Valley of the DoLS…

Belinda Schwehr, Community Living’s legal correspondent, analyses the interpretations of the Cheshire West case which continues to cause confusion among both legal and social work practitioners.

As reported in Community Care* Mr Justice Mostyn has drawn attention to the ongoing Cheshire West confusion and sparked further controversy. The Court of Appeal has also criticised Lord Justice Munby’s approach to resolving the confusion via Court of Protection procedural rules. Grappling with the fallout from the Cheshire West case (see Community Living, 28.4) in what was supposed to be an appeal, the Lord Justice cited two out of 25 individuals whose situations he used as examples to assist local authorities and the legal world.

Meanwhile, Mr Justice Mostyn’s judgment in a Rochdale case involving a lady who could hardly walk, has been appealed with his permission in an attempt to get the issue referred to more senior judges. But his judgment was overturned by consent, which only happens when both sides recognise that the judge is fundamentally wrong. The Court of Appeal has formally allowed that appeal but without indicating precisely how Mr Justice Mostyn’s approach was flawed.

In Bournemouth BC v PS and DS, he ruled that a man with autism and associated challenging behaviour – known as ‘Ben’ – was not deprived of his liberty in the bungalow in which he received round-the-clock care from staff.

The judge ruled that Ben was not under continuous supervision because his carers afforded him “appreciable privacy” and he was free to leave because, if he did go, his carers would seek to persuade him to return rather than coerce him. If he refused, a Mental Health Act assessment would be considered and if this proved unsuccessful the police would be asked to exercise their powers under section 136 of the Mental Health Act to remove him to a place of safety. Mr Justice Mostyn said that unless and until this happened, “Ben is a free man”.

That might not seem like a distinction that matters but it is real in legal terms. Mr Justice Mostyn was not making an indefensible judgment – all he was trying to do was say, “Whoa there! Professionals may need to think more rigorously before coming to the Court of Protection for approval of a state of affairs regarded as deprivation of liberty, rather than as proportionate restriction. This man is not free to leave.”

In Rochdale MBC v KW   Mr Justice Mostyn had ruled that a 52-year-old severely mentally incapacitated and physically disabled woman living in rented accommodation was not deprived of her liberty. He said her freedom to leave her home – in terms of going to live elsewhere – was not constrained because the extent of her disabilities meant that she could not exercise her rights. “She is not in any realistic way being constrained from exercising the freedom to leave, in the required sense, for the essential reason that she does not have the physical or mental ability to exercise that freedom. Soon she may not have the motor skills to walk even with her frame. If she becomes house-bound or bed-ridden it must follow that her deprivation of liberty just dissolves.

This would mean that anyone who was physically incapable of getting to the door, and mentally incapable of asking for help to get there and into a cab, was not deprived of their liberty.

It must be seen at once that this is wholly inconsistent with the case law as it has been developing. It harked back to the ‘relative normality’ test, which has been comprehensively rejected by the Supreme Court because it collapsed the distinction between the existence of a deprivation of liberty, and its justification.

The Court of Appeal accepted the position of counsel that this was an incorrect approach, but Mr Justice Mostyn has defended his position by saying that this was not the basis of the case; instead, he maintained, the principle was that the care being received in her own home, which was her right, based on her care assessment and care plan, as opposed to an imposed regime, should not be regarded as a deprivation of liberty.

The Court of Appeal’s decision to  allow the appeal without a hearing was strongly criticised by Mr Justice Mostyn in a second judgment on the Rochdale case issued in March. He said that the woman’s status was now ‘in limbo’ as the Court of Appeal had not declared that she was deprived of her liberty; only that if she were, that deprivation was now authorised.

Much as the Court of Appeal has said that their views about the need for the person always to be a party in the case, the non-appeal case mentioned above cannot be regarded as an appellate judgment because there was no jurisdiction to hear an appeal against an exercise on which Lord Justice Munby had no  jurisdiction to embark. Mr Justice Mostyn has said the same about the Rochdale case referring to the Rules of Court on allowing appeals by consent:

“There has to be a judgment explaining why my decision was wrong (no-one has suggested that it was procedurally unjust). But there is no judgment. Mr Fullwood agrees that the annex to the order is not a judgment. So I do not know why my jurisprudential analysis in this case as augmented in the Tower Hamlets case is said to be wrong. The narrative in the annex does not say anything other than that I was wrong, aside from a mere assertion that I made a material error as to K’s downward path in terms of her mobility, which, as I have explained above, was immaterial to my decision.”

Had he augmented his decision, in the Tower Hamlets case? That case involved a woman called TB, who had a moderate to severe learning disability. SA was her husband, and in fact, her first cousin. SSB was also TB’s first cousin and TB’s husband had taken her as a polygamous second wife. That marriage was valid under the laws of Islam but was completely invalid under UK law. Four children born to TB and SA in the past had been removed permanently from the parents and placed for adoption. Two daughters had been born through the second marriage.

Mr Justice Mostyn had found it would not be in TB’s best interests to return to live in her home with SA, SSB and any child, determining that she should instead live in supported accommodation provided by the applicant local authority, which either had to be improved, in terms of the long hours of downtime and lack of stimulation she was experiencing, or provided elsewhere.

On the question of whether the 24-hour care she needed would amount to a deprivation of liberty, he noted that TB would not be cared for at a place understood to be her home, and she had motor functions to achieve a departure in a meaningful sense. In that case, he said, since she will be monitored round the clock and were she to leave to try to go ‘home’ she would be brought back, her situation is therefore very different to the lady in the Rochdale case.  “Although I personally cannot see that her situation amounts to state detention in any sense other than by reference to the term of art devised by the majority in the Supreme Court, I must loyally follow that decision. I therefore declare that TB’s care regime does involve detention under Article 5 {of the Human Rights Act}.”

I do not think the learned judge has augmented his reasoning. He simply distinguished the case on the grounds that this lady would be monitored round the clock and would be able to leave and reasserted his own opinion that it should not be regarded as deprivation but then he reluctantly accepted that the acid test, of not being free to leave, was met. To my mind, this underlines why the Court of Appeal was correct to allow the appeal by consent.

Whatever I think about the breakdown of judicial politeness and increasing strains beginning to emerge, I have to agree with Mr Justice Mostyn that: “All this will cost huge sums, sums which I would respectfully suggest are better spent on the front line rather than on lawyers.”

So what next? The consultation proposals came out on 7 July and will take one year, and not two.  (Belinda will examine these in the autumn issue of Community Living).

Meanwhile, the ‘Baby Bournewood’ case of Re D, perhaps indicates a way forwards, for young people and people being cared for by their own relatives. In that case, involving a 15 year old, the factual regime clearly amounted to deprivation of liberty: the child was not free to leave, and the State was managing the regime. However, the decision was that it did not have to be authorised under the inherent jurisdiction of the High Court’s Family Division, because the parents had conscientiously and carefully authorised it, and the regime was benign.

This approach looks at first to conjure precisely the same legal dilemma as has arisen in the adult world: does the different situation of the disabled child – different from that of a normal child – mean that the regime is not a deprivation of liberty at all, after best interests consideration and consent from those with authority (which would mean that welfare deputies and lasting power of attorneys for welfare would also have that power, regarding adults) or does it mean that it is a deprivation of liberty but that it does not infringe Article 5 rights because it is consented to by someone with authority, ie here the parents?

To test this out, add a few months, and this boy becomes 16 – he may or may not lack capacity in terms of the Mental Capacity Act (at 15 he was regarded as not Gillick competent to consent for himself but had only a mild learning disability and some paranoid perceptions). Assuming he is MCA-incapacitated as well: would his regime have to be considered under the MCA welfare order route (DoLS not applying until he was 18, even though he was in a hospital)?

The legal answer depends on how you characterise the situation: not deprivation, because authorised by his parents – in which case, that route to avoiding having to go to court would still work for over 16 year olds, (excluding, of course, a case of Munchausen’s concerns or out-of-the-ordinary invasiveness by other-than-benign parents) – and the Court does not have to run a 24-hour service to allow for hearings for all those children.

An alternative approach is, ‘Yes, it is a deprivation, because of the objective confinement, and yes, it is authorised by dint of parental rights, until someone is 18 – but the more actively it offends the wishes and feelings of the young person (who will invariably be lacking in capacity for the MCA to be relevant at all) – the more important it is to get the matter to Court for Article 5.4 purposes. That is, there will need to be a judicial process in some, but not all cases – unless or until DoL Safeguards are formally extended.

With an over 18-year old, there would be nobody to consent other than the State, and that is why it is different, and DoLS was the best we could do. But an LPA or deputy for welfare could be given this power, subject to clear legal constraints, and the European Convention countries would no doubt breath a huge collective sigh of relief.

A judge might therefore say, “This does not engage Article 5 rights” or, if it still does, then “The nation’s economic wellbeing concerns when looking at parents’ Article 8 rights, have to be balanced against the Article 5 rights”, or that the deprivation does not ‘sound’ in European Convention or UK Human Rights terms because once authorised by the parent/attorney/deputy it is not imputable to the State.

* Judge makes second call for Supreme Court to reconsider Cheshire West due to “serious confusion” in law. Community Care, 12 June 2015.