The Bournewood case posed a new question of vast numbers of people in hospitals, residential care and other ‘community’ settings: is this person deprived of their liberty? If so, the DoLS or some other formal authority was needed to regulate the situation. Yet this question did not come naturally to the inhabitants of the post-carceral landscape of care, its very meaning imbued with liberation from the legal and institutional structures of the carceral era. Suggestions that people might be ‘deprived of their liberty’ by community care arrangements were outliers, curios for legal enthusiasts (Brearley et al, 1980/2001: 68). For most, this was a ‘hitherto unknown question’ (Allen, 2009: 19), a new game without written rules or clear traditions of practice, to secure or repel the law of institutions in the community through persuasion and other tactics.
Bournewood triggered extensive litigation on the meaning of ‘deprivation of liberty’ for a wide variety of post-carceral living arrangements. Space precludes a detailed survey of the mess of complex and contradictory case law preceding the Supreme Court’s judgment in Cheshire West (see: Allen, 2012; Ruck Keene, 2013). Its heterogeneity was mirrored in highly variable rates of DoLS applications, as different hospitals, care homes and supervisory bodies adopted their own working definitions (Series, 2013). I do not offer here a doctrinal analysis of the legal rules for determining deprivation of liberty prior to the Supreme Court decision – I doubt any clear analysis is possible. Rather I am interested in attending to the rhetorical (Harrington et al, 2019) and discursive tactics of key players in the deprivation of liberty game, as they sought to fix the boundaries of the law of institutions in new terrain beset with controversy, ambiguity and paradox.
The key players in this litigation include the public bodies responsible for arranging care and securing appropriate safeguards for any care arrangements amounting to a deprivation of liberty; primarily local authorities but also some NHS bodies. Families and friends of older and disabled people made their own arguments, as custodians or liberators of the person, as to whether
The judiciary themselves were divided in their approach. The courts were not neutral observers in this litigation; a lot hung on whether MIG, MEG or P were deprived of their liberty. Each lived in settings outside of the recognized ambit of social care detention at that time: P in a supported living style service and MIG with her foster carer. A broader definition of deprivation of liberty, encompassing more people in settings not subject to DoLS administrative procedures, would have a significant impact on the courts and public bodies, since these entailed costly judicial authorization at least annually (Salford City Council v BJ  EWHC 3310 (Fam)). And while MEG was in a more ‘institutional’ setting she was also under 18, raising uncomfortable questions of whether minors could also be deprived of their liberty by their care arrangements, and the potential impact on the family court. These resource implications were noted in MIG, MEG and P’s appeals, although the judges stressed that ‘to have an eye’ to this in determining the ambit of article 5 would be to ‘raise it to the wrong end of the telescope’ (Cheshire West and Chester Council v P  EWCA Civ 1333; P & Q ).
MIG, MEG and P
The High Court and Court of Appeal judgments concerning MIG, MEG and P occupied nodal positions within this web of cases prior to their being conjoined and decided by the Supreme Court in 2014 in Cheshire West. A short description and brief chronology contextualizes the wider litigation.
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
‘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  EWHC 785 (Fam), , ). 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  EWHC 785 (Fam)). The OS appealed and, in P & Q v Surrey County Council  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  EWHC 1330 (Fam),
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  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  UKSC 19.
The contours of liberty before Cheshire West
Like HL, neither MIG, MEG nor P were said to be ‘objecting’ to their care arrangements, although like HL, this claim requires careful unpicking. If they were deprived of their liberty then many thousands more people, including many outside the DoLS administrative procedures, were likely to be as well. The system simply could not cope with this volume of DoLS or court applications – as the next chapter will relate in more detail. Meanwhile, the symbolism of finding detention in supported living, in a private family home (albeit foster care) and of a minor, jarred against post-carceral ideologies, the legacies of informality and the logics of the ‘non-volitional’. The early case law reflects struggles between those calling attention to the carceral dynamics of residential and domestic care arrangements, and those seeking to preserve the traditional legal boundary line distinguishing ‘institutions’ – understood as large-scale hospital accommodation – and spaces representing home and community.
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  EWHC 621 (Fam)).
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: ) 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  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
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’ . 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 , 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)  EWCOP B25; Milton Keynes Council v RR & Ors  EWCOP B19; Essex County Council v RF & Ors (Deprivation of Liberty and damage)  EWCOP 1; Westminster City Council v Sykes  EWHC B9 (COP)).
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  EWCA Civ 37, ). 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  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  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)  EWHC 973  (COP)) until such time as the person attains ‘capacity’ in relation to sexual matters.
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, ). Citing this passage in C v Blackburn and Darwen Borough Council  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, , ).
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  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
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’ . 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 neither home does the regime involve a deprivation of liberty. And in saying this I should make clear that I do not see this as being a borderline case or a case which falls to be decided on a fine balance. In my judgment, the loving, caring, regime in each of these family homes – a reasonable, proportionate and entirely appropriate regime implemented by devoted parents in the context of a loving family relationship and with the single view to the welfare, happiness and best interests of A and C respectively – falls significantly short of anything that would engage Article 5.
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  – 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’
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 –. 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’ .
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’ –. 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’ . The local authority’s role was ‘the provision of services and support’ , it was ‘the servant of those in need of its support and assistance, not their master’ . 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’ ; 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
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 . In Cheshire West, Munby LJ contrasted the ‘illuminating examples’  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’ . Infantilizing tropes recur throughout the judgments. MIG was characterized by Parker J as loving her ‘Mummy’ , 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, ). 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, ).
the term ‘deprivation of liberty’ is not quite the right term since I don’t imagine that this very unfortunate individual ever had it before. There is an implication that ‘deprivation’ is removal of something that they’ve enjoyed and was of value to them … I think it’s more denial of liberty than deprivation of liberty. … We wouldn’t for a minute think about
having this kind of anxiety about a four-year-old … or even for that matter a fourteen-year-old.3
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, , ; LLBC v TG  EWHC 2640 (Fam), ; CC v KK and STCC  EWHC 2136 (COP), ). On appeal in MIG
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, ) – 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.
On the other hand, his life is completely under the control of members of staff at Z House. He cannot go anywhere or do anything without their support and assistance. More specifically, his occasionally aggressive behaviour, and his worrying habit of touching and eating his continence pads, require a range of measures, including at times physical restraint, and, when necessary, the intrusive procedure of inserting fingers into his mouth whilst he is being restrained.(Cheshire West, EWHC, )
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’  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’ .
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  EWHC 272 (Fam); AM v South London & Maudsley NHS Foundation Trust and The Secretary of State for Health  UKUT 0365 (AAC); A NHS Trust v Dr. A  EWHC 2442 (COP); Great Western Hospitals NHS Foundation Trust v AA & Ors (Rev 1) 
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: ) 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 –, . Although on appeal Wilson LJ distanced himself from this approach (P & Q, EWCA, ), 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 . Munby LJ agreed with Parker J that it was legitimate to have regard to the ‘objective’ reason or purpose for restrictions –. 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 .
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, ). 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
‘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, ). 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’ , although Lord Steyn had found he was regularly sedated to remain tractable . 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
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’ , 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 . 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 .
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 . 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
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 .
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.
Cheshire West in the Supreme Court
Given the far-reaching consequences of the Supreme Court’s decision, considered in the next chapter, it is important to remind ourselves of this background of extraordinary, and often inconsistent, illogical and unjust, judgments, all but eliminating the functioning of the DoLS in social care settings.
Following the Court of Appeal rulings in Cheshire West and P & Q, the ECtHR handed down its landmark ruling in Stanev v Bulgaria, and further judgments finding people to be deprived of their liberty in ‘social care’ settings, repeating the same formula it had used in HL v UK that they were subject to continuous supervision and control, not free to leave, and deprived
Reflecting the significance of the issue and the potential for divergent opinions, seven Supreme Court justices heard the case, including Lord Neuberger the court’s president and Lady Hale, its deputy president. The Supreme Court granted the EHRC, the National Autistic Society and Mind (jointly) and the AIRE Centre permission to intervene. No fewer than 20 leading barristers represented the parties and intervenors. The courtroom benches were full of spectators consisting of academics (including myself), civil servants, lawyers, health and social care professionals, NGOs and others from the small and interconnected world of DoLS enthusiasts. The courtroom felt very far removed from the lives of MIG, MEG and P, who did not attend.
Lady Hale gave the leading judgment, and – perhaps surprisingly in view of the outcome – Lord Sumption agreed with her. Lady Hale’s career began as a respected academic authority on mental health and family law, an authority she performed in the courtroom when occasionally correcting counsel for misunderstandings of the law.7 She became a Law Commissioner, working on proposals for the MCA (Chapter 6), the Children Act 1989 and other areas of family law. As a judge she decided several landmark cases concerning capacity, including a case extending the capacity jurisdiction into non-medical-welfare matters (Re S (Hospital Patient: Court’s Jurisdiction)  Fam. 26) and a celebrated judgment on the importance of ‘wishes and feelings’ in best interests decision making (Aintree University Hospitals NHS Foundation Trust v DJ). She did not mind ruffling the feathers of her brother judges (for example, R (McDonald) v Royal Borough of Kensington and Chelsea  UKSC 33) or the government (for example, R (Miller) v The Prime Minister  UKSC 41). A celebrated feminist judge (Hunter and Rackley, 2020), she drew the ire of the Daily Mail for the Children Act proposals for removing ‘the ultimate rights of parents over the care of children’ and placing them ‘firmly in the hands of the state’, and for those on the MCA (Oddie and Torode, 1995). An analysis of her Supreme Court judgments found that the dominant value was ‘universalism’ and that ‘[w]hen universalism was opposed to power, Lady Hale supported universalism in all cases’ (Cahill-O’Callaghan, 2020: 148).
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’ . 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.
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’  (see also Lord Kerr at ). To see things otherwise was to let the ‘comparative benevolence’ of a person’s living arrangements ‘blind us to their essential character’ . Drawing a striking contrast with infantilizing play pen imagery, she commented that ‘[a] gilded cage is still a cage’ .
The dissenting justices stressed that neither MIG, MEG nor P ‘evinced dissatisfaction with or objection to’ their placements , describing them as ‘people living happily in a domestic setting’ , . 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’ , . 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’ . Lord Kerr asserted that deprivation of liberty was an ‘objective state’, not dependent ‘on one’s disposition to exploit one’s freedom’ . 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 . 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 (, , , ). 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’ , 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 . It is ‘axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race’ . 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 . 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’ . 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.
If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person.
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
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’ (, ).
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 . 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’ . 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’ . 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
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 . 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.
Responses and backlash
The Supreme Court’s judgment sent shockwaves through adult social care and the courts. The Cheshire West earthquake was – as Butler and Drakeford (2005: 5) wrote of scandals – ‘a powerful signal that change is occurring’, that ‘pressure for change has reached unsustainable levels’, after which ‘we have to reconstruct the world we inhabit’. The inconsistencies and paradoxes of the post-carceral era, of people ‘liberated’ from legal and ‘institutional’ structures yet remaining under constraint in the community, could no longer be contained. New questions of consent, capacity, legal personality and human rights unsettled a realm of legal ghosts. Cheshire West rejected the founding principle of post-carceral legal thought – informality – with a new kind of legalism. ‘In a sense’, Lady Hale observed, ‘the wheel has turned full circle’ .
I will revisit the legal and administrative aftermath of the judgment in the next chapter, including new legislation – the Mental Capacity (Amendment) Act 2019 – establishing LPS to replace the DoLS. Here, I turn to immediate reactions to the judgment from different audiences. Many welcomed the ruling. Civil society groups and social care professionals found it plausible to describe the appellants as detained and felt the universalist ethos of this new legalism expressed their own professional values. Others sounded doubts as to whether this particular form of legalism would resolve the (acknowledged) problems of the post-carceral era, highlighting the sheer scale of what must now be regulated. Meanwhile, some rejected the judgment,
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
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’.
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
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, ). 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 . 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  EWCA Civ 1054).
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
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
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’.
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),
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.
MIG and MEG were referred to as P and Q, respectively, by the Court of Appeal, but to avoid confusion with P in the Cheshire West case I refer to them as MIG and MEG throughout.
Emphasis in judgment.
An online recording of the seminar, organized by One Crown Office Row (2012), has been taken down, but A. C. Grayling has kindly given permission for reproducing his remarks.
Emphasis in judgment.
Currently this is explicitly the case under the DoLS and judicial authorizations under s16 MCA, however the ‘best interests’ criterion has been removed from the LPS, creating some potential complications (Series, 2019).
Emphasis in judgment.
In one notable courtroom intervention, she interrupted counsel for the AIRE Centre, who had argued that the phrase ‘merely’ should be read into article 14 CRPD, so that it would read that a person should not be deprived of their liberty ‘merely’ because of their disability, demonstrating her awareness of the considerable debates on this point in the negotiations of the CRPD.
I am grateful to Professor Rosemary Hunter for her help in thinking through this point.
Jersey is a Crown Dependency and Gibraltar is a British Overseas Territory. They are closely related but distinct from the UK legal system. They have their own human rights legislation, and their highest court of appeal is the Judicial Committee of the Privy Council. Supreme Court justices sit on this committee, but UK Supreme Court rulings are not directly binding on Crown Dependencies or British Overseas Territories.
Guernsey is also a Crown Dependency.