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 people 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?

jane January 19, 2012 at 03:25

I was locked up by social services in mental health mother and baby units
for 11 months despite no problems with my mental health or parenting no
sectioning all done in our secret family courts

Sam Smith January 5, 2012 at 15:33

I am pleased the feminist movement have caught on to the er… problems with
Munby’s approach. However don’t lose sight of the generality of the issue.
When is it ‘obvious’ that someone needs care. What happens when one person
(say a council) says it is and everyone else says it isn’t?

That said – if Harriet Harman wants to raise it in the house please do…

Incidentally I wrote that article and I am a gentleman not a lady.

Steve Pett
January 3, 2012 at 10:39

I think “bonkers” says it all.

Leonard Lawrence
January 3, 2012 at 10:04

Google Leonard Lawrence Pilot

The Law Society, Solicitors Regulatory Authority, FINAL REPORT
CRO/97504

“Issues raised by Mr Lawrence are significant and should be investigated
and responded to on the basis that they indicate areas in which the legal
system appears to have failed to sufficiently protect an extremely vulnerable
adult”.

Response from Mr. Lawrence former Guardian ad litem

May Maughan, The Deputy Official Solicitor:

“We are not prepared to answer any further queries and your correspondence
in future, whether by e-mail, hard copy letter, or telephone, will not be
answered, nor acknowledged.

Yours sincerely

May Maughan
Deputy Official Solicitor
Office of the Official
Solicitor and Public Trustee
Tel: 020 7911 7121
may.maughan@offsol.gsi.gov.uk

andy5759 January 4, 2012 at 19:41

What a sad case LL. It scares the hell out of me (not flying per se, but
that our representatives could cover this up).
Could these air
contamination incidents possibly be behind some recent ‘inexplicable’
accidents? I am primarily thinking of the Air France flight 447
catastrophe.

Stan the Man
January 3, 2012 at 07:56

Whomever has read details given to us about the Magna Carta of 1215 and
later version , they should immediately see that it was drawn-up for those
whom were called “the Freemen” whom were the rich Earls, Barons, and other
such parasites robbing the poor….The working classes were serfs to which the
affore named still look on the working classes to this day as being “Serfs” do
they Not?? and as their ticket to wealth…It’s the same as the stories put out
about King Alfred when he allowed “the cakes” to get burned, instead of the
truth as to what he and the woman of the house were actually doing……Things
were published to make those parasites look good; when in reality things were
just the opposite…And when you are a Victim of Crime in this day and age been
through the “corrupt system” run by our “establishment” you soon find that
things have NOT altered one little bit…..and regards democratic rights and
freedoms the Many working classes whom laid their lives on the line as I did
you soon find you have none of these either!! In my opinion the Whole
“Establishment” along with the specially “selected” Judiciary that run it,
with the police as “their enforcers”, are rotten to the core as you will find
in an attempt to get access to “Fair Hearings” democratic rights/freedoms
….Stan the Man

Lucy January 2,
2012 at 18:17

Hiya Sam,

As you know I really share your concerns about the Cheshire ruling. I think
there’s a sleight of hand going on in these judgments. By linking the
restrictions to a person’s disability, the courts are attempting to ignore the
degree to which restrictions on liberty are imposed through the actions of
others. Consequently, the judgment is insensitive to the danger that
restrictions will be arbitrary, inappropriate and unchallengeable.

I think one of the issues in the background to this case though, is that it
fell outside the scope of the DoLS. Aside from the many and varied defects of
the DoLS themselves, a significant problem is that they don’t apply in care
settings that are not care homes. That tends not to affect older adults, who
typically use residential care, but it affects large numbers of adults with
learning disabilities in supported living. The problem is that when you can’d
use DoLS, the local authority has to seek authorisation for detention directly
from the Court of Protection annually. There is no permission-free route to do
this, and no automatic entitlement to legal aid for P and P’s family (although
the CoP has indicated that there should be). In short, it’s *massively* time
consuming and expensive, and these aren’t even cases where there’s any
dispute. Through the Cheshire ruling, the majority of these cases will no
longer have to clog up the courts, but the danger is that now they – and other
cases that would previously have been covered by DoLS – are now not within any
oversight framework at all.

On the family home issue, you’d probably be surprised how often family
carers are forced to rely upon locking their loved ones in the home. For
instance, at night, to prevent them wandering and coming to harm while they
are asleep. Have you read A Local Authority v A (A Child)& Anor [2010]
EWHC 978 (Fam)? This goes into great detail about whether a person can be
detained in the family home, and it’s a fascinating study of the tensions
between family life and state interference. If you believe in minimising state
interference, you have to be very cautious about finding Article 5 to be
engaged in the family home, because then families would need to seek
authorisation to detain, and there would need to be an appeal mechanism, and
then there’s the right to compensation for unauthorised or otherwise unlawful
detention…

On a more literary note, it’s interesting that judges use Mrs Rochester as
an example of deprivation of liberty in the family home. By the reasoning of
Cheshire, I’m not sure she would have been!

http://godlessfaith.blogspot.com/ January 2, 2012 at 16:02

It’d be insane to say a husband (or wife) could lock up their spouse
indefinitely without recourse to legal mechanisms. Bonkers.

That said, while it should be scrutinised, one spouse should not end up
completely in the shit for a good-faith restraint of their spouse while they
sought an intervention. If one member of a household has announced that
they’re going to go throw themselves off a bridge, then their partner should
stop them doing so and try to get a crisis intervention. That could surely
only ever be short-term, however.

If, on the other hand, the husband of the example is doing this after a
reasonable process has been gone through, a care plan developed, and the care
plan critically examined for reasonableness.

IANAL or medical person or anything, btw, but I do have some mental health
history of my own.

Andrew Duffin
January 2, 2012 at 15:08

@woodsy42: this is exactly what occured to me on readin the judge’s
remarks.

Is it possible – dare we even think it – that he was trying to resolve this
case in a way which would leave wiggle room for the religion of peace?

M Barnes January 2, 2012 at 13:52

whoops – sorry – its’ DoLS appeals’ – not the actual cases. Good .

M Barnes January 2, 2012 at 13:51

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?
A – No and Yes

Surely to goodness Munby will have his judgement drop kicked out of the
ground? I certainly hope someone is appealing this. The frustrating part of
this is that there is a need for this kind of law – AND APPEALS PROCESS. It
also needs to be simple for both the public and the professions managing such
situations. If a law is too complex, open to a thousands interpretations that
result in catastrophic consequences for professions and acres of expensive
paperwork for councils what happens is that those same professionals and
councils see it as more cost effective and safe to ferret out a loophole. And,
being human, they promptly screw-up and abuse the loophole.

Why have DoLS cases trebled? Has everyone suddenly ‘caught’ dementia? Gone
mad?

Is that the whiff of a dead rat I smell?

Devil’s
Kitchen January 2, 2012 at 13:43

No! I’m Mrs Rochester!

DK

mark neary January 2, 2012 at 11:22

There is a report in today’s Independent (http://www.independent.co.uk/news/uk/home-news/appeals-soar-after-secret-courts-are-opened-to-public-6283986.html)
that the number of DoLs appeals have trebled since our case in June. I find it
an awful thought that as a result of the Cheshire ruling, people will be less
likely to be able to appeal. In our judgement, the judge quoted Magna Carta,
as part of his declaration that Hillingdon acted unlawfully – how can two
judges be so far apart of their reading of a deprivation of liberty

Woodsy42 January
2, 2012 at 10:34

Now widen the situation. Apply this judgement to that of a moslem household
where a daughter is locked in and restrained because she is exhibiting signs
of westernisation and independent thought and (say) refuses an arranged
marriage. The family would no doubt describe it as a mental problem. Hasn’t
his ruling just made that lock-in behaviour acceptable?

Elena ‘andcart
January 2, 2012 at 10:32

Any sane person unjustifiably deprived of their liberty without redress is
quite likely to behave as though they need restraining. I know I would.

right_writes January 2, 2012 at 10:25

This is about a state mechanism that is out of control.

Representative democracy has failed, the public have disengaged from the
political process and the state system has assumed totalitarian control.

The same situation is apparent in how the state handles the child ‘care’
system… See oodles of reports from Christopher Booker in the Sunday
Telegraph.

To put this sort of slapdash way of handling life (for this is what we are
talking about) and liberty into perspective…

Substitute ‘denial of liberty’ for denial of life (euthanasia) and then try
to answer the very good questions that Sam Smith raises in regard to our
established systems of ‘justice’ and ‘care’.

At one point, Sam refers to the standards applied by the EU… I am sure that
they are very high… however, we have a different tradition, and I reckon that
it is this attempt at merging the traditions that is causing some of the
consequent aberrations.

The point of the British system, as initiated by King Alfred and the later
Magna Carta, is that the people should be able to do anything that is not
expressly forbidden by the law.

The general European system, is precisely the reverse. only that which is
legislated for is permissible. It is therefore no accident that since 1986,
there have been nearly 400,000 changes made to the law in this country, during
the previous 1000 years about 200,000… During the first two or three years of
the parliamentary system, only two changes were made.

The reality of course, is that only one law is really needed…

DO NO HARM.

Then a combination of one’s peers… legal specialists like judges and
McKenzie friends, and ordinary folk… juries, examine a particular case where
harm is alleged to have occurred, discuss and deliberate.

JuliaM January 2,
2012 at 08:58

Sinister..

gladiolys January 2, 2012 at 08:53

In answer to your question… her only disability maybe finally to have
realised after x number of years that her husband is a prick… in which case
she has recovered from a disability and should be encouraged to get on with
her life.

This country is going to have a lot of such incapacity/disability cases.
These new laws seem designed to drive people insane.