DEPRIVATION OF LIBERTY AND THE CHESHIRE CASE

Transcription

1 DEPRIVATION OF LIBERTY AND THE CHESHIRE CASE The Mental Capacity Act 2005 ( MCA ) prvides a statutry framewrk fr acting and making decisins n behalf f individuals wh lack the mental capacity t d s fr themselves. The MCA als cntains the Deprivatin f Liberty Safeguards ( DOLS ). These apply t thse wh fr their wn safety and in their wn best interests needs t be accmmdated under care and treatment regimes that may have the effect f depriving them f their liberty, but wh lack the capacity t cnsent t such arrangements. The safeguards were created t ensure that any decisin t deprive smene f their liberty is made fllwing defined prcesses and in cnsultatin with specific authrities. What are the Deprivatin f Liberty Safeguards? The DOLS prvide legal prtectin fr thse peple t whm the MCA applies and wh d nt require treatment under the Mental Health Act 1983 wh are deprived f their liberty within the meaning f Article 5 f the Eurpean Cnventin n Human Rights ( ECHR ) in a hspital r care hme. If an individual is deprived f their liberty elsewhere, fr example in their wn hme r supprted living arrangements ther than in a care hme, such a deprivatin will nly be lawful if authrised by the Curt f Prtectin as the DOLS prcesses will nt apply. Where the DOLS d apply, they prvide detailed requirements fr when and hw the deprivatin may be authrised. They prvide fr an assessment prcess that must be undertaken befre a deprivatin may be authrised as well as detailed arrangements fr renewing and challenging the authrisatin. In summary, the prcess fr btaining authrisatin fr a deprivatin f liberty is as fllws: The managing authrity has respnsibility fr identifying thse at risk f deprivatin f liberty and requesting authrisatin f the deprivatin frm a supervisry authrity. In the case f an NHS hspital the managing authrity wuld be the NHS bdy respnsible fr running the hspital. In the case f a care hme r private hspital the managing authrity wuld be the persn registered under part 2 f the Care Standards Act 2000 in respect f that hspital r care hme. The supervisry bdy will then cnsider the request fr authrisatin and cmmissin the assessments required by the DOLS. Where the DOLS are applied t a hspital the supervisry bdy will be either the PCT cmmissining the individual s care r treatment, r if the care is cmmissined by the Welsh Ministers r LHB the Welsh Ministers. In the case f a care hme, the supervisry bdy will be the lcal authrity fr the area in which the persn is rdinarily resident r, if this is nt applicable t the individual, the lcal authrity fr the area in which the care hme is situated. If there is nbdy apprpriate t cnsult as t the individual s best interests, ther than peple prviding care f treatment t the individual in a prfessinal capacity, the managing authrity must ntify the supervisry bdy when it applies fr an authrisatin and the supervisry bdy must then instruct an IMCA t represent the individual. The assessments required by the DOLS must be cmpleted within 21 days fr a standard authrisatin, r, where an urgent authrisatin has been given, befre this expires. A standard authrisatin must be requested when it appears likely that at sme time in the next 28 days a deprivatin f liberty will ccur. Wherever pssible this authrisatin shuld be btained in advance, but where the managing authrity believes it is necessary t deprive smene f their liberty befre the standard authrisatin prcess can be cmpleted, the managing authrity itself must give an urgent authrisatin and then btain standard authrisatin within 7 calendar days. The relevant assessments are: Age assessment Mental health assessment Mental capacity assessment Best interest assessment

2 Eligibility assessment N refusals assessment If all the assessments supprt authrisatin, this will be granted and the relevant persn s representative will by appinted. The authrisatin will be implemented by the managing authrity. If any assessment des nt supprt an authrisatin, the request will be declined. Where a persn s deprivatin f liberty is authrised under the DOLS, the managing authrity has a duty t mnitr the case n an nging basis t determine whether the individual s circumstances have changed such that they n lnger need t be deprived f their liberty. A standard authrisatin can be reviewed at any time, but will expire after a maximum f 12 mnths. The managing authrity must make clear in the individual s care plan what the prcedures are fr mnitring that persn s authrisatin and under what circumstances a review is necessary. If a persn s cnditin is changing frequently then their deprivatin f liberty shuld be reviewed mre frequently. Further details abut the DOLS can be fund in the Deprivatin f Liberty Safeguards Cde f Practice: What is a deprivatin f liberty? In rder t establish whether r nt the DOLS will apply r authrisatin will be needed frm the Curt f Prtectin, it is necessary t determine whether a deprivatin f liberty exists. The starting pint is Article 5 ECHR, further t sectin 64(5) f the MCA which states In this Act, references t deprivatin f a persn's liberty have the same meaning as in Article 5(1) f the Human Rights Cnventin The relevant prvisins f Article 5 are as fllws: 1 Everyne has the right t liberty and security f persn. N ne shall be deprived f his liberty save in the fllwing cases and in accrdance with a prcedure prescribed by law (e) the lawful detentin f persns f unsund mind ; 4 Everyne wh is deprived f his liberty by detentin shall be entitled t take prceedings by which the lawfulness f his detentin shall be decided speedily by a curt and his release rdered if the detentin is nt lawful. Whether r nt a deprivatin f liberty exists is ultimately a legal questin, and ne which is a surce f much debate and uncertainty. In March 2011 the Care Quality Cmmissin published a reprt n the peratin f the DOLS which nted a lack f awareness f these safeguards and recmmended that the Department f Health publishes clear and cncise briefings that are accessible and easily applied in practice in rder t demystify the questin f what cnstitutes a deprivatin f liberty. Guidance fr practitiners, including indicatrs f ptential deprivatins f liberty as ppsed t restraint, can be fund in the Deprivatin f Liberty Safeguards Cde f Practice. Hwever, recent case law has develped the legal test in this area, and as a result identifying a deprivatin f liberty is nt a straightfrward task. It was established in the case f Strck v Germany (2005) 43 EHRR 96 that there are three brad elements t cnsider when determining whether r nt a persn is deprived f their liberty. 1. The bjective element f a persn s cnfinement t a certain limited place fr a nt negligible length f time. In ther wrds, the individual s particular circumstances are they kept in a lcked ward r rm? Are they subject t restraint? Are they under the cntinuus supervisin and cntrl f care staff? 2. The additinal subjective element that they have nt validly cnsented t the cnfinement in questin S has the individual indicated that they d nt wish t remain where they are being cnfined r expressed a wish t live elsewhere?

3 3. The cnfinement must be imputable t the State i.e. is there direct invlvement f public authrities in the individual s detentin? Caselaw A number f cases have examined the questin f what cnstitutes a deprivatin f liberty, fcusing particularly n the bjective requirement. R v Burnewd Cmmunity Health and Mental Health NHS Trust, ep p L [1999] AC 458 In the case f Burnewd a 48 year ld autistic man with prfund learning disabilities. He was resident at Burnewd Hspital fr ver 30 years befre being discharged t live with adult fster carers in the cmmunity. He was later readmitted t the Hspital but as he was cmpliant he was nt detained under the Mental Health Act but admitted as an infrmal patient. The ward he was kept n was unlcked, he never attempted t leave and there was never any attempt t detain him against his will r t carry ut any tests r assessments t which he had nt cnsented. Hwever, had he sught t leave he wuld have been detained cmpulsrily. An actin was brught fr judicial review, habeas crpus and damages n the basis that he had been falsely imprisned. The Huse f Lrds held that the Claimant s readmissin t hspital as an infrmal patient did nt cnstitute a deprivatin f his liberty. In cming t this view, the curt placed great emphasis n the fact the Claimant had nt been kept n a lcked ward, he had never attempted r expressed the wish t leave and drew a distinctin between actual restraint and restraint cnditinal n a persn seeking t leave. Further, t the extent that the Claimant had been detained, the Curt fund that any such detentin was justified under the cmmn law dctrine f necessity. The case reached the Eurpean Curt f Human Rights, in HL V UK (2004) Applicatin N: /99 which was asked t cnsider whether the Claimant s rights under Article 5(1) f the Eurpean Cnventin n Human Rights had been infringed, and the Curt held that they had. Further, the Curt fund striking the lack f any fixed prcedural rules by which the admissin and detentin f cmpliant incapacitated persns is cnducted and cnsidered there was a risk f arbitrary detentin as a result. The legislative respnse t this was the intrductin f the Mental Capacity Act 2005 and the deprivatin f liberty safeguards which were incrprated in JE v DE [2006] EWHC 3459 (Fam) [2007] This case cnsidered the situatin in a residential care hme, and accepted that the key indicatr f a deprivatin f liberty in HL was the exercise f cmplete and effective cntrl ver the persn s care and mvements. Mumby J nted with regard t the bjective element that the starting pint must be the cncrete situatin f the individual cncerned and accunt must be taken f a whle range f criteria such as the type, duratin, effects and manner f implementatin f the measure in questin. The distinctin between a deprivatin f and a restrictin upn liberty is merely ne f degree r intensity and nt ne f nature r substance. The curt cncluded that there was a deprivatin f liberty in this case because DE was nt free t leave t leave his residential care hme, in the sense f remving himself permanently in rder t live where and with whm he chses. This apprach was accepted in the cntext f a residential husing unit in the case f G v E [2010] EWHC 621 (Fam). P and Q v Surrey Cunty Cuncil [2011] EWCA Civ 190 The cncept f deprivatin f liberty was significantly reduced in this Curt f Appeal case where the fllwing factrs were held t be relevant: 1. Whether r nt the individual expresses an bjectin t their living arrangements 2. The use f drugs which might suppress the expressin f such bjectins 3. The nrmality f the living arrangements 4. The pprtunities fr leaving the place f residence fr the purpses f recreatin, educatin and scial cntact.

4 In this case, where P lived in a fster hme and Q in a specialist care hme, bth with unlcked bedrms and where P wuld have been restrained had she tried t leave and Q was cntinuusly supervised, neither scenari was held t be a deprivatin f liberty. This was a clear mve away frm the reasning in HL that cmplete and effective cntrl f an individual s mvements and care was a key factr in determining whether there was a deprivatin f liberty. Cheshire West and Chester Cuncil v P [2011] EWCA Civ The waters were muddied further and even greater restrictin placed n the cncept f deprivatin f liberty by the recent case f Cheshire West. In this case P was a 39 year ld man with cerebral palsy and Dwn s Syndrme wh lived in a bungalw with up t 3 ther residents. The nrmal staffing rati was 2 staff fr all fur residents, althugh P received additinal 1:1 clse persnal supervisin during the daytime. P s needs demanded a high level f care he required prmpting and assistance with all aspects f daily living including mbility, nutritin, persnal hygiene and cntinence. P als had a lng histry f pulling at his cntinence pads and ingesting their cntents which, in additin t the bvius hygiene risk, als put him at risk f chking. In rder t manage P s behavir, care staff smetimes needed t resrt t physical interventin where preventative strategies had been unsuccessful. P wuld resist such interventins and as a result they required 2:1 staffing. Other behaviurs als required sme frm f interventin. Fr example, if P became uncperative and sat n the flr varius techniques wuld be used t encurage him t stand but if he were unsafe and refusing t stand tw staff wuld need t hld his hand n either side and supprt him t stand r mve t a chair r his wheelchair. P was unable t leave his accmmdatin withut a member f staff accmpanying him, hwever he received 98 hurs f 1:1 care supprt each week t facilitate activities such as ging swimming, ging t a club and ging t a lcal pub fr curry night. The curt held that P was nt deprived f his liberty. In ding s, the curt highlighted a number f principles which wuld be significant in similar cases in the Curt f Prtectin: 1. The starting pint is the cncrete situatin, lked at as a whle and taking int accunt criteria such as the type, duratin, effects and manner f implementatin f the measures in questin and distinguishing between deprivatin and restraint. The cntext is crucial. 2. N ne factr (such as the presence r absence f a lck) is determinative f a deprivatin f liberty. 3. Mere lack f capacity t cnsent t living arrangements cannt f itself create a deprivatin f liberty 4. In determining whether there is a deprivatin f liberty, it is legitimate t have regard bth t the bjective reasn why smene is placed and treated as they are, and als t the bjective purpse r aim f the placement. Hwever, subjective mtives r intentins have nly limited relevance a gd mtive r intentin cannt render inncuus what wuld therwise be a deprivatin f liberty althugh an imprper mtive r intentin may cause a deprivatin t exist where it therwise wuld nt. The main element emphasized in the judgment, and that which has given rise t the greatest cntrversy in applicatin, is the cncept f the relevant cmparatr. Mumby LJ stated reference t the degree and intensity f the restrictin placed n dubt gives sme indicatin f the principle in play but it hardly prvides a benchmark r yardstick by which t evaluate the circumstances and assess whether r nt there is a deprivatin f liberty There must be smething mre which enables us t pursue a mre fcused and less time-cnsuming enquiry. In my judgment there is. The task is t identify what it is we are cmparing X s cncrete situatin with. In shrt, what is the relevant cmparatr? Munby LJ cntinued I wuld hld that, when evaluating and assessing the relative nrmality (r therwise) f X s cncrete situatin in a case such as this, the cntrast is nt with the previus life led by X (nr with sme future life that X might lead), nr with the life f the able-bdied man r wman

5 n the Clapham mnibus, but with the kind f lives that peple like X wuld nrmally be expected t lead. The cmparatr, in ther wrds, is an adult f similar age with the same capabilities as X, affected by the same cnditin r suffering the same inherent mental and physical disabilities and limitatins (call them what yu will) as X. Likewise, in the case f a child the cmparatr is a child f the same age and develpment as X. Applying this test t the facts f the case, Munby LJ held Baker J in the Curt f Prtectin erred in never cmparing P s situatin in the Z Huse with the kind f life P wuld have been leading as smene with his disabilities and difficulties in what fr such a persn wuld be a nrmal family setting. He never grappled with the questin whether the limitatins and restrictins n P s life at Z Huse are anything mre than the inevitable crllary f his varius disabilities. The truth, surely, is that they are nt. Because f his disabilities, P is inherently restricted in the kind f life he can lead There is nthing t shw that the life P is living at Z Huse is significantly different frm the kind f life that anyne with his cncatenatin f difficulties culd nrmally expect t lead, wherever and in whatever setting they were living Baker J referred t the fact that P cannt g anywhere r d anything withut their supprt and assistance. That, n dubt, is a fact. But it is surely the reality inherent in and dictated by his varius disabilities. It is nt smething impsed n him by Z Huse. The curt accepted that P s dmestic arrangements were nt the nly determinant f nrmality, and a vital aspect is the nature and extent f P s participatin in and interactin with the wider cmmunity utside Z Huse, whether in terms f educatin r ccupatin, scial cntact, sprt r ther utdr activities. Munby LJ cnsidered that Nt merely is P, when he is at Z Huse, living a life which is as nrmal as it can be fr smene in his situatin, his life utside Z Huse is as nrmal as it can be fr smene with his capabilities. Finally, the curt nted that the measures applied frm time t time t P are far remved frm the physical r chemical restraints which ne smetimes finds, fr example, in mental hspitals. They are, in truth, the kinds f ccasinal restraint that anyne caring fr P in whatever setting fr example his wn mther if he was still living at hme wuld frm time t time have t adpt. Implicatins f the Cheshire West decisin At first glance the relevant cmparatr test may appear helpful. It simplifies the decisin making prcess when determining whether r nt a DOL exists and calls fr a subjective cnsideratin f the individuals circumstances rather than the applicatin f a rigid and bjective set f criteria. Hwever, there are significant disadvantages t this apprach. Firstly, the test places a large amunt f discretin in the hands f thse required t make decisins abut the existence f deprivatins f liberty. Once the relevant cmparatr has been identified, it is then fr the decisin maker t decide whether the restrictins they themselves have deemed necessary in rder t care fr and manage P they wuld als impse n a hypthetical persn with the same disabilities, limitatins and restrictins as P. Lked at in this way, in what circumstances wuld the decisin maker say the care plan they devised and deem apprpriate is suitable fr P but wuld nt be suitable fr smene else with P s characteristics? The answer is surely very few. It wuld be pssible t say that a less restrictive care plan culd be applied t a hypthetical P if he r she pssessed the same physical characteristics as P, but their situatin was different. Fr example, P may be deprived f his r her liberty in a care hme because he r she wished t live with their family wh are unwilling r unable t accmmdate them, whereas a hypthetical P with different family circumstances may be able t live at hme. Frm the curt s perspective, reducing the ambit f what cnstitutes a deprivatin f liberty in this has the result f dramatically decreasing the number f cases challenging standard authrisatins simply because fewer deprivatins f liberty will nw be fund t exist. Hwever, in ding s the ruling in Cheshire West is denying the prtectins f the DOLS t a large prprtin f peple they were designed t prtect. Withut DOLS in place r an authrisatin frm the Curt f Prtectin there wuld be n requirement fr regular review f the individual s situatin, nr wuld there be the pprtunity fr the individual t challenge their cnfinement via the curts. Mre wrryingly, in applying the relevant cmparatr test it becmes clear that the greater the extent f an individual s disabilities the easier it will be t say that they are nt deprived f their liberty and s the DOLS will nt apply.

6 Als, the test in Cheshire West arguably cnfuses the questin f what is in smene s best interests with that f what cnstitutes a deprivatin f liberty. Where a supervisry bdy cmmissins the relevant assessments fr determining the existence f a deprivatin f liberty, ne f these is a best interests assessment carried ut by a best interests assessr. Pre-Cheshire West it wuld nt be until this assessment was cmpleted that factrs such as relative nrmality wuld be cnsidered in detail in the cntext f making a decisin abut whether P s arrangements were in his best interests. Nw, if a managing authrity asks itself whether a hypthetical P sharing P s physical characteristics wuld be subject t the same care arrangements this questin (which is arguably a questin f best interests) wuld be answered by the managing authrity, mst likely by P s wn clinicians r care staff, befre ever reaching the best interests assessment stage. Further, the Cheshire West judgment differs in its rati frm the judgment in Stanev v Bulgaria (Applicatin N /06) dated 17 January In this case the Grand Chamber f the Eurpean Curt f Human Rights ruled that the placement f the Applicant in a scial care hme fr peple with mental disrders and his inability t btain permissin t leave the hme justified a finding that he was deprived f his liberty. A key factr influencing the Eurpean curt s decisin was the inability f the Applicant t leave, in cntrast t the Curt f Appeal s apprach in Cheshire West. The Official Slicitr has made an applicatin t appeal the decisin in Cheshire West and the Supreme Curt is currently cnsidering the applicatin. There is a general hpe within the cmmunity f practitiners in this area that permissin will be granted and brad agreement that there remains an urgent need fr clarificatin f this issue frm the Supreme Curt..