Off the scale

Liberty is important, not least for the purposes of the new Deprivation of Liberty Safeguards. But what, in that context, does the word mean?

The Deprivation of Liberty Safeguards (DoLS) are intended to protect incapable people admitted to hospitals or registered care homes (see 'Whose Liberty', Solicitors Journal 153/6, 17 February 2009). As the title suggests, they say that permission will be required before such people can be deprived of liberty. Given the importance of the notion, you might imagine that 'deprivation of liberty' is carefully explained. It isn't: the DoLS use the term but don't define it, and the accompanying code of practice says little that is original. In fact, the code simply restates the existing law, which might be where the problems begin.

The DoLS seek to remedy defects identified by the European Court of Human Rights (ECtHR) in the Bournewood case. Those were defects in the common law, which the court said was too vague and too lacking in procedural safeguards to give many incapable people the protection demanded by the ECHR (HL v United Kingdom [2004] 40 EHRR 761).

The defects would only be apparent where article 5 of the Convention was engaged; where, in other words, someone was deprived of liberty. The ECtHR said 'the starting point must be the concrete situation of the individual concerned', and that, in deciding whether a particular intervention deprives someone of liberty, 'account must be taken of a whole range of factors arising in a particular case, such as the type, duration, effects and manner of implementation of the [intervention] in question'.

Crucially, the court said the distinction between deprivation of liberty, which will engage article 5, and a mere restriction upon liberty, which will not, 'is merely one of degree or intensity and not one of nature or substance' (HL v United Kingdom, paragraph 89). These words have proved extremely resonant.

The scale theory

The DoLS code draws heavily upon Bournewood. Noting the comments of the ECtHR on the crucial distinction, the code says: 'It may therefore be helpful to envisage a scale, which moves from 'restraint' or 'restriction' to 'deprivation of liberty'. Where an individual is on the scale will depend on the concrete circumstances of the individual and may change over time' (Department of Health, 2008, 'Deprivation of Liberty Safeguards: Code of Practice', paragraph 2.2).

There are, however, several problems with the 'scale' theory of deprivation of liberty. The first concerns its range: rather than with 'restriction of liberty', which surely comes some way along, shouldn't the scale begin with 'liberty' itself? Logically, of course, there must be a number of points on the scale, each one representing a particular intervention in a patient's life, from those that represent only a slight diminution of liberty to those that approach deprivation of liberty. But the number of possible interventions is not fixed; new ones might be made from time to time, and any of them might be modified in numberless ways. The second problem, therefore, is that we can never know precisely how to populate our scale. Imagining, as it seems we must, that the poles represent complete liberty and its deprivation, where on that scale are the various interventions to be placed, and, crucially, where in relation to each other? Is putting someone in a low chair closer to deprivation of liberty than to liberty, for example, and how does it stand in relation to shepherding someone away from an open door?

The third problem relates to something else said by the code: when deciding whether someone is deprived of liberty, we might ask: 'Does the cumulative effect of all the restrictions'¦ amount to a deprivation of liberty, even if individually they would not?' (ibid, paragraph 2.6). This begs an obvious question: if all we have is the scale, on which single interventions are placed side by side, how are we to take account of the aggregate of two or more of them? How, in fact, are we to aggregate them at all, and even if we succeed in doing so, where precisely are we to place the aggregated intervention? Is shepherding someone away from an open door closer to deprivation of liberty than putting him in a low chair and reducing the length of his visits from friends? How will the scale help us decide?

Finally, of course, there is the problem inherent in the very notion of a scale: all it does is display subtle progressions between two points, so it cannot help us with the DoLS. The knowledge that the use of 'baffle locks' tends rather more to the right-hand end than to the left is worthless. When what we most require is a 'yes/no' answer, the scale is deliberately designed to yield no such thing.

There is an alternative solution; one that is becoming common where the DoLS are used (or at least considered): to take the factors that suggest someone is being deprived of liberty and weigh them in the balance against interventions that are assumed to suggest the contrary. In that way, for example, the conclusion might be reached that a person placed in a low chair is not deprived of liberty today because he will see his friends tomorrow. Yet, though it might seem seductive, this act of balancing is also problematic, for it betrays a fundamental misunderstanding of the nature of liberty itself.

Liberty as an absolute

Among philosophers, there is surprising agreement about what liberty means. Even those who have very different views about its implications and, indeed, its derivation seem to accept that it is an absolute. For Thomas Hobbes, for example: 'Liberty, or freedom, signifies the absence of opposition ['¦] a free man is he that in those things which by his strength and wit he is able to do is not hindered to do what he has a will to' (Leviathan, 1651, chapter 21).

Generally, John Stuart Mill's views were different from those of Thomas Hobbes. That the two men shared a common view of the fundamentals of liberty, however, is clear from Mill's description of his 'harm principle': '[T]he only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant' (On Liberty, 1859, chapter 1). And, a century later, Isaiah Berlin wrote: 'I am normally said to be free to the degree to which no man or body of men interferes with my activity'¦ If I am prevented by others from doing what I could otherwise do, I am to that degree unfree; and if this area is contracted by other men beyond a certain minimum, I can be described as being coerced, or, it may be, enslaved '¦ By being free in this sense I mean not being interfered with by others' (Two Concepts of Liberty, 1958).

This notion that we enjoy full liberty until, and only to the extent that, it is taken from us, is acknowledged in prison law (if not in mental health hospitals: see 'Stubborn residue', Solicitors Journal 154/3, 26 January 2010). It would be surprising, therefore, if it did not obtain in the case of hospital and care home residents '“ the elderly or the profoundly learning disabled '“ who might be expected to form the majority of DoLS patients.

Implications

The implications of this analysis are significant, not least when hospital and care home managers, those that advise them and even judges have to decide whether someone is being deprived of liberty. It seems clear that interventions said to increase liberty cannot do so; at best, they simply ameliorate the diminution of liberty. This means that it is incorrect to say of a man that the possibility he will see his friends tomorrow prevents his being deprived of liberty today, even though he is currently sitting in a low chair out of which he cannot rise. The balancing exercise described above is of no assistance whatsoever.

If liberty is absolute, all that need concern us for the purposes of the DoLS (and for other purposes besides) are these diminutions of liberty, and the only question is whether, singly or in combination with others, they are so significant as to amount to deprivation of liberty (that much larger question is beyond the scope of this article). Furthermore, the purpose of such diminutions is irrelevant, as is the context in which they occur. So, for example, a person is as likely to be deprived of liberty in a high-dependency unit as on a learning disability ward, something the DoLS, and many of those who should apply them, seem reluctant to acknowledge.

Recourse to Thomas Hobbes and Isaiah Berlin might help answer a further problem raised in connection with the DoLS: what if a man has never been able to make use of his liberty? Do those caring for him have the additional, positive obligation to help him do so? Hobbes suggests not: '[W]hen the impediment of motion is in the constitution of the thing itself, we do not say it wants liberty, but the power to move; as when a stone lies still or a man is fastened to his bed by sickness' (op cit). And for Berlin: 'Coercion is not'¦ a term that covers every form of inability. If I say that I am unable to jump more than ten feet in the air, or cannot read because I am blind, or cannot understand the darker pages of Hegel, it would be eccentric to say that I am to that degree enslaved or coerced' (op cit).

The Deprivation of Liberty Safeguards are being used far less than even the government expected. That might be because they are complex, or even because, less than 12 months in, they are still unfamiliar. But it might equally reflect widespread ignorance about what it means to be deprived of liberty. That would hardly be surprising, for there is widespread ignorance about what liberty itself means. The code of practice only serves to compound the problem. It advances a 'scale' theory that is both logically and logistically flawed, and, in so doing, it misrepresents the problem it purports to have solved. The philosophical lessons of the last four centuries are clear enough: liberty cannot be weighed in the balance. It is something we have and might lose, not something we can only hope to achieve.