MIG and MEG: reported facts

MIG and MEG were sisters, each with intellectual disabilities, who had been removed from their parents’ care in public law child protection proceedings. Their case came before the Court of Protection when they reached 18 and 17, respectively, as they were considered to lack the mental capacity to make decisions about their care. At that time, MIG was still living with her foster mother, but MEG’s foster care had broken down and she was moved into ‘an NHS facility, not a care home, for learning disabled adolescents with complex needs’ (Cheshire West, UKSC, [14]).

‘Continuous supervision and control’ were exercised over MIG and MEG by their caregivers. In MIG’s case this was said to be because she had little awareness of danger, for example of road safety. In MEG’s case this was partly connected with ‘challenging behaviour’ and ‘outbursts’ directed toward other residents. MEG was sometimes physically restrained by caregivers; MIG was not (Surrey County Council v MEG & MIG v Anor [2010] EWHC 785 (Fam), [210], [215]). MEG was prescribed Risperidone, a sedating antipsychotic drug of a kind considered overprescribed and harmful for people with intellectual disabilities and dementia (Banerjee, 2009; Harding and Peel, 2013; NHS England, 2017). Neither MIG nor MEG chose their placements, nor were they free to leave at will if they tried to do so (although neither had). Both attended a college, and MEG was said to have a more active social life than her sister. Their contact with family was restricted by court order.

In litigation concerning their care arrangements, the OS queried whether they were deprived of their liberty. At trial, Mrs Justice Parker ruled that neither was (Surrey County Council v MEG & MIG v Anor [2010] EWHC 785 (Fam)). The OS appealed and, in P & Q v Surrey County Council [2011] EWCA Civ 190, the Court of Appeal upheld Parker J’s decision.¹

P: reported facts

P had intellectual disabilities and cerebral palsy and had been living with his mother. When her health deteriorated the local authority concluded she was no longer able to care for him and sought a judicial declaration that it was in his best interests to live in a ‘care setting’, known as ‘Z House’. The judgments do not explain why the local authority sought this declaration; usually an application of this nature is made because somebody (often a relative) objects to the proposals.

P lived in a ‘spacious bungalow’ with four other residents. He received continuous support from two members of staff, with additional staff for outings, such as to a day centre, hydrotherapy pool, a club, the pub and shops. He saw his mother regularly. P used a wheelchair for longer distances. He was doubly incontinent. His mother had ‘allowed’ him to be naked (Cheshire West and Chester Council v P & Anor [2011] EWHC 1330 (Fam), [8]). However, in Z House he wore incontinence pads, but he would pull at these, shred them, and sometimes put them in his mouth. On occasions that included faecal matter, and it presented a risk of choking that had once required a hospital admission. To manage this risk, staff would physically restrain P (although they referred to this as ‘first aid’ and they had no restraint training or policy), sweep his mouth to remove the contents, and clean and change him. P would ‘attempt to fight against staff during these interventions’ (Cheshire West, EWHC, [9]). A court-appointed independent social worker recommended that P wear a body suit with a zip at the back to prevent him accessing the pads. P was also described as having a ‘long history of challenging behaviour’, including being ‘uncooperative’, throwing things, self-injury, and on occasion assaulting others (Cheshire West, EWHC, [11]).

The OS represented P and argued that he was deprived of his liberty. At trial, Mr Justice Baker agreed that he was (Cheshire West and Chester Council v P & Anor, EWHC). The council appealed and Lord Justice Munby ruled that P was not deprived of his liberty (Cheshire West and Chester Council v P [2011] EWCA Civ 1333). P’s case was then conjoined with MIG and MEG’s in the appeals to the Supreme Court in P v Cheshire West and Chester Council and another; P and Q v Surrey County Council [2014] UKSC 19.

Deprivation of liberty as removal from the family and home

An early and consistent theme in the litigation equated deprivation of liberty to removal from home and family. ‘Family’ was construed broadly, encompassing Mr and Mrs E – HL’s (paid) carers in the community – and foster parents (G v E, A Local Authority & F [2010] EWHC 621 (Fam)).

The first post-Bournewood domestic case on the meaning of deprivation of liberty concerned DE, an older man with dementia and physical and sensory impairments, who had been cared for by his wife, JE (JE v DE & Ors [2006] EWHC 3459 (Fam)). Unable to cope, JE had placed DE in a chair on the pavement outside their home and called the police. Surrey County Council had placed DE in a care home and prevented him from returning home, as both DE and JE later wanted. Paul Bowen, the barrister who had acted for HL and the Rampton smokers, represented JE and argued that DE was deprived of his liberty. The OS, representing DE, concurred. The council, however, argued that DE was in an ordinary care home, not subject to the ‘controls’ and restrictions HL had been. He went on outings and had ‘as much choice as possible about his day-to-day life within the constraints of his disabilities’ [105]. JE and DE’s complaint, however, was not with his everyday care, but his desire to return home, describing him as a ‘prisoner’ [90], [91], [95]. Mr Justice Munby concluded that the critical question was less whether DE’s freedom or liberty was ‘curtailed within the institutional setting’, than whether he was ‘deprived of his liberty to leave the X home’ – not for a trip or an outing, but ‘removing himself permanently in order to live where and with whom he chooses’, and specifically with JE [115].

The first rule of the ‘deprivation of liberty’ game, therefore, was that it concerned the macro-question of whether a person could return to an already existing home, not the micro-details of restrictions or institutional life. During the passage of the DoLS the Parliamentary Joint Committee on Human Rights (JCHR) (2007: [89]) had proposed a statutory definition of deprivation of liberty, as a person being ‘taken from their home to a place where they will be prevented from leaving, and complete and effective control will be exercised over their movements’. This definition made sense of how HL could be deprived of his liberty in hospital, yet not while living with Mr and Mrs E where – his legal team noted – he would still be subject to ‘continuous supervision and control’ to keep him safe (Robinson and Scott-Moncrieff, 2005: 23). The government, however, preferred to remit the thorny question of the meaning of deprivation of liberty to the courts instead of adopting a statutory definition.

The deprivation of liberty jurisdiction provided formal procedures for disputes between families, care recipients and public bodies over where a person should live. This framing positioned the jurisdiction as ‘safeguards’ against the formidable welfare–incapacity complex, tools for resistance by families, leaning heavily on discourses of human rights and legalism. This perspective on the jurisdiction is embodied by the widely reported case of London Borough of Hillingdon v Neary [2011] EWHC 1377 (COP). Steven Neary was a young autistic man who had been living with his father, Mark Neary, who employed personal assistants to support Steven’s activities and interests. Steven had been temporarily admitted to respite care in January 2010 while his father recovered from flu. However, the council refused to allow Steven to return home when his father recovered, asserting that his behaviour was ‘challenging’ and required input from a specialist ‘behaviour support unit’ run by Hillingdon Borough Council. Steven became increasingly distressed in the unit (a care home), and four months into his stay he escaped. After he was brought back his outside activities were cancelled, new locks and alarms were fitted to the building, and the unit applied for a DoLS authorization.

A BIA assessed it to be in Steven’s best interests to remain there but did not consider his distress nor whether it would be ‘less restrictive’ or in his best interests to return home. Mark, meanwhile, continued to ask for Steven to return home. Hillingdon deliberately misled Steven’s father that they were planning for this, while making plans for a permanent move elsewhere. The council also threatened to review Steven’s direct payments if he returned home, leaving his father scared of ‘rocking the boat’ [146]. It was only after an IMCA was appointed almost a year later and raised concerns that the council applied to the Court of Protection. On 23 December, Mr Justice Mostyn ordered that Steven should return home by Christmas. Mr Justice Peter Jackson then reviewed Hillingdon’s actions under s21A MCA (the review provision of the DoLS) and the HRA. He concluded that Steven had been unlawfully deprived of his liberty. Yet, for Peter Jackson J the ‘nub of the matter’ was not the deprivation of liberty ‘to which [Steven] is to some degree or other necessarily subject wherever he lives’, but rather his article 8 rights to family life [151], recasting the DoLS as a tool for adjudicating on rights to home and family life rather than restrictions and restraints.

The court’s jurisdiction to review DoLS authorizations under s21A MCA also facilitated legal challenges to ‘safeguarding’ decisions removing people from their homes and families on the basis of concerns about abuse, neglect or risks of living alone. Sir James Munby (2011), the (now retired) President of the Family Court and the Court of Protection, compared their complexity to ‘a heavy child care case’, sometimes requiring extensive fact finding hearings about allegations, with added disputes about capacity and deprivation of liberty. Yet, unlike the formalized public law procedures for child protection, these hearings often took place after removal, with post-hoc safeguards on decisions made informally, guided by the MCA’s overarching rationality of managing vulnerability. In several cases the courts concluded the evidence for the safeguarding intervention was poor and the person’s human rights were violated, making orders to facilitate a person’s return home and sometimes awarding damages (for example, Somerset v MK (Deprivation of Liberty: Best Interests Decisions: Conduct of a Local Authority) [2014] EWCOP B25; Milton Keynes Council v RR & Ors [2014] EWCOP B19; Essex County Council v RF & Ors (Deprivation of Liberty and damage) [2015] EWCOP 1; Westminster City Council v Sykes [2014] EWHC B9 (COP)).

Yet the history of the law of institutions tells us that ‘safeguards’ are also the cutting edge of power; that law’s tools for resistance and liberation can also normalize and legitimate disciplinary power. Another cluster of cases, under the MCA’s ‘empowerment’ rationality, concern public bodies seeking judicial authorization to remove people (typically younger adults with intellectual disabilities or autism) from family care, to promote their ‘independence’ or ‘autonomy’. In some instances, this enabled the person to say they wanted to leave home (for example, LBX v K, L, M [2013] EWHC 3230 (Fam); ZK (Landau-Kleffner Syndrome: Best Interests) [2021] EWCOP 12); the judgments do not record this as a deprivation of liberty. However, in others the person’s expressed preference to remain living at home is regarded as the product of ‘undue influence’ or simply not in their best interests. The Court of Protection has authorized deprivation of liberty in ‘independent living’ or other arrangements to enable the person ‘to develop a social and emotional independence’ freed from ‘smothering’ relationships (A Primary Care Trust v P [2009] EW Misc 10 (EWCOP) [64]), to learn ‘skills and tools for everyday living’ (A Local Authority v WMA & Ors [2013] EWHC 2580 (COP) [15]), ‘to have a voice’ (A Local Authority v M & Ors [2014] EWCOP 33 [60]). These cases reflect the paradoxical entanglements of social care detention as ‘empowerment’.

The deprivation of liberty jurisdiction also manifests as a power to manage problematized sexuality, a major rationality for the use of guardianship and institutionalization in the early 20th century. Where a public body has reason to believe that a person lacks the mental capacity to make decisions around sexual activity (to consent to sex, to initiate sex, to commit sexual offences, or have ‘contact’ with potential sexual partners) the courts have held that they ‘must undertake the very closest supervision of that individual to ensure, to such extent as is possible, that the opportunity for sexual relations is removed’ (IM v LM [2014] EWCA Civ 37, [1]). Such measures aim to prevent what the law characterizes as an unlawful (and potentially criminal) sexual act, even where the person concerned might not consider this sexual activity exploitative; indeed they may actively want it (Series, 2015b). Within the judgments, it is generally accepted that this entails a deprivation of liberty. There are parallels between the sex cases and those concerning removal from home and family, since the outcome of a finding that a person lacks capacity regarding sex may be that they are removed from their existing home (for example, D Borough Council v AB [2011] EWHC 101 (COP)), or contact may be significantly restricted between people who are in longstanding relationships or even married (for example, CH v A Metropolitan Council [2017] EWCOP 12). These cases often result in orders that a person’s ‘capacity’ to make decisions about sex must be enhanced, through programmes of ‘education and empowerment’ (A Local Authority v TZ (No. 2) [2014] EWHC 973 [59] (COP)) until such time as the person attains ‘capacity’ in relation to sexual matters.

But if deprivation of liberty means removal from one’s homes or family, then what of those people without family or a home to return to? What of men and women, like HL before he lived with Mr and Mrs E, who had spent most of their life in institutional environments, or older adults whose tenancies may have been given up or their homes may have been sold to pay for their care? The suggestion in some cases is that without an alternative home, one cannot be deprived of liberty.

In his Court of Appeal ruling in Cheshire West, Munby LJ offered a very restrictive analysis of deprivation of liberty, considered shortly, but citing Bournewood, JE v DE and Neary created the following exemption: ‘Matters are, of course, very different where a person has somewhere else to go and wants to live there but is prevented from doing so by a coercive exercise of public authority’ (Cheshire West, EWCA, [58]). Citing this passage in C v Blackburn and Darwen Borough Council [2011] EWHC 3321 (COP), Peter Jackson J ruled that a man with a brain injury who had actively tried to leave his care home, to the point where the police had to be called after he had broken down a door trying to escape, was not deprived of his liberty because he had nowhere else to go. A crucial discursive move in concluding that MIG and MEG were not deprived of their liberty was defining their current living environment as their ‘home’ and excluding alternative living arrangements from consideration: ‘there is no alternative home save that of their mother where neither wishes to live’ (MIG and MEG, EWHC, [225], [230]).

Within this logic, then, deprivation of liberty is counterposed to home, and particularly to the family home reflecting the pictorial landscape underpinning the classical understanding of the law of institutions explored in Chapter 3. The jurisdiction concerns macro-questions of where a person lives. The restrictions, the micro-dynamics of care and control which I argued in Chapter 6 are integral to understanding institutionalization and its harms, are obscured from view. On this reading, for those without claim to another place or person, liberty has no meaning.

Family life as freedom

The corollary of deprivation of liberty as deprivation of home and family must be that life within the family home represents freedom. Shortly after Parker J’s High Court ruling in MIG and MEG, a local authority applied to the Court of Protection seeking guidance on whether two unrelated people, A (a child) and C (an adult) were deprived of their liberty while living with their parents, and the obligations of public bodies if they were (A Local Authority v A (A Child) & Anor [2010] EWHC 978 (Fam)).

Questions of ‘deprivation of liberty’ within family homes are taboo; the suggestion that the law of institutions should regulate this is social care detention at its most transgressive. Even researchers identifying custodial or carceral care within family homes are hesitant to liken this to institutional care (Redfern et al, 2002; Askham et al, 2007; Ben-Moshe et al, 2014). Counsel for the local authority presented the case that A and C were deprived of their liberty as ‘devil’s advocate’, distancing himself and the local authority from their own argument [50].

Both A and C had Smith Magenis Syndrome. The court was told that people with Smith Magenis Syndrome experience difficulties controlling emotions, leading to ‘temper tantrums and outbursts, aggression,² anxiety, impulsiveness and difficulty paying attention’ as well as ‘self-injurious behaviours’ and ‘severe sleep disturbance’ [8]. To cope and to prevent injury, the families maintained constant supervision, locking external doors and hiding the keys, and locked them in their bedrooms at night. Experts agreed that there were few alternatives to this; overnight carers would be overstimulating and unlocked doors presented serious risks of injury. Nobody suggested the measures were inappropriate; but did they amount to a deprivation of liberty?

In theory, Munby LJ agreed, it was possible for a person to be deprived of their liberty by their family – thinking of ‘Mrs Rochester’ type cases [131] – but this would be rare in the domestic setting, especially in the context of ‘care of children or vulnerable adults by their parents in the family home’ [131]. We will consider ‘benevolence’ as a strategy to repel ‘deprivation of liberty’ labels shortly.

Second, Munby LJ distinguished ‘private’ exercises of power by families from the role and powers of public bodies. The local authority had argued that if A and C were deprived of their liberty then it was not merely ‘involved’ but exercised ‘complete and effective control’ via its care plans and assessments, endorsing the arrangements [50]–[51]. The EHRC, intervening and represented by Paul Bowen, argued that if they were deprived of their liberty then the state was responsible as it was involved in providing care services for A and C, and had positive obligations toward them under human rights law. The EHRC expressed concern ‘about the potential for abuse where there is no external scrutiny of the treatment of vulnerable adults within private homes’ [44].

Munby LJ linked this approach to a ‘mindset’ or ‘culture’ encountered too frequently in cases where local authorities removed ‘incapacitated’ adults from family care into residential accommodation ‘without the sanction of the court and, therefore, without any legal authority’ [54]–[55]. He interpreted the law as providing local authorities with powers to provide community care services, establishing safeguarding duties, but conferring no powers ‘to regulate, control, compel, restrain, confine or coerce’ [66]. The local authority’s role was ‘the provision of services and support’ [66], it was ‘the servant of those in need of its support and assistance, not their master’ [52]. This analysis was later cited by Peter Jackson J in holding that Hillingdon Council had violated Steven Neary’s human rights. It is questionable whether Munby LJ’s analysis that local authority removals without prior judicial sanction are straightforwardly ultra vires; he did not consider whether they were protected against liability by the MCA’s general defence or authorizable under the DoLS (Ruck Keene, 2016; Series et al, 2017a: 64–75). However, viewed rhetorically, his polemic reinforced the idea that the purpose of the law of institutions is to protect the sacred domain of the family against officious intrusion, not to invite further intrusion. Reinforcing this logic, Munby LJ stressed that there was a ‘common sense’ distinction between a placement at home with family and a ‘residential establishment’ [134]; the plausibility of this distinction resting on accepting the traditional (yet increasingly troubled) regulatory boundary between homes and ‘institutions’.

The third rhetorical strategy to decouple restrictions, supervision and control from ‘deprivation of liberty’ was to infantilize disabled adults, thereby naturalizing, normalizing and de-legalizing the control exercised over disabled people (including adults) by analogy to parental control over young children. As we saw in earlier chapters, people with intellectual disabilities have long been painted as ‘childlike’ innocents (Wolfensberger et al, 1972; Wright, 1996), a form of othering distinguishing them from the ‘dangerous’ deviance associated with mental health detention (Ben-Moshe, 2020). Goffman (1961) and Foucault (2001/1961) connected the ‘minority’ status of institutional inmates with the loss of their civil rights, Goffman arguing that staff needed to view inmates as ‘not-fully-adults’ so as not to ‘feel a loss of self-respect by coercing deference from their charges’ (p115). As we saw in the previous chapter, Lord Percy (1957: [289]) described people with intellectual disabilities as ‘childlike’ in constructing the category of the ‘non-volitional’, laying the groundwork for ‘informality’. Unsurprisingly, disabled writers and activists connect infantilization to oppression of disabled people within society, and paternalistic and controlling forms of care (Oliver, 1990; Shakespeare, 2000). Meanwhile, the adulthood of people with intellectual disabilities is an important theme in the post-carceral ideology of normalization (Wolfensberger et al, 1972).

Nevertheless, infantilizing themes and discourses are prominent in decisions throughout the deprivation of liberty litigation, and across judgments of the Court of Protection more generally. There is no significant analysis of whether C’s situation (as an adult) differed from A’s (a child’s) in A Local Authority v A (A Child) & Anor [3]. In Cheshire West, Munby LJ contrasted the ‘illuminating examples’ [41] of locking counsel for P (Robert Gordon QC) in a police cell for three hours where he ‘would indubitably be deprived of his liberty’ with placing a one-year-old child for three hours in a playpen, behind bars: ‘The idea that Article 5 could be engaged, the idea that the child is being deprived of her liberty, is preposterous’ [42]. Infantilizing tropes recur throughout the judgments. MIG was characterized by Parker J as loving her ‘Mummy’ [209], P’s bodysuit likened by Munby LJ to a ‘babygrow’, his being strapped into a wheelchair as like a child in a buggy (Cheshire West, EWCA, [114]). Many judgments in the Court of Protection describe ‘P’ – an adult alleged to lack capacity – in terms of their ‘mental age’, a controversial metric derived from IQ scores which the British Psychological Society (2000) advises against using for adults. For example, Parker J prefaces her judgment in MIG and MEG by asserting that MIG has the ‘cognitive ability of a child aged about two and a half’ and MEG ‘of a four to five year old child’ (MIG and MEG, EWHC, [7]).

His intervention as a philosopher of liberty connected this image of the child with the historical category of the non-volitional, the individual constructed by Enlightenment thought as without a will, and therefore without liberty to lose. From the audience, the OS, Alastair Pitblado, retorted ‘one can be flippant about little children if one wants, but these aren’t children, they’re adults’.

‘Normality’ and the comparator

Players on all sides of the deprivation of liberty game appealed to the ‘normality’ or otherwise of a person’s living arrangements to make their case. As I showed in Chapter 4, ‘normalization’ was central to the deinstitutionalization of people with intellectual disabilities, based on the idea that both a person’s living arrangements, and the person themselves, should be made as ‘normal’ as possible (Wolfensberger et al, 1972). The normalization literature conceived of a continuum of ‘normality’ in living arrangements, with large hospitals and institutions at one end of the spectrum, small ‘homes’ and family homes at the other, and a variety of ‘step down’ or ‘halfway’ facilities between. Yet, as I have argued throughout, it is entirely possible for a person to be living in a space designated a ‘normal home’, in ways that violate the socio-cultural and legal norms of home explored in Chapter 6. Within Western cultures, ‘home’ signals a rich decision space where a person’s identity can be expressed and flourish through a range of macro- and micro-decisions. ‘Institutions’ (whatever their size) are radically constrained decision spaces which seek to ‘correct’ (or ‘normalize’) a person’s lifestyle and identity. A person can live an ‘institutional’ life in a space that others describe as their home. In Chapter 7, I showed how these liminal spaces tied the regulatory axis of the law of institutions in knots; in this section I show how discourses of normality entangled questions of liberty.

In several cases, including MIG and MEG’s, it was held that a person was not deprived of their liberty because they were living in an ‘ordinary care home’ or an ‘ordinary domestic environment’ (for example, MIG and MEG, EWHC, [209], [233]; LLBC v TG [2007] EWHC 2640 (Fam), [105]; CC v KK and STCC [2012] EWHC 2136 (COP), [101]). On appeal in MIG and MEG’s case, Wilson LJ described a ‘spectrum’ of normality, featuring family life as the ‘most normal life possible’, and hospitals ‘designed for compulsory detentions like Bournewood’ at the other end, with small children’s homes and nursing homes in between the two (P & Q, EWCA, [28]). The ‘enquiry into normality’ also considered community activities, such as attending school, college, day centres or other occupations, and any restrictions on social contact [29].

The difficulty with an ‘enquiry into normality’ is in selecting a comparator. Within the normalization literature, ‘normal’ meant the life enjoyed by non-disabled people, law’s hypothetical ordinary and reasonable ‘man on the Clapham omnibus’. It clearly did not mean what was ‘normal’ for most people with intellectual disabilities at the time, which was confinement in large institutions. This was an (ab)normality that normalization was trying to eradicate.

The judgments describe MIG, MEG and P’s living arrangements as their ‘homes’. However, this positioning glosses over the micro and the subjective; they did not enjoy the ‘normal’ home life of the man on the Clapham omnibus. Aside from MIG – who is explicitly described as regarding her foster placement as her ‘home’ (MIG and MEG, EWHC, [209]) – it is not clear that either MEG or P perceived their living arrangements as ‘home’ in the sense explored in Chapter 6. Although, as the courts were keen to emphasize, they enjoyed outings and activities that might be ‘normal’ for a person of a similar age, the level of supervision and control that each were subject to, and in MEG and P’s cases the level of physical and chemical restraint, were anything but normal. They did not enjoy ‘normal’ decision spaces. Macro-choices over where they lived were made by the courts and social services, and the judgments do not explore who offered or made the micro-choices in their everyday lives.

Overturning Baker J’s analysis on appeal, Munby LJ found that he had erred by not comparing P’s situation ‘with the kind of life P would have been leading as someone with his disabilities and difficulties in what for such a person would be a normal family setting’ [110].⁴ When considering how ‘normal’ a life a person was living for the purposes of determining whether they are deprived of their liberty, the relevant ‘comparator’ is ‘the normality of the life of someone with the relevant condition, not the normality of the life of the able-bodied man or woman on the Clapham omnibus’ [87].

Munby LJ’s comparator implicitly presumes that a disabled person’s life situation is mainly determined by their impairment and not the responses of their caregivers or their environment; an inversion of the social model of disability. Clough (2015: 2, 8) describes this as a ‘stark illustration’ of a deeply embedded medicalization of disability permeating judicial discourse, ignoring ‘the institutional and situational factors which can hinder or undermine liberty’ and further perpetuating ‘the illusion that the state and society play no role in the lived experience of those with cognitive impairment’. Both Munby LJ and Parker J relied upon a rhetorical manoeuvre also observed in disability litigation in the USA, depicting disability as a ‘prison within’, deflecting attention from disabling or restrictive features of a carceral environmental (Ben-Moshe, 2020: 263). Munby LJ stressed that ‘some people are inherently restricted by their circumstances’ [87] and Parker J describe MIG and MEG as lacking ‘freedom and autonomy dictated by their own disability, rather than because it is imposed on them by their carers’ [233].

The legal outcome of the ‘relative normality’ test was that disabled people, particularly those with more significant impairments, could be subject to substantially greater restrictions than the general population before qualifying for liberty safeguards (Troke, 2012). The number of DoLS applications received by supervisory bodies, already significantly lower than government projections, fell for the first time after the Court of Appeal judgments in Cheshire West and P & Q (NHS Information Centre for Health and Social Care, 2011; Health and Social Care Information Centre, 2013). In a nod to Wilson LJ’s spectrum of normality, however, the courts did generally continue to find most people in psychiatric hospitals, or subject to non-consensual medical treatments for physical disorders such as forced feeding or forced interventions during childbirth, to be deprived of their liberty (for example, Re LDV [2013] EWHC 272 (Fam); AM v South London & Maudsley NHS Foundation Trust and The Secretary of State for Health [2013] UKUT 0365 (AAC); A NHS Trust v Dr. A [2013] EWHC 2442 (COP); Great Western Hospitals NHS Foundation Trust v AA & Ors (Rev 1) [2014] EWHC 132 (Fam)). The boundaries of the law of institutions were firmly retrenched; social care detention was in retreat.

Benevolence: reasons, motivation, purpose

A third rhetorical strategy in repelling the law of institutions stressed the benevolence of the care arrangements, and their necessity, reasonableness or proportionality in keeping someone safe. It implicitly appealed to deprivation of liberty’s penal associations, and a sense that only ‘bad’, excessively restrictive care, or malintent, is a deprivation of liberty.

The Department of Health (2007: [82]) seemed to take this view, reducing estimates for the number of people requiring DoLS safeguards from 98,000 (the figure floated in the Bournewood litigation by the MHAC) to 21,000, asserting that only ‘excessive limitations on freedom of movement’ or ‘unreasonable controls’ on visits or outings would be a deprivation of liberty. In MIG and MEG, Parker J contrasted their situations with the paradigm example of the prisoner, emphasizing that the ‘reasons’ for the restrictions were to benefit MIG and MEG [164]–[166], [230]. Although on appeal Wilson LJ distanced himself from this approach (P & Q, EWCA, [27]), in Cheshire West (EWCA), Munby LJ returned to the theme. His analysis distinguished ‘reason’, ‘purpose’, ‘motive’ and ‘intention’. While good intentions could not ‘render innocuous’ what would otherwise be a deprivation of liberty, an improper motive or intention could convert a situation into a deprivation of liberty which otherwise would not be [71]. Munby LJ agreed with Parker J that it was legitimate to have regard to the ‘objective’ reason or purpose for restrictions [75]–[76]. He applied this analysis to a hypothetical example of a man caring for a wife with dementia, whose (objective) purpose was to safeguard and protect her, with no malign motive that would convert this into a deprivation of liberty [77].

Legally speaking, this rhetorical strategy made no sense. It was undisputed by the ECtHR that the professionals in Bournewood acted in good faith in what they considered HL’s best interests (HL v UK, [99]). Deprivation of liberty is only lawful under the MCA if it is assessed as being in the person’s best interests, and is necessary and proportionate.⁵ If this meant that a person was not deprived of their liberty it was hard to see when a DoLS authorization could ever be issued (Troke, 2012). As Munby J himself observed in JE v DE, ‘The argument, if taken to its logical conclusion, would seem to lead to the absurd conclusion that a lunatic locked up indefinitely for his own good is not being deprived of his liberty’ [47]. The fact this logical and legal incoherence could be overlooked by the government and courts pursuing this rhetorical strategy reflects the strength of their desire to repel the law of institutions from settings where it is at its most socially and culturally transgressive.

‘Objections’ and ambiguity

The last critical frontier in the deprivation of liberty litigation that I wish to highlight is the ambivalent approach of the courts to the person’s subjective experience of their living arrangements. In the previous chapter I showed how the carceral era’s extensive frameworks for regulating deprivation of liberty were dismantled for the majority of people with intellectual disabilities and dementia by constructing a new legal category: the ‘non-volitional’. The logic of this category was that this population had no ‘will’, no ‘wishes’, and therefore no need for liberty safeguards. If they were not actually passive – if their behaviour did suggest unhappiness, if they did try to leave places where they were confined – then unless this behaviour was ‘purposeful’ and ‘persistent’, it was mere ‘wandering’, meaningless ‘challenging behaviours’ reflecting illness and requiring treatment, not resistance or an ‘objection’ attracting legal protection. I contend that the logics of ‘the non-volitional’ are evident throughout the deprivation of liberty litigation, and that this lies at the root of some of Cheshire West’s most paradoxical outcomes.

The litigation discussed here concerned the ‘objective’ element of whether a person was deprived of their liberty, not the ‘subjective’ question of whether they had given a valid consent (see Storck v Germany, discussed in Chapter 5). It was undisputed that a ‘valid consent’ could never be given by somebody who, like HL, ‘lacks the capacity to consent or object to medical treatment’ (HL v UK, [9]). The policy of the ECtHR’s judgment is that even a person who does not ‘object’ is entitled to safeguards; and this entailed paying little attention to HL’s subjective experience.

Next to nothing is recorded in HL v UK about his subjective experience of this ordeal. Hospital notes cited by the courts recorded HL as ‘calm’ and ‘compliant’ [13], although Lord Steyn had found he was regularly sedated to remain tractable [46]. Other sources, however, recount how his carers found him ‘in a dreadful state emotionally and physically’ when they were finally able to visit. A care manager described HL as ‘increasingly distressed’ by his admission, and a charge nurse as ‘disturbed for most of his stay’ (Health Service Ombudsman, 2001: 24–7). Elsewhere, his carers described how HL had been frequently restrained by staff standing on his feet, so that he had no toenails when he left hospital (EHRC, undated). HL may not have verbally objected to his confinement, or tried to leave, but these accounts surely suggest profound unhappiness and distress at his situation. Yet for his clinicians, the question was not whether HL was deeply unhappy and distressed by his admission, but whether his behaviour reflected ‘a psychiatric condition or a behavioural problem’ (Health Service Ombudsman, 2001: 26). The non-volitional category is closely tied to the pathologization of behaviours, overlooking its meanings and potential communication.

More recent versions of the MHA Code of Practice require professionals to consider ‘the patient’s behaviour, wishes, feelings, views, beliefs and values, both present and past, so far as they can be ascertained’, and to treat patients as objecting ‘if there is reason to think that a patient would object, if able to do so’ (Department of Health, 2008: [4.19]; 2015b: [13.15]). Ironically, HL would now likely be considered ‘objecting’ to his admission, meaning the MHA should be used rather than the DoLS (Allen, 2010). Even so, there is an important difference between ‘not objecting’ – even on this broader test – and a positive desire for a particular living arrangement.

Although the litigation proceeded on the basis that a person who ‘lacked capacity’ could not give a valid consent, both Parker J and Wilson LJ placed great emphasis on MIG and MEG’s apparent happiness with their living arrangements in concluding they were not deprived of their liberty. Parker J went so far as to suggest that ‘[i]n a non legal sense they have the capacity to consent to their placements’ and could not imagine any visitor gaining ‘any sense of confinement of detention’ [234], despite not having met them herself. In the Court of Appeal, Wilson LJ held that whether the person ‘objects to the confinement which is imposed on her’⁶ is central to the analysis of whether they are deprived of their liberty. If objecting, ‘the consequence will be conflict’, at the very least ‘arguments’ and ‘the stress of having her objections overruled’ and potentially ‘tussles and physical restraints’, or even a forcible return. This ‘level of conflict’ was ‘highly relevant to the objective element’, while an absence of conflict was relevant in the opposite direction [25]. Wilson LJ also observed that ‘antipsychotic drugs and other tranquilisers’ were ‘always a pointer towards the existence of the objective element: for it suppresses her liberty to express herself as she would otherwise wish’, and particularly if administered by force or had the effect of ‘suppressing’ objections [26].

On this analysis there were indicators that MIG was not deprived of her liberty; she was ‘devoted to her foster mother’, considered it her home, and showed no wish to leave [14]. The courts’ approach to MEG is puzzling, however. MEG was ‘medicated’ with a sedating antipsychotic. She was restrained because of ‘tussles’ with other residents. Interestingly, neither Parker J nor Wilson LJ recorded – as the Supreme Court judgment did – that MEG ‘mourned the loss of [her relationship with her foster carer] and wished she was still living with her’ (Cheshire West, UKSC, [14]). Parker J’s conclusion that MEG was ‘consenting’ in a ‘non legal sense’ seems quite a stretch given these details.

The irrelevance of the feelings and wishes of the ‘non-volitional’ was highlighted in C v Blackburn with Darwen. C told the court that he wanted to leave the care home. He had even broken down the front door attempting to escape. Yet, despite his powerful objections, and Wilson LJ’s ruling in P and Q, he was not considered deprived of his liberty by Peter Jackson J because he had nowhere else to go. In CC v KK, Mrs KK gave such articulate direct evidence to the court explaining why she did not want to live in a care home that Baker J concluded she had the capacity to make that decision, yet there was not sufficient conflict to render her circumstances a deprivation of liberty [99].

These cases indicate a serious problem with judicial engagement with the subjective experiences of adults considered ‘incapacitated’ within the deprivation of liberty jurisdiction. HL’s case demonstrates there is considerable scope for professionals and carers to disagree about whether a person is distressed by their circumstances. MEG’s case shows that judges and others can exploit ambiguity over a person’s wishes and feelings to arrive at the interpretation that suits their argument. C and Mrs KK’s cases tell us that even judges whose cases are celebrated for their close and careful engagement with the wishes and feelings of the person (Series, 2016) can put aside a person’s clear objections and conclude they are not deprived of their liberty. If neither MEG, C nor Mrs KK could meet Wilson LJ’s threshold for ‘objections’ then it is extremely difficult to see how a disabled person who did not communicate verbally, or a polite, institutionalized, sedated or simply overawed person, could trigger the machinery of article 5 to attract scrutiny or challenge of their predicament.

The acid test

Lady Hale sought to identify a straightforward acid test for deprivation of liberty; metaphorics evoking a simple scientific test distinguishing two fundamentally opposing substances. Noting that this was a consistent feature in ECtHR jurisprudence since HL v UK, Hale found that the ‘key’ was whether the person ‘was under continuous supervision and control’ and ‘not free to leave’ [49]. The main part of her judgment, and that of Lord Kerr and Lord Neuberger, was given over to rebutting the arguments and discursive strategies of the lower courts and the dissenting justices – Lords Carnwath, Hodge and Clarke – and highlighting the policy imperative of providing safeguards. I pick up questions of policy in Chapter 10.

Benevolence

Lady Hale underscored the obvious logical flaw in arguing that restrictions were not a deprivation of liberty if they were necessary and benevolent, describing this as setting the ‘cart before the horse’; the very purpose of article 5 was to ‘secure that the legal justifications for the constraints’ on a person is ‘made out’ [56] (see also Lord Kerr at [84]). To see things otherwise was to let the ‘comparative benevolence’ of a person’s living arrangements ‘blind us to their essential character’ [56]. Drawing a striking contrast with infantilizing play pen imagery, she commented that ‘[a] gilded cage is still a cage’ [46].

Objections

The dissenting justices stressed that neither MIG, MEG nor P ‘evinced dissatisfaction with or objection to’ their placements [90], describing them as ‘people living happily in a domestic setting’ [99], [109]. For the reasons outlined above, we might doubt the accuracy of this description. Both Lord Neuberger and Lady Hale countered this by framing the appellants as persons who lacked the (de facto) ‘capacity to object’ [55], [67]. Lord Neuberger noted that if objections were necessary, people without the capacity to object could therefore never be found deprived of their liberty, no matter how confining the circumstances, a proposition that ‘cannot possibly be right’ [67]. Lord Kerr asserted that deprivation of liberty was an ‘objective state’, not dependent ‘on one’s disposition to exploit one’s freedom’ [76]. In tacit reference to the historical policy of ‘informality’ for the ‘non-volitional’, Lady Hale commented that ‘it might once have been suggested that a person cannot be deprived of his liberty if he lacks the capacity to understand and object to his situation’, but this approach was rejected in HL v UK [33]. Like the ECtHR in Bournewood, Cheshire West rejected ‘informality’ yet tacitly accepted the existence of a ‘non-volitional’ category of persons.

The reverse-comparator: universal human rights

In court, no advocate – including the councils who argued the appellants were not deprived of their liberty – defended Munby LJ’s ‘comparator’ approach. Even the dissenting justices agreed with some of the criticisms made ([77], [79], [88], [99]). Lady Hale adopted a rhetorically potent strategy to reject this appeal to the ‘relative normality’ of a disabled person’s living arrangements, drawing from post-carceral discourses of human rights universalism and equality. She framed the overarching question to be determined by the Supreme Court as whether article 5 ‘is the same for everyone, regardless of whether or not they are mentally or physically disabled’ [33], implicitly challenging her audiences to counter powerful post-carceral and liberal norms in arguing that liberty is ‘different’ for disabled than non-disabled people.

Lady Hale stressed, ‘[t]he whole point about human rights is their universal character’, the ECHR guarantees these rights to ‘everyone’, and the same philosophy underpins the CRPD [36]. It is ‘axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race’ [45]. Yet her reading of these rights was reformist, not abolitionist: these rights might sometimes have to be limited or restricted ‘because of their disabilities’, but the ‘starting point’ was the same for everyone [45]. Tacitly positioning those restricting the scope of article 5 as ‘denying’ disabled people their rights, she argued that such differences as existed instead required the state to ‘make reasonable accommodation’ for their ‘special needs’ [45]. Here ‘accommodation’ could be read as potentially even including restrictions themselves, but certainly including safeguards. The logic is that detention safeguards, and possibly restrictions on liberty themselves, bring benefits that promote rather than inhibit the human rights of disabled people.

By substituting herself – one of the foremost lawyers of her age – for the appellants, Lady Hale inserted the archetypal ‘rational legal subject’ (Naffine, 2003) into the place of those whose legal status had been clouded by decades of informality, infantilization and ‘non-volitional’ status, crystallizing and solidifying them as legal persons.

Dissolving the home/institution boundary

The most divisive and controversial outcome, I suggest, of the Supreme Court’s ruling in Cheshire West is that it extended a legal machinery for regulating the threat of institutionalized carceral care into the private and domestic sphere. Echoing Wilson LJ in P and Q, and Munby LJ in A Local Authority v A (A Child) & Anor, the dissenting justices argued that ‘nobody using ordinary language’ would describe ‘people living happily in a domestic setting’ as deprived of their liberty, labouring to keep deprivation of liberty within its ‘ordinary meaning’ ([99], [108]).

This rhetorical strategy, frequently employed by those criticizing the judgment, appeals to a ‘common sense’ connecting deprivation of liberty to the large institutions of the late carceral era. Yet this common sense is based on a fictional construction of the past. As I showed in Chapter 3, there are historical precedents for domestic deprivation of liberty: ‘madhouses’ began as domestic settings where ‘lunatics’ might be ‘kept’ for profit; ‘single houses’ where a person might live with a doctor or paid attendants required ‘certification’ and visitation for most of the 19th century; and by the late carceral era the Lunacy Commission was empowered to visit and require medical reports concerning those ‘detained or treated as a lunatic or alleged lunatic’ even within private families. The Victorians might well have considered MIG, MEG and P to be detained. The boundary line underpinning the law of institutions has always been contested, unstable and deeply political. However, post-carceral care arrangements presented particular dilemmas since they were ideologically bound up with alternatives to institutional and carceral modes of care.

The acid test dissolved this unstable boundary delimiting the law of institutions. Lady Hale accepted that MIG and MEG might enjoy ‘comparative normality in the sense of their “home-like” quality’ but asserted this did not answer whether they were deprived of their liberty [47]. She went on to remark that if they lived ‘under the same constraints’ in the kind of ‘institution’ Rusi Stanev was confined in ‘we would have no difficulty’ deciding they were deprived of their liberty: ‘In the end, it is the constraints that matter’ [56]. Although MIG lived in an ‘ordinary family home’ with her foster mother, the ‘reality’ was the same as MEG’s: her foster mother and others ‘exercised complete control over every aspect of her life’, and she was not allowed to go out, see people or do things ‘which they did not wish her to do’ [53]. Conceding as a ‘fair point’ that the ECtHR had never considered a deprivation of liberty concerning an ordinary domestic home, Lord Neuberger commented, ‘I cannot see any good reason why the fact that a person is confined to a domestic home, as opposed to a hospital or other institution, should prevent her from contending that she has been deprived of her liberty’ [71].

Lady Hale’s reasoning resonated with an older ‘battlefield’ over children and families (Hoggett, 1994: 8), asserting the rights of people subject to the power of caregivers in private settings and the onus on the state to provide safeguards and protections even if that encroached upon the ‘rights’, authority or privacy of families.⁸ Yet it raised thorny questions – highlighted by the dissenting justices – about whether this would now mean that a person like HL would be deprived of his liberty when living with his carers in the community [100]. Cheshire West reframed deprivation of liberty as a relation of control, irrespective of who exercised control, where, or for what reasons. The policy imperative at stake was securing an ‘independent check’ on care arrangements satisfying the acid test – I discuss this further in Chapter 10.

A victory for human rights?

Mind (2014) praised Cheshire West as a ‘landmark’ judgment ‘for the protection of vulnerable people’. Disability Rights UK (2014) endorsed it, remarking that residential care placements without any option to leave ‘should not “just happen”’. Counsel for the National Autistic Society and Mind, intervenors in the case, described it as recognizing that depriving a person of their liberty ‘is such a profoundly invasive step to take that it must be independently justified’ (Wise and Spurrier, 2014). Richard Gordon (2014) – counsel for the appellants – felt it addressed the ‘profound fallacy’ that liberty was different for a person without capacity, and the subtext that they should ‘thank their lucky stars for having a nice care home’.

Despite bearing the brunt of the judgment’s administrative effects, many social workers voiced support for the outcome. Dawn Whitaker (2014: 1), the independent social worker for P in Cheshire West, described it as ‘social justice’, ‘a wake-up call to all those involved in safeguarding adults at risk’, providing ‘essential and necessary protections for many thousands of adults, subject to high levels of restrictive practice, supervision and control’. Blair McPherson (2014) contrasted the ruling with past practices of routinely admitting older people to residential care without involving them in the decision, then responding to their distress by locking the doors, sedating residents and restricting their movements. Ian Burgess (2014) welcomed the judgment as enshrining ‘social work values in law’, describing the take-away message for social workers as ‘that human rights are for everyone’ and ‘there is no sliding scale of rights’. James, Mitchell and Morgan (2019: 60–1), authors of a popular social work book, described it as ‘a wake-up call to adult social work’, reminding the profession ‘of its roots’ in promoting empowerment and ‘liberation of people’, social justice and human rights. The government observed that ‘the judgment has been welcomed by many stakeholders and professionals’ and that ‘handled appropriately’ it ‘could have a significant positive effect’ in raising awareness of DoLS, ‘empowering individuals and protecting their rights’ (HM Government, 2014: [7.15]).

Others were sceptical of the judgment’s implicit claims that the law of institutions would help solve problems in community care, sounding a cautious note over the operational challenges of securing safeguards on this scale with insufficient resources (McNicholl, 2014; McPherson, 2014). The CQC (2015c: 6) welcomed ‘the clarity’ the judgment provided ‘and the increase in applications’ but recognized the ‘challenges’ facing providers and supervisory bodies. Sir James Munby (2018) (by then retired) commented that the proper resourcing of the system to replace DoLS would be ‘more significant and important than its structure’. Jones and Piffaretti (2018: v), a former director of adult social services turned specialist mental health and capacity law solicitor, described the judgment as coming ‘at great cost to the public purse’ diverting resources from service provision to regulation, and categorizing thousands of people ‘who are being cared for appropriately and without complaint’ as detained.

Others – while acknowledging the need for an ‘independent check’ – doubted that deprivation of liberty safeguards were the best way to secure this. Echoing Foucauldian scholarship on regulatory paradoxes, Neil Allen (2015: 46) (counsel for Cheshire West and Chester Council and Surrey County Council) argued that basing safeguards on the paradigm of a ‘prison cell’ risks ‘cementing the care relationship to a prison paradigm … in the perception and consequence of the law’, and further ‘institutionalising’ those living in the community, ‘legitimising rather than preventing the problem’. District Judge Anselm Eldergill commented that where interferences with liberty may have been ‘occasional, guilty, tentative or furtive’ they may become ‘confidently asserted against a person incapable of resisting’ (Law Society, 2020).

Gordon Ashton (2017: 103), a retired Court of Protection judge who was the father of a man with intellectual disabilities who died in a care service after choking while being inadequately supervised while eating, doubted whether the DoLS would have given his son more freedom or saved his life. DoLS might have enabled the family to ‘ventilate our concerns’, but the ‘reality was that no other options were then available and the courts could not oblige the authorities to fund something better’. He would have ‘found it laughable’ if anyone had suggested his son was deprived of his liberty when being cared for at home by family, and expressed sympathy for Munby P’s attempts to ‘head off the looming disaster’.

Judicial resistance

The reception from Court of Protection judges was lukewarm at best, re-enacting the same discursive strategies and skirmishes that had characterized the litigation throughout. Several came perilously close to simply refusing to apply the acid test. In the next chapter I look at some of the satellite litigation prompted by the decision, where questions of liberty and appropriate safeguards continued to be raised and resisted in other contexts.

When faced with applying the acid test to people living in their own homes, Mostyn J and Bodey J made originalist arguments that Cheshire West took article 5 ECHR beyond the intentions of its drafters as a safeguard against the ‘mischief of state interference’ (Bodey J in W City Council v Mrs L, [27]), the ‘midnight knock on the door; the sudden disappearance; the prolonged detention’ (Mostyn J in The London Borough of Tower Hamlets v TB & Anor, [58]). The purpose of article 5 ECHR was against the ‘lawless abuses’ of Nazi Germany and totalitarian states (Rochdale Metropolitan Borough Council v KW & Ors, [10], [11]). For the reasons given in Chapter 5, I doubt this originalist reading of article 5 is correct.

Mostyn J resurrected old tropes of infantilization and the non-volitional, arguing that J. S. Mill could not have conceived of KW as deprived of her liberty since his doctrine of liberty applied only to humans ‘in the maturity of their faculties’ not ‘still in a state’ requiring care from others, asserting that liberty required ‘a positive and reasoned intellectual function which is hard to ascribe to a person of unsound mind’ (Rochdale Metropolitan Borough Council v KW & Ors, [14]). KW was ‘ambulant’, walking with a frame, but appealing to the logic of the ‘prison within’ Mostyn J ‘stress tested’ her situation by asserting that a man in a coma with no relations ‘demanding to take him away’ was ‘surely not’ deprived of his liberty, so therefore since KW could not ‘realistically leave’ it must follow that the ‘freedom to leave’ element of the acid test was not satisfied [22]. His repeated refusal to apply the acid test in KW’s case saw him criticized twice by the Court of Appeal, who eventually removed him from the case (KW & Ors v Rochdale Metropolitan Borough Council [2015] EWCA Civ 1054).

Libertarian backlash

Cheshire West provoked a libertarian backlash from critics of human rights and the ‘juridification of everyday life’ (Holbrook, 2017), sceptical of law regulating care or protecting ‘vulnerable’ persons in the private sphere (‘Fancy having a judge in your living room?’ asked Hewson (2012)). Jon Holbrook, a lawyer and critic of human rights law (Holbrook and Allan, 2017), argues that Cheshire West reflects its ‘distorting influence’ (Holbrook, 2014b). The litigation had posed the ‘wrong question’ – whether the care arrangements amount to a deprivation of liberty, rather than how living arrangements could be improved – and had therefore resulted in the ‘wrong answer’ (Holbrook, 2014a). The outcome, Holbrook conceded, might be desirable if ‘those lacking capacity were routinely deprived of adequate care’, but ‘this is not the case’. The judgment was emblematic of ‘bloody lawyers’ taking leave of common sense.

This view was echoed by barrister Barbara Hewson (2013) writing in the libertarian online magazine Spiked. The judgment was motivated by ‘a lack of trust in public services’ exacerbated by scandals such as Winterbourne View, but the ‘bureaucracy of detention regulation’ would not ameliorate this bad care, merely provide false reassurances as lawyers and judges ‘micromanage the conditions in which a disabled person lives’. It is not a proper function of law, she argued, to ‘shine a light into dark places’ – dismissing a key narrative motif championing the law of institutions (for example, CQC, 2014: 3; HM Government, 2014: 29).

For both Holbrook and Hewson, Cheshire West either constructs a fictitious problem (a claim I contest in Chapter 10) or else poses the wrong question and presents the wrong solution (claims I have more time for). Their rhetoric invoked the old motifs of informality and the non-volitional: ‘Keep the law out of disabled care’, as Hewson (2013) expressed it. However, their specific complaints resemble Lord Sumption’s (2019: 10, 13) more nuanced critique of human rights and ‘law’s expanding empire’, penetrating ‘every corner of human life’, regulating areas of clinical discretion and family life ‘that once belonged exclusively to the domain of personal judgement’.

Given the historical regulation of ‘lunacy’ and domestic psychiatry, we can query whether the juridification of the private sphere is as new as these critiques suggest. Caregiving arrangements– familial and clinical – have not been ‘private in the sense of outside public regulation’ for several centuries (Rose, 1987: 65); the critical question is what form regulation takes. Sumption’s suggestion that the law should retreat from these arenas does not answer questions of whose personal judgement should prevail when disabled people, their families and public bodies are in conflict. However, in the context of a global libertarian populist backlash against human rights (Alston, 2017), against ‘regulation’ more generally, we must pay close attention to these critiques and engage with them. Cheshire West could spell significant trouble for human rights and capacity law as it potentially inserts into family life a form of law geared toward regulating institutional spaces.

A statutory definition?

Some of those objecting to Cheshire West hoped that Parliament would adopt a statutory definition reversing or limiting the acid test. The Law Commission (2017b: [5.37]) viewed this as ‘misguided’, since the HRA still required courts to apply a test derived from article 5 ECHR. The JCHR (2018a, 2018b: 16–17), concerned about domestic deprivation of liberty, considered statutory definitions to ‘clarify’ the Supreme Court’s judgment. They rejected as discriminatory a ‘causative’ approach whereby if a person’s physical condition prevented them from leaving they were not deprived of their liberty (the ‘prison within’ strategy). However, they endorsed an approach suggested by English barrister and mental capacity law academic Alex Ruck Keene (2017a) based on ‘valid consent’.

This approach would not alter the acid test approach to the ‘objective’ limb of article 5 (see Storck v Germany in Chapter 5), but instead considered whether a person ‘validly consented’ to the arrangements. It was influenced by the CRPD’s universal legal capacity paradigm, and the logic that even people assessed to ‘lack mental capacity’ have a ‘will’ that can be given legal effect through supported decision making or an act of interpretation. The JCHR’s (2018a: 12–13) proposed model required that a person was ‘capable of expressing their wishes and feelings (verbally or otherwise)’, and had ‘expressed their persistent contentment with their care and treatment arrangements’, there was ‘no coercion involved’ in their care, and this was confirmed in writing by two professionals, one of whom was independent of the person’s care arrangements.

A variant of this approach was also proposed by District Judge Anselm Eldergill (2019), who – expressing particular concern about MIG’s case – proposed a ‘but for’ test establishing what the individual can and wishes to do (‘wills’) ‘but for’ interferences with their freedom. Some abolitionist proponents of the universal legal capacity paradigm have also argued that people who ‘lack mental capacity’ may still give valid consent if others appropriately interpret their ‘will’ (Centre for Disability Law and Policy, in Department of Health (Ireland), 2019: [1.111]). This model symbolizes a wholesale rejection of the logics of the ‘non-volitional’, requiring much closer judicial engagement with a person’s subjective experience than any of the existing deprivation of liberty litigation, and could address some of the more paradoxical outcomes of the acid test (Series, 2020). I revisit this possibility in the final chapter.

Lord Woolf tabled the JCHR’s ‘valid consent’ proposals as an amendment to the 2018 Bill. However, the government rejected it on the basis that these cases would thereby be excluded from the LPS scheme and hence require direct authorization in court (HL Deb 21 November 2018 vol 794 col 253–4). The implication was that whatever one put in the legislation, a person who ‘lacked capacity’ simply could not be regarded as giving a valid consent under the ECHR or English law; their will either did not exist or did not matter, but certainly could not form the basis of a legally valid consent.

Influenced by concerns ‘about the state involving itself unnecessarily in family and private life’ (HL Deb 5 September 2018 vol 792 col 1848) the government adopted its own statutory definition, significantly limiting the circumstances where the acid test would apply. The Lords rejected this amendment and proposed their own. Eventually the government dropped the attempt at crafting a statutory definition, and a revised Code of Practice will offer detailed guidance on case law on the evolving meaning of ‘deprivation of liberty’.

Tremors

The Cheshire West acid test is binding on all four UK jurisdictions. This includes Northern Ireland, which has recently adopted DoLS-like legislation (Mental Capacity Act (Northern Ireland) 2016 SI 2016/18), and Scotland, which is consulting on proposals (Scottish Law Commission, 2014: [1.1]; Scottish Government, 2016: [5]). While acknowledging the need for safeguards, however, the Scottish Government (2018a: [12]) felt that ‘deprivation of liberty’ was ‘not a particularly helpful term’, preferring a graded guardianship scheme that could satisfy the requirements of article 5 without explicitly coupling the safeguards to the concept of detention.

Tremors from Cheshire West spread beyond the UK. Legislation establishing DoLS-like safeguards in Jersey and Gibraltar – who were not bound by the Supreme Court’s interpretation of article 5 in Cheshire West⁹ – adopted definitions and thresholds modelled on the acid test, yet chose to forgo the term ‘deprivation of liberty’ preferring ‘significant restrictions on liberty’ (Capacity and Self-Determination (Jersey) Law 2016; Lasting Power of Attorney and Capacity Act 2018 (Gibraltar)). The safeguards applied only in regulated settings, however, avoiding ‘domestic deprivation of liberty’ situations. Guernsey,¹⁰ meanwhile, preferred the term ‘significant restriction of a person’s personal rights’ yet coupled its definition to article 5 ECHR, and explicitly included ‘private dwellings’ within its scope (Capacity (Bailiwick of Guernsey) Law, 2020). In the Republic of Ireland, government proposals for DoLS-like legislation spoke of ‘admission decisions’ rather than deprivation of liberty, yet employed the acid test’s as threshold criteria. The Centre for Disability Law and Policy argued this ‘euphemism’ masked the individual’s right to liberty (Department of Health (Ireland), 2017; 2019: [1.5]).

The approaches adopted by these jurisdictions suggest the judgment’s plausibility lies in arguing for the need for safeguards – both to protect ‘vulnerable’ persons considered to lack capacity, and to forestall litigation before the ECtHR. However, the symbolism of ‘deprivation of liberty’ remains controversial in connection with ‘incapacity’ and social care. As I discussed in Chapters 1 and 5, lawyers, activists and some public officials in other jurisdictions – including Canada, Australia, the USA and France – continue to argue that disabled people are deprived of their liberty by care arrangements in the community and require deprivation of liberty safeguards, but the symbolism of social care detention is currently resisted by their governments.