Liberty Protection Safeguards: Upholding Human Rights for the Mentally Incapacitated

Candacé Manske reflects on the current rights of incapacitated individuals under the Human Rights Act and whether Liberty Protection Safeguards will positively or detrimentally impact this area of the law.

In 2009 the Deprivation of Liberty Safeguards (DoLS) formed a solution with the aim to protect the rights of incapacitated individuals. These procedures were to form a solution which would safeguard individual when a deprivation of liberty is an unavoidable element of a best interests care plan.

However, criticisms have been raised since the DoLS have been made, notably during the Cheshire West case in 2014. As a result, and following a review of the DoLS scheme performed by the Law Commission, Liberty Protection Safeguards (LPS) are due to replace the DoLS in the near future.

The Cheshire West Case

The right to liberty and security is protected by Article 5 of the Human Rights Act 1998, and this includes within the scope of the article those who are detained under mental health laws. 

At the heart of the Cheshire West case, an individual known as ‘P’ was the subject of a legal argument which aimed to more define ‘deprivation of liberty’ and the ways in which safeguards should be put in place to protect incapacitated adults Diagnosed with multiple conditions and unable to make decisions about his own welfare, P lived with his mother. Social services became aware of this situation a dispute arose which questioned if moving P into a care home was an act depriving P of his liberty and if this needed court authorisation.

In the case of ‘P’ a two-question test was referred to. This test determined if a person was deprived, or not, of their liberty. These two questions being:

1. Is the person subject to continuous supervision and control?
2. Is the person free to leave? (It should be noted that this does not mean, ‘Does the person want to leave’ but rather how to deal with them if they did want to leave.

Each case affected by a potential deprivation of liberty must be considered individually, but further questions were added to the ‘acid test’, which evoked subjects such as the use of medication to control behaviour, physical restraint and isolation of the person, objections from family or others to restrictions and restraints, and unstable placements of individuals. Furthermore, possible challenges to restrictions as aforementioned were evoked following this case, such as those which may occur in the Court of Protection.

In relation to human rights, it’s important to underline the fact that even with its complexity, the DoLS did have as objective to maintain the rights of those who were unable to make their own decisions.  The transition towards the Liberty Protection Safeguards is meant to further reinforce this concept, as well as make it easier for family and friends to be involved in the care of the person who is incapacitated.

In the original proceedings of the Cheshire West case, Mr Justice Baker based his reasons on guidance within another case (P and Q v Surry County Council [2011] EWCA Civ 190), outlining the objective elements of a deprivation of liberty. It was therefore ruled by Mr Justice Baker that P was indeed deprived of his liberty and should be the subject of reviews made by the Court of Protection.  Appealed by the local authorities of Cheshire West and Chester Council, this case then moved to the Court of Appeal. It was then ruled that P was not deprived of his liberty, and it was necessary to consider the reason why P had been placed where he was, and to then compare the “normality” of his situation, this being linked to the guidance provided under the same case of P and Q v Surry County Council.

The case was yet again appealed by the Claimant and brought to the Supreme Court in 2014. The main argument being the fact that P was indeed not free to leave his care home, and thus deprived of his liberty.  The reasons argued by the party representing P evoked the fact that the reason P was placed in the care home, nor the “normality” of the placement were not relevant to the case.

P’s case had significant implications in the field of health and social care, since it was hence defined that anyone meeting a definition for mentally incapacitated, will be deemed deprived of their liberty.

What will change with the Liberty Protection Safeguards?

A main objective of the change towards the Liberty Protection Safeguards includes proposed changes to include assessing capacity, the role of the Court of Protection, and interference by the Mental Health Act 1983 and the Mental Capacities Act 2005. Furthermore, the definition of what exactly is a deprivation of liberty and what is the process authorising this deprivation of liberty is further examined. Compliance with the law will be even more ensured, as will improved care and treatment, including people aged 16 and 17.

By better integrating the criteria for applying to the LPS scheme, it is intended that LPS will provide enhanced outcomes for persons deprived of their liberty, as well as their family and unpaid carers. Moreover, both Articles 5 and 8 of the Human Rights Act 1983 will be upheld more firmly by centralising the affected person in the decision-making process. 

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Sources

P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & Anor [2014] UKSC 19

Re v MIG and MEG [2010] EWHC 785 (Fam)

‘What are Liberty Protection Safeguards?’ (Social Care Institute for Excellence, October 2022) https://www.scie.org.uk/mca/lps/latest#:~:text=LPS%20will%20be%20about%20safeguarding,accommodation%20and%20their%20own%20homes accessed 20 November 2022

‘Deprivation of Liberty Safeguards (DoLS) at a glance’ (Social Care Institute for Excellence, May 2015, November 2020, October 2022). https://www.scie.org.uk/mca/dols/at-a-glance accessed 20 November 2022

Photo Credit: Court sketch by Isobel Williams.

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‘DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.’

Are the legal systems, government and organisations in Bangladesh taking disability cases seriously, especially for women who are disabled?

Tasfiah Rahman reflects upon how diasability cases in Bangladesh have been handled in the past, how this has changed over the years, and a discusses a way forward, focusing especially on disabled women’s rights.

Bangladesh has adopted the definitions of disability from WHO 2004 and the Convention on the Rights of Persons with Disabilities 2006, stating that disability is an umbrella term that covers impairments limiting human activities and participation restrictions.¹ There are people who are born disabled and there are some who become disabled due to natural disasters, road accidents, social and family violence, malnutrition, unavailability of vaccinations and congenital malformation.² 

Why should the topic of disability be taken seriously? 

Many communities shy away from the topic of disabilities such as discussing the inability to do certain tasks in our daily life will somehow be signified as weakness. This should strongly not be the case. Bangladesh, being a developing country for years, is still in the process of changing so many past norms and cultural beliefs that have discriminated against many of their own members of the community. People with disabilities have been hidden behind the curtains and this slowly has to change where they feel included and ready to be heard. Human Rights Watch has highlighted the psychosocial impact of the disabled being constantly anxious, depressed, suffering from post-traumatic stress, psychological distress, and enduring fear for how they’ve been treated for years.³ These psychosocial impacts are exacerbated by what is often a prolonged and expensive justice process, during which victims can face re-traumatization, recurring medical fees, economic hardship, stigma, lack of support, and sometimes threats to drop their case.⁴ 

Disability cases in the past 

It took many years for the courts and the government to take disability cases seriously as many courts wouldn’t even consider taking in a disability case. BLAST and another vs. Bangladesh and others (1998) was a case about  Muhammed Sarwar Hussain Khan, a person with visual impairment. He filed a writ petition challenging a circular issued by the Minister of Establishment.⁵ The writ petition stated that there was no reservation for physically disabled persons in the first and second class post of the services of Government.⁶ This case was unfortunately disposed as it was unsuccessful on calling upon the Ministry of Establishment and⁷ the Ministry of Social Welfare to show cause why the impugned circular amending the reservations for persons with disabilities for direct employment in government services.⁸ 

Women who have dealt with disabilities in the past 

More dilemmas are seen in communities with arranged marriages. A Bangladeshi client, Amina, had learning difficulties where she had difficulty grasping knowledge compared to others was in a complicated scenario with her family. F Hepper considers how Amina being trapped in the norms and cultural ritual of an arranged marriage with learning difficulties is brutal.⁹ Amina lacked the capacity to participate in school lessons with her siblings which led her to live in a more protected and sheltered existence at home with her mother.¹⁰ Her parents thought marriage would solve her issues. The obstacles which women and girls faced in the past legal system, especially with disability, still have a long way to go.¹¹ 

 Disability resulting from an acid attack can also severely impact a woman’s ability to perform physical work that she previously may have been able to do, thus cutting off an important component to financial independence. Acid Survivors Foundation has provided free and long-term medical care and socioeconomic rehabilitation to thousands of acid attack survivors in Bangladesh.¹² However these services have often been unavailable to victims of gender-based violence because of under-resourced groups and limited state facilities.¹³  As the number of acid attacks have decreased, attention to acid violence has waned and donors are losing interest, leaving ASF with fewer resources to fill these needs.¹⁴ 

Women and girls are almost invariably among the poorest, most oppressed and excluded members of society. Negative attitudes, and environmental and institutional barriers have made them a vulnerable and neglected section of society. Children and adults are frequently prevented by law and in practice from realising their social, political and economic rights. Women are particularly subject to becoming victims of family violence. Furthermore, both adults and children are often excluded from opportunities to address their own concerns because their problems are primarily discussed from a medical or welfare perspective. 

Recent disability cases in Bangladesh 

The most recent Act which was enacted by the government of Bangladesh is the Rights and Protection of Persons with Disability Act 2013 in line with the United Nations Convention on the Rights of Persons with Disabilities. However, there were questions under this Act in the case of BLAST, NGDO and NCDW v Bangladesh and Others  (2015) as this act was not properly applied here.¹⁵ Section 31 of the Act provides registration and issuance of identity cards to persons with disabilities, and further states that no persons with disabilities will be able to secure any protections under the Act without such a card.¹⁶ Section 36 prohibits discrimination based on disability and provides for remedies against such discrimination, including compensation.¹⁷ However one and a half years since the passage of this law, no gazette notifications  were published bringing into force Sections 31 and 36.¹⁸ There have been many other cases that have been disposed of or kept pending for years.¹⁹  In the mentioned case, the court could not  give it valuable time to come up with a decision especially for the people who are struggling with their disability here.²⁰  

The question now arises whether this is still the same situation in the modern era where the laws are more developed. In 2020 the government passed the National Building Construction Act.²¹ This act requires physical structures to be made accessible to those with disabilities.²² However, the government did not implement the law effectively as the government still did not them provide with accommodations or pay their rent.²³ The law calls for the establishment of local committees to expedite implementation of the law, but most committees had not been activated. ²⁴ The law requires persons with disabilities to register for identity cards to track their enrollment in educational institutions and access to jobs.²⁵ This registration allows them to be included in voter lists, to cast votes, and to participate in elections which is a big step.²⁶  

How Post Covid has affected the disabled and a way forward 

People with disabilities have also been affected by COVID-19 during 2020 to 2021, have faced multiple layers of deprivation during this period with shrinking economic activities and fear of hunger.²⁷ Support provided by the government and others is not easily accessible.²⁸ The International Labour Organisation  has reported that the risk in the response to the current crisis is that people with disabilities will be left behind once again.²⁹ A report on ‘Covid-19 Impact on Vulnerable Groups: People with Disabilities’ by Innovision, a research based non-governmental organisation, shows that 74 per cent of people with disabilities in Bangladesh have lost all of their income sources.³⁰  

Sightsavers has identified a number of focus areas for influencing the government and donor agencies to take adequate measures, protecting people with disabilities from the short-term and long-term adverse impacts of COVID-19.³¹ To start off, developing a policy and budget allocation in consultation with people with disabilities and their representative organisations would really benefit their health.³² Using sign language and accessible web content in all campaign activities/press conferences on COVID-19 and making websites of the ministry of health and family welfare especially for deaf/blind people could very much help them in helping them gain knowledge about their situation.³³ 

Again, prioritising women and girls with disabilities in any specific initiatives for women, including sexual and reproductive health services, by ensuring them adequate water, soap and menstrual supplies is an important solution here.³⁴ There are other steps taking place, including a government directive to the Association of Private Employers to prevent people with disabilities from losing jobs due to COVID-19.³⁵ Furthermore, providing loans to people with disabilities with low interest rates to resume their businesses can also make a huge impact in their lives.³⁶ 

Photo credit:”FM speaking at the 8th session of the Conference of States Parties to the Convention on the Rights of Persons with Disabilities” by Estonian Foreign Ministry is licensed under CC BY 2.0.

‘DISCLAIMER: THE BPP HUMAN RIGHTS BLOG, AND ALL PIECES POSTED ON THE BLOG, ARE WRITTEN AND EDITED EXCLUSIVELY BY THE STUDENT BODY. NO PUBLICATION OR OPINION CONTAINED WITHIN IS REPRESENTATIVE OF THE VALUES OR BELIEFS HELD BY BPP UNIVERSITY OR THE APOLLO EDUCATION GROUP. THE VIEWS EXPRESSED ARE SOLELY THAT OF THE AUTHOR AND ARE IN NO WAY SUPPORTED OR ENDORSED BY BPP UNIVERSITY, THE APOLLO EDUCATION GROUP OR ANY MEMBERS OF STAFF.’ 

Case Summary: R (on the application of SH) v Norfolk CC and another [2020] EWHC 3436

Sachin Varma provides a summary of a recent case discussing Article 14 of the European Convention on Human Rights.

On 18 December, 2020 the High Court of Justice Queen’s Bench Division Administrative Court (Mr Justice Griffiths) allowed a claim for judicial review against Norfolk County Council and the Secretary of State for Health and Social Care. The claim was brought by SH, who is severely disabled. SH argued that she had been disproportionately affected by a change to Norfolk CC’s Charging Policy for council-provided care. The Council attempted to justify this change using arguments such as increasing independence, fairly distributing resources, following the statutory scheme and having an efficient charging policy. These aims, while legitimate, did not objectively justify the difference in treatment that SH experienced.  Mr Justice Griffiths found that Norfolk CC “exercised its discretion to charge SH the maximum permissible, and, at the same time, has lowered the overall cap on her charges by reducing the Council’s minimum income guarantee” (MIG) (para 36).

Parties

The Crown was the claimant, on the application of SH (acting through MH, her litigation friend). SH has Down Syndrome resulting in learning difficulties, pernicious anaemia, physical disabilities as well as a weakened immune system. As a result, she is unable to engage in any long-term work except her unpaid work experience where she folds serviettes for an hour.

The respondents were Norfolk County Council and the Secretary of State for Health and Social Care. As per the Care Act 2014, the Council provides care and other support services (including welfare) to SH. The Council also charges SH a proportion of her income for these services. The change in the way the Council calculates these charges (“The Charging Policy”) has led to the claim.

Facts

The Charging Policy

SH’s income consists entirely of the Employment Support Allowance (“ESA”), Personal Independence Payment (“PIP” – daily living) and the Personal Independence Payment’s mobility component. The sum of these payments as per April 2020 was £282.05 per week.

The cause of the claim revolves around the change to the Council’s charging policy. The Council, to calculate the charges, takes into account SH’s ESA – which is not challenged. They also take into account the daily living component of her PIP and as such reduced her minimum income guarantee to £151.45 per week.

This new calculation (using the daily living component of her PIP) and new MIG was challenged by SH.

Claim

SH applied for judicial review on the basis of two grounds:

1. The Charging Policy enacted by the Council discriminated against severely disabled individuals which violates Article 14, read with Article 1 of Protocol 1 and/or Article 8 of the European Convention on Human Rights.
2. The Council’s Charging Policy indirectly discriminates against adults with Down Syndrome, going against section 19 and 29 of the Equality Act 2010.

Due to Grounds 1 and 2 being overlapping considerations the Court’s arguments focussed primarily on Ground 1.

Relevant Human Rights Law

• Section 6 of the Human Rights Act 1998: it is “unlawful for a public authority to act in a way which is incompatible with a Convention right”
• Article 1 of the First Protocol to the European Convention on Human Rights (“A1P1”)
  • “Protection of Property – Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law”
• Article 14 of the Convention
  • “Prohibition of discrimination – the enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Judicial Approach

Mr Justice Griffiths followed the legal test set out in In re McLaughlin:

(1) Do the circumstances “fall within the ambit” of one or more of the Convention rights?

As per R (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 311, welfare benefits fall within the ambit of A1P1. As a result, stage 1 of the test is satisfied.   

(2) Has there been a difference of treatment on the ground of one of the characteristics listed in A1PI or “other status”?

SH argued that as a severely disabled person she is entitled to a greater amount of financial support from the council than for a less disabled person. Firstly, as a severely disabled person she has high care needs. Secondly, she has significant barriers to work as demonstrated by her entitlement to ESA without being required to engage in a work-related activity under Regulation 34 (ESA Regulations). The fact that she is entitled to this benefit shows how she is treated differently to other non-severely disabled individuals.

The next stage was to determine whether ‘severely disabled’ qualifies as “other status” under Article 14 ECHR.

According to R (RJM) v Secretary of State for Work and Pensions [2009] 1 AC 311 “status” is given a “generous meaning” (para 42-43).  Clift v United Kingdom [2010] ECHR 1106, highlights that the “question whether there is a difference of treatment based on a personal or identifiable characteristic…is… to be assessed taking into consideration all of the circumstances of the case” (para 60).  Accordingly, the court found that “severely disabled” does qualify as a “personal characteristic”.

The next step was to consider whether the status of being “severely disabled” is sufficient for the court to allow a claim for a breach of Article 14 on the grounds of discrimination under “other status”. This was discussed most recently in O’Donnell v Department for Communities [2020] NICA 36; “the spouse of a deceased who was severely disabled” who was unable to claim Bereavement Support Payment was accepted as an “other status” to allow a claim for Article 14.

(3) Differential treatment: Has there been different treatment between two persons who are in an analogous situation?

The court found that the two persons were, firstly, SH and secondly, all others being charged under the Charging Policy. The Charging Policy resulted in SH being charged significantly more than those who are not severely disabled.

The Council argued that there was no differential treatment because the Charging Policy was applied to everyone in the same way. However, the court made the point that they were not looking at the implementation of the rules but rather the actual effect the rules have. As a result, they could be challenged under Article 14. 

(4) Is there an objective justification for the difference in treatment?

Bank Mellat v HM Treasury (No2) [2014] AC 700 (para 68-74) provides the fourfold legal test:

1. Whether the objective of the measure is sufficiently important to justify the limitation of a protected right
2. Whether the measure is rationally connected to the objective
3. Whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective
4. Whether balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter

The court found:

1. The council’s objectives (apportioning the Council’s resources, encouraging independence, to have a sustainable charging regime and to follow the statutory scheme) were not sufficiently important to justify discriminating against the most severely disabled (R (TP)  v Secretary of State for Work and Pensions [2019] PTSR 2123, para 53).
2. The discriminatory impact was not rationally connected to the objective. The Council has not made an attempt to justify the impact of the Charging Policy on the severely disabled.
3. A less intrusive measure was not considered sufficiently by the Council although it was highlighted in The Guidance (Care and Support Statutory Guidance).
4. The discriminatory effect was “unnecessary and wholly out of proportion” (Para 93) in relation to the objective.

Held

The court accepted SH’s claim and granted relief.

Comment

The legal argument in the case confirms the recent test for Article 14 as outlined in R (Stott) v Secretary of State for Justice [2018] UKSC 59; [2020] AC 51 and to a greater extent In re McLaughlin [2018] UKSC 48; [2018] 1 WLR 4250. The four-stage test outlined in these cases has now become the legal standard for Article 14 cases.

From a human rights perspective, this demonstrates the utility that Article 14 ECHR has for individuals protecting themselves against public authorities’ policies which may allow disadvantaged people to ‘fall through the cracks’. Hopefully, the decision in this case will help to mitigate that possibility in future.

Image Credit: People protesting outside Norfolk County Council in 2015 (Roger Blackwell/Flickr)

Disclaimer: The BPP Human Rights blog, and all pieces posted on the blog, are written and edited exclusively by the student body. No publication or opinion contained within is representative of the values or beliefs held by BPP University or the Apollo Education Group. The views expressed are solely that of the author and are in no way supported or endorsed by BPP University, The Apollo Education Group or any members of staff.