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:
- Is the person subject to continuous supervision and control?
- 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.
Sources
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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