 (Fam);
4 Ibid., para [77], following Storck v Germany (2005) 43 EHRR 96 at para [74];
5 Ibid., para [115];~
6 [2007] EWHC 623 (Fam), para. 23;
7 Mental Health Act 2007, Schedule 3 para. 3(5).