Court of Appeal Abolishes Magna Carta?

by Sam Smith on January 2, 2012

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As 2011 draws to a close I felt it time for me to put pen to paper and write about the Cheshire West case. This is another unfortunate ‘Deprivation of Liberty Case’ in which the Court of Appeal felt the need to hold forth on the merits of locking up women (or anyone) without the need for pesky legal safeguards. We first raised the case on this blog earlier this year – way before it was fashionable. At the time it was a simple case – a disabled man required serious care and significant supervision and control. He needed to be deprived of his liberty, but for some reason council workers lied about it and conspired to perjure themselves. This led to a large number of them being fired and costs being awarded against the authority in the Court of Protection in a public judgement. Another day, another local authority telling lies. So far moderately interesting. What no one could have imagined is the sheer horror of what would follow at the Court of Appeal.

At first instance the judge (Baker J) quite reasonably decided that the man was deprived of his liberty but that he needed to be. The way this should work is quite reasonable. If a person living in a care home needs to be deprived of their liberty, the Deprivation of Liberty Safeguards should be used. Some assessments are done (much like being sectioned only with more paper) and appeal rights kick in. Had that happened there would be no problem.

The idea (if not the implementation) of the Deprivation of Liberty Safeguards is simple. Sadly some people due to a lack of mental capacity need to deprived of their liberty for their own protection. Therefore there must be a process prescribed by law to do so. The person must be subjected to six assessments, most importantly to prove they lack mental capacity and that it is in their best interests to be detained. Forms are filled in and signed. Authorisation is given and appeals and advocacy systems are put in place. So far so good.

Fast forward a few months from the initial case – the local authority does not want to use the safeguards. Too much like hard work. So they go to the Court of Appeal. Now by way of explanation one of the many, many problems with the Deprivation of Liberty Safeguards is that there is no clear definition of what a ‘Deprivation of Liberty’ is. For this alone the Labour Ministers, Advisers and Civil Servants who wrote them should be barred from civilised society. I have heard tell of cases where people have been locked in care homes and leashed (literally) 24/7 and a council has tried to argue there is no deprivation of liberty.

So the Local Authority – Cheshire West and Chester Council – appeal on the basis that the man was not deprived of his liberty. On one argument they may be right – the man is not objecting, cannot speak and no one denies he needs the care plan. The Court of Appeal allowed the appeal. Unfortunately the judgement mostly written by Lord Justice Munby goes far, far beyond what was necessary or remotely proper.

The essence of the judgement appears to be that where a person is so disabled that they need care and support, that care and support cannot be a deprivation of liberty. The comparator is not a [normal] ‘man or woman on the Clapham omnibus’ but ‘the kind of lives that people like X would normally expect to lead’ (pgh 97).

The circular nature of this argument requires clear highlighting. The Deprivation of Liberty Safeguards are the process required by law to determine whether someone lacks mental capacity and it is in their best interests to be deprived of their liberty. The point is – if you like – to prove they are as disabled as Munby LJ suggests and allow the finding to be challenged. However what the Court of Appeal has now added is in effect that if those conditions are met then there is no deprivation of liberty and therefore no safeguards need be used.

This is of course ridiculous. The whole point of the DoLS is that people, (including the patient themselves) may dispute a local authority’s view on Mental Capacity or Best Interests. Speaking as an occasional charitable McKenzie Friend I can say that pretty much all challenges and disputes about a Deprivation of Liberty arise because P and/or P’s family dispute the existence or degree of the disability or the appropriate care for the disability. Hillingdon is a case in point.

What the Court of Appeal has done is to say that if a local authority asserts that someone lacks capacity and needs to be detained then the local authority can detain them without following any formal process. This is of course obscene and puts the cause of civil rights in the UK back not by decades but by centuries. It is a view utterly unreasonable and incompatible with any sensible interpretation of the European Convention on Human Rights or even the Magna Carta (1215 AD). It is contrary to the will of parliament as expressed in the legislation and shorts circuits the entire point of the ‘Safeguards’.

The judgement borders on the bizarre – at one stage Munby LJ appears to state that it is not a deprivation of liberty if a man arbitrarily locks up his wife on the pretext she has dementia (pgh 46) – ‘Now let us suppose that a regime like that imposed by Mr Jackson was to be implemented by a husband after many years of happy marriage because, and only because, his wife is suffering from dementia, cannot safely be allowed out of the matrimonial home on her own, and may wander out (and possibly be knocked down by a passing motor car) unless the front door is locked. Surely it cannot sensibly be argued that the wife is being deprived of her liberty. Nor can the point be evaded by demonstrating that, in the example given, the State is not involved. It cannot make any difference for the purposes of the present point whether the regime is implemented by the woman’s husband or, after his death, by a companion employed by her relatives or by a resident home help employed and paid for by the local authority pursuant to its statutory powers. Otherwise the absurd conclusion would seem to be that Article 5 would be engaged, and our elderly patient deprived of her liberty, on those days in the week when she is being looked after by the carer provided by the local authority but not on those days of the week when being looked after by the carer provided by the family.

Did I miss something here? If a man locks up his wife without any process of law then yes it damn well is a deprivation of liberty. I have never read anything like it. The whole point of any system of safeguards for peopl
e alleged to be mentally ill or disabled is that the patient may well dispute the existence of their disability or its degree. How can they do that if no appeal right is in place? Does the Court of Appeal really believe that allowing council wonks to arbitrarily lock people up in secret without following any due process is sensible?

What if the wife argues and loudly insists she is not demented? What if the care home resident does the same? Answer comes there none from Munby LJ.

I have heard rumours of an appeal against this judgement to occur next year. In the alternative the judgement could be ‘clarified’ in perhaps another case before a more thoughtful member of the judiciary. If not the stupidity and arrogance of this judgement will cause untold human misery for years to come.

Speaking again as an occasional McKenzie Friend my observations are that the DoLS are flawed and have been from the beginning. They barely protect anyone from their local authority and provide even less protection from malicious family members. They are bureaucratic and hard to interpret for good and bad councils and social workers alike.

The DoLS need to do a simple job. If someone is locked up by a council, or not allowed a normal life on the basis of an alleged disability a formal assessment is required and an appeal route is required. That is all. A person in a care home or a supported living environment (not covered by the DoLS) against their will needs an avenue of appeal. Social workers (bless ‘em) need a readily comprehensible law – not a career ending minefield. Everyone needs a cheap, simple and quick appeal system.

Unfortunately Labour screwed it up on all counts. It is unclear if they were simply incompetent or sulking because the nasty Europeans believe secret arbitrary detention is bad. The result was the DoLS. It needs to be fixed – needed it even before the Court of Appeal made it a thousand times worse. Parliament needs to step in. The Conservative Government needs to sort out the mess Labour has made.

Recommendations to solve these problems could be summarised on the back of a fag packet –

  1. We need clear criteria for what is covered by the safeguards that are simple for professionals to understand. The term ‘Deprivation of Liberty’ is covered by complex European law. However we are allowed a ‘margin of appreciation’ domestically to do things our own way and can adopt a simple doctrine. I propose the following – ‘A person over 16 who, due to state action, is not able to choose their own residence or is supervised in their own residence such that they are not able to correspond with whom they choose without supervision.
  2. If the person is detained then there need to be some assessments. Some medical and / or social care professional must sign forms to the effect that they lack capacity and the proposed care plan is the least restrictive possible. Two short forms, anyone? To prevent money and time being wasted on people who do not object to their care then appeal rights only kick in when someone (including the patient) objects, verbally or otherwise, to the placement. If they do then an appeal kicks in.
  3. It strikes me that the simple way to achieve all this is to merge the DoLS with the Mental Health Act and to make Mental Health Review Tribunals do capacity work.

It may seem like a lot of work for the coalition government but the alternative is far worse. As things stand, at the dawn of 2012 nearly a thousand years since the Magna Carta, Munby LJ and the Court of Appeal have made it legal for a man to lock up his wife.

I have a question for readers to answer in the comments section. Q – if one locks up a woman in one’s house on the pretext she has a mental disability is that ok? Is it a deprivation of liberty?

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