Close comfort

It is well established that there are two components to a deprivation of liberty for the purposes of article 5 of the ECHR. There is an objective element (actual confinement, for which the state is responsible, in a particular restricted space for a length of time which is not negligible) and a subjective element '“ lack of valid capacitous consent.

It is clear that there may be overlap between the elements, and that conditions may only be so restrictive that they amount to a deprivation of liberty when takencumulatively. But until now it has been thought that the purpose of restrictions is irrelevant when determining whether those restrictions amount to a deprivation of liberty.

However, a reconsideration of article 5 has been undertaken by the Court of Appeal which shifts this presumption. The case of P and Q (otherwise known as MIG and MEG) v Surrey County Council, CA, LA and the Equality and Human Rights Commission [2011] EWCA Civ 190 involved two young sisters challenging a Court of Protection matter.

Represented by the Official Solicitor, the girls argued that the judge at first instance had erred in finding that they were not deprived of their liberty in their current placements contrary to article 5 of the ECHR. P (MIG, aged 19) had a mental age of two and a half and a low to moderate learning disability, and lived in a foster home. Q (MEG, aged 18) had a mental age of four to five and a mild to moderate learning disability. She exhibited challenging behaviour and had some autistic traits and lived in a small residential home.

Both girls lacked the capacity to make decisions about their residence and care. They had suffered abuse and neglect at the hands of their mother and step-father, and may also have witnessed the repeated rape of their half-sister for which their step-father was subsequently convicted. P and Q were placed on the child protection register on three occasions due to non-accidental injury. Both were made subject to care orders, and in 2007 P was placed into a foster home, and Q moved first to the home of a respite carer, followed by a small residential home with three other people.

Although neither girl was locked in, both were subject to complete and effective control by their carers (a key factor in the breach of article 5 found in HL v UK [2004] 40 EHRR 761). Their contact with family members was restricted and for their own good they required escorts in the community at all times. In addition, Q was medicated to allay her anxiety, and at times subjected to restraint to manage her challenging behaviour.

At first instance (Re MIG and MEG [2010] EWHC 785 (Fam)), Parker J held that it was 'permissible to look at the 'reasons' why they are each living where they are'. She added: 'There are overwhelming welfare grounds for them not to live in their family of origin. In relation to both girls, the primary intention is to provide them each with a home'¦ In neither of those homes are they there principally for the purpose of being 'treated and managed'. They are there to receive care.'

This departs from the comments of Mr Justice Munby in JE v DE [2006] EWHC 3459 (Fam), in which he took issue with Court of Appeal dicta from the earlier case of PH [2002] EWCA Civ 1868. In PH, the court had held that, when assessing whether a deprivation of liberty existed, 'the purpose of any measures of restriction', such as 'if the measures are taken principally in the interests of the person who is being restricted', could be considered.

In response to this, Munby J held '“ I believe quite properly '“ that the court had confused 'both as a matter of logic and as a matter of legal principle, two quite separate and distinct questions: has there been a deprivation of liberty? And if so can it be justified?'

The right to liberty is fundamental, and so, unlike article 8, for example, justification alone cannot change a deprivation in fact to a position of liberty. Rather, there would have to be a procedure prescribed by law which permitted the deprivation under article 5 '“ possibly on the basis of the justifications identified '“ and a route to regular review of any consequent detention.

Irrelevant concerns?

In P and Q the Official Solicitor contended that when determining whether or not a deprivation of liberty existed, the judge had been wrong to take into account the fact that there were benign reasons behind the various restrictions on their liberty and the girls were happy in their environments.

The Official Solicitor argued that these factors and 'best interests' were legally irrelevant, being mere justifications for the deprivation of liberty. The Court of Appeal agreed that Mrs Justice Parker had attached excessive significance to the fact that the arrangements for P and Q were made to further their best interests. However, it held that a person's 'happiness' in relation to residential arrangements might be relevant to the question of what was in an incapacitated person's best interests. This must be correct.

One of the guiding principles of the Mental Capacity Act 2005 is that a decision made on behalf of a person who lacks capacity must be 'in his best interests' (section 1(5)). Section 4(6) of the Act requires decision makers to take into account an incapacitated person's 'past and present wishes and feelings' when considering what is in their best interests. Thus, the factors identified by Parker J were relevant to the lawfulness of any acts taken with respect to the incapacitated girls.

However, the Court of Appeal accepted that the girls' apparent 'happiness' with the arrangements could not be relevant as to whether or not the objective element '“ actual confinement attributable to the state in a particular restricted space for a length of time which was not negligible '“ was satisfied.

Nonetheless, it held that a person's objection to restrictions might be relevant when considering whether the objective element was satisfied because of the force and restraint that might be required to overrule their objections, and such subordination would cause them stress. On the other hand, an absence of objection would be likely to reduce conflict and was, therefore, similarly relevant (JE v DE and Others [2006] EWHC 3459 considered and approved).

The Court of Appeal also found that a benevolent aim was relevant, as was the relative normality of their daily life (their ability to attend college and maintain outside social contact). Parker J's conclusion on the existence or otherwise of a deprivation of liberty had been correct. Although Mr Justice Munby had been cautious in endorsing her view with respect to Q (whose case was closer to the borderline than that of P) in A v A Local Authority [2010] EWHC 978 (Fam), there had been no violation of article 5.

The small size of the residential home, Q's lack of objection, her attendance at the educational unit, her frequent contact with significant family members, and her opportunities for pursuing a fairly active recreational and social life were the main factors which prevented the engagement of article 5 in her case. The appeal, therefore, was dismissed.

Wilson LJ was careful to state that the Court of Appeal decision ignored as irrelevant the fact that if the appeal succeeded a huge volume of detention reviews beyond the Official Solicitor's capacity would be required to comply with article 5(4) ofthe ECHR. However, those practical and financial repercussions were unlikely to be far from the lords' minds. It is not difficult to imagine the ensuing chaos in the current economic climate had the Court of Appeal in P and Q overturned the decision at first instance, requiring local authorities to review regularly all those lacking capacity who lived with families or in non-registered care homes or placements.

I believe the separate judgment of Mummery LJ is perhaps more convincing than the reasoning for the Court of Appeal's conclusion on deprivation of liberty found in the main judgment. He acknowledged that, even though the local authority had rescued the girls from an abusive and neglectful

environment, protecting them from physical and emotional harm and therefore liberating them from previous conditions of deprivation and providing greater fulfilment and enhancing their freedoms, this could not impact upon whether their new arrangements amounted to a deprivation of liberty.

Indeed, it is unclear how the majority could have concluded that a consideration of the 'reasons' for certain restrictions differed in some way from taking into account the purpose of the restrictions, as Parker J found. An improvement in someone's living conditions cannot automatically lead to new and different conditions restoring a person's liberty. To make such a finding would be to confuse the question of whether a deprivation of liberty existed with the question of whether any deprivation of liberty in existence was lawful, as Munby J observed in JE v DE.

Treading carefully

Also worthy of discussion is the Court of Appeal's view that the use of medication would always be a pointer towards thelikely satisfaction of the objective element of deprivation of liberty (particularly if supplied by force) as it could suppress a person's liberty to express themselves as they would otherwise wish. Such a view is uncontroversial. However, it is not only medication which may lead to a person's inability to express themselves.

The very lack of capacity from which arises the necessity of restrictions '“ purportedly put in place in someone's best interests '“ may prevent an understanding that rights exist and may have been violated. That is precisely the reason why a benevolent aim can never convert a deprivation of liberty into freedom.

It is also a reason why the expression of objection to restrictions on liberty ought not to be a factor at all in determining whether article 5 has been breached.

Thus, extreme caution is required before attributing additional weight to a person's objection to conditions when determining whether restrictions amount to a deprivation of liberty.

The Deprivation of Liberty Safeguards (DOLS) were introduced into the Mental Capacity Act 2005 via the Mental Health Act 2007 to plug the 'Bournewood gap'. That gap arose from the inability of non-objecting incapacitated people who were deprived of their liberty to have their article 5 rights protected via review.

It was his lack of dissent which had led to HL's insidious, unprotected position in HL v UK. While the DOLS did not apply to the accommodation arrangements for P and Q (their placement being neither a hospital nor a registered care home) the Court of Appeal was wrong to consider that active objection was a factor to be weighed in the balance in considering whether a person was being deprived of their liberty.

Those least likely, or able, to complain about a violation of their rights most need access to a review of their detention. If a lack of dissent means that restrictions are less likely to be found to amount to a deprivation of liberty, English law appears to be regressing to the darker days of Bournewood.

Objection and consequent force and restraint are not factors relevant to assessing the existence of the objective element, but rather relate to the extent of damages required as just satisfaction for any violation of article 5.