Health: Deprivation of Liberty Safeguards

Lord Hope of Craighead Excerpts

Monday 16th March 2015 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, it is customary on these occasions to congratulate the first speaker on having obtained the debate to which we are privileged to listen. However, I think that it might also be right on this occasion to commiserate with the noble Baroness, Lady Finlay, partly because of the small number of noble Lords who have put down their names to speak but also because, in a way, much of the force of what was to be discussed was taken away by the debate to which she referred, which took place on 10 March, last week. There were 10 speeches on that occasion, including a speech by the noble Baroness herself, a speech by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and a speech by the noble Baroness, Lady Hollins, who I am glad to see in her place. The noble and learned Lord, Lord Brown, indicated to me earlier that he thought he would be unable to be present this evening, although I see that he is in his place just now, for a while at least.

As the debate today is directed to the decision of the Supreme Court in the Cheshire West case, I felt that I should step into the breach and put down my name, but I emphasise that I have no expertise in mental health law, nor do I have any knowledge of the operation in practice of applications for authorisation under Section 16 of the 2005 Act or the deprivation of liberty procedures under Schedule 1A for those detained in hospitals and care homes. Given those shortcomings, I felt it might be helpful if I said a few things about the judgment itself, about the test which it lays down and, as far as I can, on what is to be done about the case, although I am not sure that I can answer all the questions in the noble Baroness’s exam paper which she set before us a few moments ago.

The judgment itself is very interesting from the juridical point of view because it is one of those rare examples of the court going further than the Strasbourg court has done. There is a great deal of debate about the relationship between the United Kingdom courts and the Strasbourg court, and most of those debates concentrate on the other side of the coin, which is giving effect to or following Strasbourg, when people say that we should be more robust and not do so. This is a quite different thing. This is stretching the application of the convention rights beyond what Strasbourg has thought it right to do and has yet had to consider by cases that have come before it. There are some who point out that that gives enormous power to the judges to, in effect, create law. This is perhaps an example of that. I am not criticising the court for doing that, but it is an interesting example of a rather unusual situation.

It was a majority decision of four to three—a borderline decision, as the noble and learned Lord, Lord Brown, said, but a decision it was. I entirely agree with the noble and learned Lord that it is not for us to say how we would have resolved it. We take the decision as it stands. It is worth recording that the noble and learned Baroness, Lady Hale, who wrote the leading judgment for the majority, was without doubt the best qualified of all judges to express an opinion on the subject. She has made a study of mental health law over many years and is the author of a leading textbook on the subject. She is also pre-eminent among our judges in her understanding of human rights law. The issue could not have been in better hands so far as the law was concerned.

It is a feature of that case, however—it happens from time to time when one looks at decisions taken by judges—that they were not concerned with the practical implications of their judgment. They may give guidance, but it is not their responsibility to see how that would be done, what it would cost or what has to be done to give effect to it. In a sense, that is their luxury. Their task is to say what the law is. The matter is then passed to the Executive—the Government—to find the money and give effect to what the law requires. That is where we are now.

There are questions, of course, as to what the law as laid down in the judgment requires. The essential point, which the noble Baroness, Lady Finlay, mentioned, is that the situations do not enable one to distinguish between people of sound mind and those of unsound mind. Human rights are the same for everyone. The word “everyone” appears repeatedly throughout the European convention. There is a difference between a mere restriction and a deprivation of liberty. It is a question of fact and degree. Of course it depends on the situation of the person concerned. The situation where a person is detained on the authority of the state in a hospital or a care home really does not give rise to any problem, because it is obvious that that is a deprivation of liberty. In that case, the DoL procedures must be applied.

The difficult cases are those with which the judgment was especially concerned: people of unsound mind in benign situations with foster parents in a home setting, on the one hand, so that they can lead as normal lives as possible, or with live-in carers, on the other, for the same reason. Addressing that issue, the noble and learned Baroness, Lady Hale, said that the concept of physical liberty is the same for them as for anyone else, regardless of their mental or physical disability. The right at issue is a right not to be deprived of that physical liberty—whether that person is free or not free to come and go as he or she pleases. Where a person is by reason of an action taken by the state—I emphasise that we are talking about state interventions, not interventions by parents exercising their ordinary parental responsibilities—the question is whether that situation is one where they can properly be said to be deprived of their liberty. That is so however benign the environment they are in and irrespective of whether they actually want to break loose and leave the situation on their own initiative. As the noble and learned Baroness, Lady Hale, put it in paragraph 56,

“it is the constraints that matter”.

However, the question is still left in the air as to how far this judgment goes. The noble and learned Lord, Lord Brown, addressed that issue in his speech last Tuesday. He said:

“It can fairly be said that the facts of those three cases represent about the furthermost examples of what the English courts …would conclude involves a deprivation of liberty”.—[Official Report, 10/3/15; col. 632.]

When one considers the nature of the places where those concerned were living, the noble and learned Lord must be right about that. Indeed, he also said that the borderline between restriction and deprivation of liberty is quite a narrow one. Those cases lay at the extreme limits.

The facts will vary from case to case, and one has to face the situation that the facts of those two cases must not be taken as definitive. Indeed, when the noble and learned Baroness, Lady Hale, was writing about this she said that we should err on the side of caution in dealing with the situation of people of extreme vulnerability. It is quite striking that she rejected an invitation to lay down an acid test for the deprivation of liberty. What she did instead was to set out certain things that are not relevant. For example, the person’s lack of objection is not relevant. The normality of the situation in which they are placed is not relevant. The reason or purpose behind a particular placement is not relevant. But what we do not find in the judgment is an answer to the kind of questions that, understandably, the noble Baroness is raising as to where exactly the line should be drawn.

The noble and learned Lord, Lord Brown, did venture on this point, too, but I am not sure that I agree entirely with what he said. He made a distinction between long-term placements of unsound mind and situations in which people are placed that are the result of a terminal or emergency situation. I can agree with him about terminal situations and emergency situations, because the timeframe is necessarily short, but I am a little uneasy about the phrase “long-term placements”, which was a point addressed by the noble Baroness. One could have situations that are meant to be temporary but involve the deprivation of liberty. They may be quite short term—a matter of two or three weeks or a month or so. In those cases, it looks as though, if there is a deprivation of liberty, the procedures must be applied. That illustrates the problem pointed to by the noble and learned Baroness, Lady Hale, about trying to draw any kind of precise line to be able to say when a situation is caught and when it is not. Each case must be taken on its own facts.

The question then is what needs to be done. I recognise that there are limits to what the Minister can say in the dying days of this Parliament. He cannot commit very many people to what can be done in the next two or three weeks. But one or two points may be made and he may be in a position to say something about them. The first is in relation to the Government’s reaction to the Select Committee report, which was mentioned by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. The paragraphs that are relevant in that response are paragraphs 7.26, 7.27 and 7.31. I will not read them out because they are available to everyone. But the Government get full marks for accepting that there is a pressing area that needs attention in the matter of community care arrangements of the kind involved in the case of Cheshire West. There is a pressing need here and a new legal framework needs to be designed in order to deal with that problem.

The difficulty I have is that the solution that has been adopted is to ask the Law Commission to undertake a review. It is recognised in paragraph 7.27 that this work will not complete for a few years. That seems to come close to kicking the matter into the long grass. I quite see that one wants some kind of informed approach to this issue but to look at dealing with it in terms of years rather than doing so in the relatively short term seems to be rather unfortunate. Surely something could be done more immediately. The point is raised in a paper on the impact of the judgment circulated by the Local Government Association, which draws attention to the increasing burden on councils which are already concerned about the affordability of the Care Act and calls on the Government to commit fully to funding all the burdens that rest upon them. The association also calls for a change in the law for people lacking capacity who need supervision and need to be in supported living environments. It wants action to be taken in the short term in various respects to enable the matter to be addressed.

The noble and learned Lord, Lord Brown, made the same point at the end of his speech last week and I endorse exactly what he said. Can the Minister explain a little more whether any thought is being given to addressing these problems as a matter of urgency rather than waiting for a matter of years for the Law Commission to report and no doubt further years after that for further legislation to be introduced?