Introduction

Historically ‘deprivation of liberty’ has been an elusive and ill-defined concept in health and social care settings. The words themselves are derived from Article 5 of the European Convention on Human Rights (ECHR): the right to liberty and security. In England and Wales, the MCA authorizes the restriction, but not the deprivation of liberty, of a person who lacks the relevant decision-making capacity. It is therefore necessary to distinguish the tipping point between permissible restrictions authorized under section 5 of the Mental Capacity Act (MCA) (limited by section 6) and when a deprivation of liberty may arise. A deprivation of liberty (a DoL) without lawful justification and due legal process for scrutiny would be a breach of the person’s rights under Article 5 with associated consequences including the right to compensation.

The judgment handed down by the Supreme Court in P and Q and P (in Cheshire West)¹ in March 2014 has established a threshold to apply and a measure of clarity as to when a deprivation of liberty may arise. This threshold is perhaps lower than many anticipated and consequently has had wide-ranging effects. In relation to older people, and particularly those with dementia, this is the situation that now applies in a whole range of clinical and social care locations. There are, however, two legal considerations for practitioners; first, what constitutes a deprivation of someone’s liberty? We shall discuss this in relation to some of the relevant case law along with practical considerations as to how it may be recognized in different settings. Second, how is it authorized? At the time of writing, one scheme to authorize a deprivation under the MCA, the Deprivation of Liberty Safeguards (DoLS), is to be replaced by a second scheme, the Liberty Protection Safeguards (LPS), which is not yet operational. We shall, therefore, discuss the interface between the DoLS/LPS and the Mental Health Act 1983 (MHA) and briefly discuss the anticipated amendments the LPS will introduce.

Background to the Concept of Deprivation of Liberty

The first point to note is that Article 5 of the ECHR is a ‘limited right’ and does not protect us from detention. There are defined circumstances when it does not apply. It expressly permits confinement of criminals, illegal immigrants, and the ‘lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants’. It does, however, protect us against ‘arbitrary detention’ so that deprivations are made in accordance with a procedure prescribed in law.

A pivotal case is that of Mr L in the Bournewood Hospital.² The facts of his case are well known and will not be repeated here, but ultimately the two important issues were as above: first, was Mr L deprived of his liberty? The European Court of Human Rights (ECtHR) determined that HL was deprived of his liberty because clinicians took ‘complete and effective control over his care and movements’ and he was not ‘free to leave’. The second issue was whether or not the common law (judge-made law rather than that enshrined in statute) was sufficient authority for the deprivation. The judgment was that common law was not compliant with Article 5 because it is not a ‘procedure prescribed by law’.

The MHA provides the required legal mechanisms to authorize the deprivation of liberty of ‘detained’ mental health patients. However, it was not generally used for patients with long-term incapacity such as dementia or learning disability, particularly if they were apparently compliant with the admission to hospital, such as Mr HL. Thereafter the ‘Bournewood gap’ was recognized, which referred to the legal predicament of the tens of thousands of people who lacked capacity to consent to admission to psychiatric hospitals and who were deprived of their liberty but without the protection of the law. This, of course, also applied in social care settings such as care homes. The government (in England and Wales) had to plug the legal gap left in the wake of the ECtHR ruling and introduced the DoLS to the MCA 2005 (via the 2007 amendments to the MHA).

There was, and still is, no statutory definition of the concept, although there was guidance in the DoLS Code of Practice based on the available cases relating to DoL from domestic and European courts.³ The detailed-specific nature of the cases and differences in judicial interpretation meant that concepts were not readily generalizable and without sufficient clarity the ‘Bournewood gap’ remained open. This uncertainty about the meaning of deprivation of liberty was demonstrated by the failure of professional groups, including experts in the field, to agree on when it may be happening.⁴ Also, considerable variation in practice arose amongst practitioners and clinicians.⁵ The judgment in P and Q and P (in Cheshire West), discussed subsequently, was the Supreme Court’s attempt to clarify this contentious area of law.

The practical advice on the first question of how to recognize a deprivation in the DoLS Code of Practice is therefore that one should always consider ‘all the circumstances of each and every case’ and includes a list of factors that have been taken into account by the European and domestic courts. The Code also points out that these are merely factors to consider and not conclusive on their own. Notwithstanding the low threshold for when Article 5 is engaged by the ‘acid test’ (see subsequently), for any individual it will be helpful to summarize what elements of the care plan are likely to be judged as restrictions; and then consider the effects of the care arrangements on the person’s individual freedoms along with their expressed intentions and thereafter seek, where possible, to reduce their impact.

The Supreme Court Judgment in P and Q and P in Cheshire West

The ‘Cheshire West’ judgment handed down by the Supreme Court in March 2014 established a threshold to apply (the ‘acid test’) and, although not without controversy, added some clarity as to when a deprivation of liberty might arise. The case concerned three individuals: two sisters who had been taken into care (P and Q) and a man (P) with severe disabilities. The features of the cases are contained in Boxes 22.1 and 22.2.

Lady Hale, in her opening statement of the judgment, made it clear what the Court had to decide: ‘… whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, then the deprivation has to be authorized, either by a court or by the procedures known as the deprivation of liberty safeguards.’¹

The majority decision in the Supreme Court was that all three individuals were deprived of their liberty. Taking the lead in the judgment, Lady Hale emphasized that the rights in the ECHR apply to everyone and underpin the UN Convention of the Rights of Persons with Disabilities (UNCRPD). She made it clear that ‘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’.¹ Also, these conditions apply whatever the circumstances or characteristics of the living arrangements even if they ‘are comfortable, and indeed make my life as enjoyable as it could possibly be’.¹

The key phrase used in the judgment was (again) whether the person concerned was subject to ‘continuous supervision and control’ and ‘was not free to leave’. This, along with the deprivation being the responsibility of the state, forms the basis of the ‘acid test’. Other factors, which were not relevant considerations, are the person’s compliance or lack of objection; the relative normality of the placement (whatever the comparison made); and the reason or purpose behind a particular placement. Exactly the same considerations should apply whether or not a person has impaired health or capacity. While there may be some debate as to the definitions of these terms, both elements of the acid test must be satisfied, the threshold applied is low, and the confinement to a particular place must be for a ‘not negligible’ period of time. What constitutes a non-negligible length of time is again a moot point but will depend on the individual circumstances and, where the measures of control are more intense, the shorter the period of time that can be considered ‘non-negligible’.

Implications: The ‘Acid Test’

The effect of the judgment and application of the ‘acid test’ is to widen enormously the scope for those who are now deprived of their liberty and whose care thereby requires additional legal authorization by whichever scheme. This will apply to the broad range of settings, and not just in hospitals and care homes, to which the MHA or DoLS (currently) may apply. At the time of writing there are older people outside the scope of DoLS whose deprivation of liberty requires court authorization, for example those in supported living or occasionally in their own homes.

The ‘acid test’ is not as clear as it might first sound. It is not possible to say for certain what the terms ‘continuous supervision and control’ and ‘not free to leave’ mean and in frontline settings they have provoked considerable debate. Indeed, some judges have unsuccessfully tried to push back on the judgment of the Supreme Court.⁶ However, the limits imply that ‘continuous’ does not have to mean uninterrupted; and being in a situation where one is ‘not free to leave’ the individual may not necessarily express a desire to do so but would be stopped if they tried. A more precise definition does not exist and there seems to be little standardization. Importantly, deliberations will need to reflect the overall effects and consequences on the person’s life but, in reality, there is marked variation in interpretation and practice, which is perhaps reflected in the wide variation of referrals across England and Wales.

In considering how a deprivation is authorized, it follows that there are now different legislative routes that may apply to patients who lack capacity and may also require detention in order to provide care or treatment. The routes follow the provisions of the amended MHA or the MCA. While the principles, provisions, purposes, and policy concerns of the two acts are quite distinct, there will be instances where the most appropriate choice of legal authority is unclear and the interrelationship between the Acts will be complex.

The ‘Acid Test’ in Psychiatric Settings

The Care Quality Commission (CQC) have observed that between 2005 and 2006 and 2015/16 the reported number of uses of the MHA increased by 40%.⁷ They proposed a number of factors that might influence the rates of detention including the increase in population and some sections of the population being ‘at risk’ of detention, especially older people with dementia. Furthermore, there has been a striking change in policy and practice as a result of the Cheshire West judgment, as well as how criteria for detention are now applied to people with dementia. The effect of this has been that most patients with dementia who lack the capacity to consent to admission to psychiatric inpatient care are now detained under the MHA. The implications of the judgment and thereby the guidance from the MHA Codes of Practice^{8, 9} suggest that there is limited scope for informal admission of incapacitated individuals to psychiatric facilities. Although the revised Code of Practice reminds us (at paragraph 4.22 of the English Code) that ‘if the MCA can be used safely and effectively to assess or treat a patient, it is likely to be difficult to demonstrate that the criteria for detaining the patient under the Mental Health Act are met’.⁸

For psychiatrists, the judgment draws attention to the interface between the MHA and DoLS. Determining the appropriate basis to authorize admission and treatment for mental disorder can raise difficult questions. In an earlier upper tribunal case Mr Justice Charles highlighted some of the difficulties: ‘All decision makers who have to address the application of the provisions of the DoLS contained in Schedules A1 and 1 A of the MCA are faced with complicated legislative provisions and their difficulties are compounded when they have to consider the relationship between the MHA and the MCA’.¹⁰

It is fair to say that Schedule 1A’s complexity (persons ineligible to be deprived of their liberty by the MCA) is now infamous. Notwithstanding, the revised MHA Code of Practice does offer some guiding principles in relation to which Act to use for both physical and mental disorders and reflects this judgment and further developments in case law. The reader is referred to the English and Welsh Codes of Practice for further details, but the influence of the Supreme Court judgment can be seen, for example, in the following statement (at paragraph 13.39 in the Welsh Code) that ‘…a person who lacks capacity to consent to being accommodated in hospital for care and/or treatment for mental disorder, and who is likely to be deprived of their liberty should never be informally admitted to hospital, whether they are content to be admitted or not’.⁹

There are instances where there seems to be a genuine choice of which legal scheme to apply. For example, DoLS may be appropriate for non-objecting patients who meet the ‘acid test’, but who are waiting for discharge arrangements to be put in place and may not be receiving what might in other circumstances be specialist treatment for their mental disorder. The advice of the authors is to apply the guidance in the relevant Code of Practice in considering both decision-making capacity and the presence of an objection, while adopting a low threshold for what constitutes an objection. In addition, it may be relevant to consider how the individual’s Article 5 rights to challenge the deprivation are being protected.