The statute of liberty

There has been increasing litigation on issues concerning deprivation of liberty and the circumstances when this may be appropriate.

These are issues of particular concern in the care sector, where an individual’s right to liberty and security of person, may conflict with that individual’s particular care needs.

Article 5 of the European Convention on Human Rights (ECHR) enshrines the right of every person to liberty and security of their person and prevents the unlawful deprivation of an individual’s liberty. Detention is however expressly permitted by Article 5 in limited circumstances, including when the detainee is of an unsound mind.

The principles behind Article 5 have been incorporated into English law by (amongst other legislation) the Mental Capacity Act 2007. This Act permits deprivation of an individual’s liberty if that person lacks capacity.

A person lacks capacity if at the material time he is unable to make a decision for himself because of an impairment of, or disturbance in the functioning of, the mind or brain: section 2(1) Mental Health Act 2005. Certain procedural and statutory safeguards must also be in place.

The Supreme Court has defined a Deprivation of Liberty (‘DoL’) as any circumstance in which an individual is, “under continuous supervision and control and [is] not free to leave.”

As such a DoL can conceivably include any circumstances in which a person’s liberty is deprived.

This will include any imposition which in some way affects their freedom or the degree of supervision exercised over them.

This could extend to many aspects of residential care including routine care provisions.

The use of bed rails might count, if this deprived an individual of the ability to leave their bed when they chose.

There has been a significant increase in the number of DoL requests (over 30,000 in 2014/15).

Mostyn J has commented that, “...local authorities have to err on the side of caution and bring every case, however borderline, before the court. For if they do not, and a case is later found to be one of deprivation of liberty, there may be heavy damages claims (and lawyer’s costs) to pay.”

In other words, it is far more prudent for a local authority to request a formal DoL order in circumstances where it may not be necessary, rather than risk unlawfully depriving someone of their liberty. This arguably amounts to false imprisonment and/or breach of Article 5, with all the consequences that would entail.

Care homes are likely to fall within the definition of a public authority if they are in public ownership, or if they are in private ownership and carrying out functions of a public nature - when they are defined as ‘hybrid’ public authorities.

The Health and Social Care Act 2008 states that where accommodation, together with nursing or personal care, is provided by a private care home and the local authority are funding the care, then that care home is deemed to be a ‘public authority’ for the purposes of the ECHR. This provision extends the reach of Article 5 beyond what the Supreme Court found to be a private function of care homes. 1

Independently of the DoL process, section 1 of the Coroner’s and Justice Act 2009 obliges a coroner to commence an investigation into a person’s death if it appears that the deceased died a violent or unnatural death, if the cause of death is unknown, or if the deceased died whilst in state detention. ‘State detention’ includes persons detained in accordance with mental health legislation.

The Chief Coroner, Peter Thornton QC, issues Guidance Notes, one of which relates to inquests into the death of individuals subject to a DoL order.

Guidance Note 16 states that in the Chief Coroner’s view, an individual who dies whilst subject to a DoL order falls squarely within the definition of ‘state detention’ within the 2009 Act (as the deceased was compulsorily detained under the statutory framework of the state: the detention is a public function as a result of the statutory scheme which permits it).

Whilst Guidance Note 16 states that the discretion as to whether to hold an inquest in any given case rests squarely with the relevant coroner, the suggestion is that coroners should err on the side of caution and that an investigation ought to be commenced.

Coroners have no power to challenge the validity of a DoL order. Once a patient who is subject to a DoL dies, the local coroner is effectively obliged to hold an inquest.

Implications

Under the current statutory scheme, a person who lacks capacity and is in a care home for the purpose of being given care or treatment may be detained in circumstances which amount to a deprivation of liberty. No detention amounting to a DoL is permitted without authorisation (by the state) under the relevant statutory scheme.

For care homes caring for service users who lack capacity, it is important that any care plan or assessment should include consideration of whether a DoL application will be required and should err on the side of caution.

In addition, where a DoL application is made, there is a likelihood that an inquest will be triggered if the detainee/service user dies whilst subject to an order. This increases the possibility that care homes may be subject to criticism and/or lines of questioning which they may have otherwise not faced.

The death of a detainee/service user therefore, requires detailed consideration of the issues in each case and a requirement for careful management of any inquest procedure, especially the pre-inquest case management, in determining the scope and extent of the inquest.

For care homes therefore, it is important to properly assess whether or not a DoL application is required and to subsequently seek legal advice, where there is subsequently a death (whatever the cause) and a resulting inquest.