Legislative Scrutiny: Mental Capacity (Amendment) Bill Contents

2Defining deprivation of liberty

11.In our earlier report on this issue, we recommended that Parliament should consider providing a statutory definition of what constitutes a deprivation of liberty in the case of those who lack mental capacity. This is necessary in order to clarify the application of the Supreme Court’s “acid test”, whilst being mindful of the fact that any definition must comply with Article 5 ECHR.17

12.There is no statutory definition of deprivation of liberty in the Bill and unless it is amended to include one, the question of what constitutes a deprivation of liberty will continue to be determined by reference to Article 5 ECHR, as interpreted by the Supreme Court in Cheshire West.

13.The European Court of Human Rights (ECtHR) has provided that a person is deprived of liberty for the purpose of Article 5 ECHR where the following three elements are present:

a)Confinement in a particular place for a not negligible period of time (the objective element);

b)Lack of valid consent (the subjective element);

c)Attribution of responsibility to the State (i.e. where the State knows or ought to know).18

14.In articulating its definition of Article 5 ECHR in a health and social care context, the Supreme Court considered Strasbourg case law, although they noted there was no precise precedent. They decided (by a majority) that a person is subject to “confinement” when the person concerned is “under continuous supervision and control” and “not free to leave”,19 to be determined “primarily on an objective basis”.20 It did not matter whether the individuals in this case were content or compliant. As Lady Hale said, “a gilded cage is still a cage.”21 This judgment set the “acid test” for determining when a person is deprived of their liberty.

15.Following Cheshire West, a group of people who were not previously generally considered to be deprived of their liberty for the purposes of Article 5 EHCR are now said to be so. While this may be in accordance with the ‘living instrument’ principle, evidence presented to our Committee by several witnesses raised serious doubts about the application of safeguards to those living in domestic settings. For example, Mark Neary, who has a son with autism, believes that the current definition is too wide as it captures his son, who is living contentedly in his own home. Mr. Neary explained:

“Steven is currently being assessed for whether he is being deprived of his liberty in his own home. Since October 2016, he has had his own place. He is very much king of his castle in his own place. He requires 24/7 support, which is either me or a member of the support team. It was decided last week that Steven is being deprived of his liberty in his own home on two bases: first, that he is not free to leave, because he needs support workers to go with him when he goes to the shop or goes swimming; and, secondly, that he is under constant supervision.

“I find it very difficult to square that one. When I see him going around his everyday life, interacting with his support workers and getting them to make a toasted cheese sandwich for him, that does not feel to me like supervision. That does not feel to me like a deprivation of liberty.”

16.We understand the Supreme Court’s non-discriminatory approach to the meaning of liberty. Nonetheless, there is a danger that a scheme which applies too widely will be so light touch as to reduce protection for those who truly need it. We continue to fear that use of the “acid test” alone, without further clarification, risks (i) perpetuating the current backlog of cases, (ii) making the new scheme unworkable, (iii) infringing the Article 8 rights of cared-for persons and (iv) diverting acutely needed resources away from front-line care which are essential to promote and protect the human rights of cared-for persons.

17.A definition on the face of the Bill is important to give cared-for persons, their families, and professionals greater certainty about the parameters of the scheme. It would also ensure that scrutiny and resources are deployed where necessary. It is undeniable that any definition in statute may be revised or refined by future case law but, in our view, it is not possible to design and implement an effective system of safeguards without having a clear sense of to whom it should apply.

18.This issue has been raised in parliamentary debates on the Bill and the Government has indicated that it is open to further discussion on this point.22

19.The Bill does not set out a specific ‘route’ for authorisations for persons living in their own home, however it is understood that it is envisaged that the local authority or clinical commissioning group would carry out the required assessments. We seek further clarity from the Government about how and by whom assessments will be made in domestic settings. It is not clear to what extent the requirements for authorisations would be extended to self-funders who, or whose families, make their own domestic care arrangements.

Options for defining deprivation of liberty

The ‘causative’ approach

20.Providing a statutory definition of deprivation of liberty is made difficult by the lack of clarity in Strasbourg case law. The evidence we received to our inquiry suggested two main approaches which are set out below.

21.The first is to further refine the meaning of ‘confinement’ in the context of persons who lack of capacity. Sir Nicholas Mostyn, a High Court judge suggested that this could be achieved by taking a ‘causative approach.’23 That is to say that an individual is deprived of liberty only where the cause of their confinement is continuous supervision and control (as opposed to their underlying disability or condition). This is the approach that was taken in the case of Ferreira—a case concerning life sustaining treatment.24

22.One argument in favour of this approach is that it is better aligned to the Strasbourg case law, which mandates a fact-sensitive approach and which, in determining whether someone is deprived of their liberty, takes into account a range of factors such as the intensity of the restrictions in question.25

23.This reasoning may also go some way towards limiting the tension between Article 14 UNCRPD and Article 5(1)(e) ECHR. The Committee on the Rights of Persons with Disabilities has considered that Article 14 UNCRPD means that deprivation of liberty on the basis of disability represents arbitrary detention.26 However Article 5(1)(e) ECHR permits detention of those with ‘unsound mind’ in accordance with a procedure prescribed by law. A fact-sensitive approach may help to navigate a middle ground between these two different approaches.

24.Arguably, it is far from certain that a ‘causative’ test would be any easier than the “acid test” to apply in practice. It may prove difficult for those operating the safeguards to distinguish whether a person’s disability, their medication, or the restrictions deemed to be required because of their condition, is the ultimate cause of the deprivation of liberty. It may also be viewed as discriminatory as it may, at least in practice, result in a different approach depending on the nature of a person’s disability or lack of capacity.

25.In his submission, Sir Nicholas Mostyn also raised concerns about the meaning of “freedom to leave” in the “acid test”.27 He points to the interpretation given by Sir James Munby in the case of Re D (A Child)28 in which he stated that he considered the Supreme Court to have meant “leaving in the sense of removing himself permanently in order to live where and with whom he chooses” and not merely “leaving for the purpose of some trip or outing.” He felt that this clarification should also form part of the definition.

The ‘valid consent’ approach

26.An alternative approach is to maintain the unequivocally non-discriminatory approach to confinement set out in the “acid test” but to revisit the second limb of the definition, that of ‘valid consent’. Currently the position is that if an individual is deemed to lack mental capacity, then they have no legal capacity and cannot give valid consent. It has been suggested that a more nuanced approach could be taken that allows for the fact that it is possible to manifest assent to a situation through words, behaviours or actions.29 Such an approach would follow that of the ECtHR in the case of Mihailovs, which distinguished between de jure capacity to consent and de facto ability to give valid consent.30

27.To ascertain whether or not ‘valid consent’ has been given would involve identifying the individual’s wishes and preferences and, on that basis, determining whether they are content and consenting to their care and treatment. It is important to stress that valid consent could not be deemed to be demonstrated simply by the absence of an objection. It could only be given by evidence of a positive wish to remain in the relevant place and receive care there under the regime in place for them.

28.Such an approach might be judged to be appropriate in situations in which no coercion is being exercised. The ECtHR has considered the presence or absence of coercion as a factor in determining whether an individual is deprived of liberty, but this was not considered in detail in Cheshire West.

29.It may also better reflect the spirit of Article 12(2) of the UN Convention on the Rights of Persons with Disabilities (CRPD), which says that “States Parties shall recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life.” In General Comment No. 1 on Article 12, the UN Committee on the Rights of Persons with Disabilities emphasised the crucial importance of ensuring that steps are taken to support individuals to exercise their legal capacity, including by means of supported decision-making. That is a process of decision-making which requires support to be given to a person to make their own decisions, and where such is not possible, for any decision to be taken on the basis of the best interpretation of an individual’s known wishes and preferences in respect of that decision.

30.The General Comment on Article 12 is critical of approaches which say that people should only have legal capacity if they have mental capacity. The CRPD Committee says that “perceived or actual deficits in mental capacity must not be used as justification for denying legal capacity”.31

31.There are concerns that taking this ‘valid consent’ approach leaves potentially vulnerable people at risk if they are deemed not to be deprived of their liberty. We understand these concerns and stress that we are not advocating an absence of safeguards for those whose care arrangements are restrictive of their liberty. We question whether, for those who are not subject to coercion and are able to express their wishes and feelings, there are not more appropriate ways of providing safeguards, for example through improved adult safeguarding procedures. We recognise, however, that there is difficulty in introducing an arguably contradictory position that the cared-for person does not have legal capacity to consent to their care and treatment due to their lack of mental capacity, but may nevertheless be deemed to consent if they are able to express their wishes and feelings.

32.We recognise that these issues are complex and require considerable expertise to ensure that any statutory definition is pragmatic, medically appropriate, non-discriminatory, and compliant with Article 5. Whilst we are mindful of the inherent difficulties, nevertheless, we believe that the lack of a statutory definition may result in persistent problems with the new scheme. We therefore recommend that a workable definition is included in the Bill and consider that the two approaches discussed above are worthy of Parliamentary debate. We suggest the following amendments to ensure that this difficult issue is given the consideration it deserves:

Schedule 1, paragraph 2,

Amendment 1

Page 5, line 33, at end insert -

“(1) “For the purpose of paragraph (2)(1)(b), a cared-for person will only be deprived of their liberty if:

(a)the cared-for person is subject to confinement in a particular place for a not negligible period of time; and

(b)the cared-for person has not given valid consent to their confinement.

(2) For the purpose of paragraph (2)(2)(a), a cared-for person is subject to confinement where:

(a)the cared-for person is prevented from removing himself or herself permanently in order to live where and with whom he or she chooses; and

(b)the dominant reason is the continuous supervision and control to which the cared-for person is subjected, and not the underlying condition.

Amendment 2

Page 5, line 33, at end insert -

“(2) For the purpose of paragraph (2)(1)(b), a cared-for person will only be deprived of their liberty if:

(c)the cared-for person is subject to confinement in a particular place for a not negligible period of time; and

(d)the cared-for person has not given valid consent to their confinement.

(3) For the purpose of paragraph(2)(2)(b), a cared-for person is deemed to have given their valid consent where:

(e)the cared-for person is capable of expressing their wishes and feelings (verbally or otherwise);

(f)the cared-for person has expressed their persistent contentment with their care and treatment arrangements;

(g)there is no coercion involved in the implementation of the cared-for person’s care and treatment arrangements; and

(h)paragraphs (2)(3)(a) to (c) are confirmed in writing by the two professionals, one of whom must not be involved in the implementation of the cared-for person’s care or treatment arrangements.

33.We note that taking such an approach here would have implications for other provisions of the Mental Capacity Act and should in time prompt a wider review of legal capacity.


17 Joint Committee on Human Rights, Seventh Report of Session 2017–19, The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards, HC 890 / HL Paper 161, para 45

18 Storck v Germany (Application No. 61603/00) at para 74; Stanev v Bulgaria (Application No. 36760/06) at para 117

19 Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO 16, paras 49, 63 and 87

20 Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO 16, paras 76–87

21 Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO 16, para 46

22 HL Deb, 5 September 2018, col 1848

23 Written evidence from Sir Nicholas Mostyn (DOL0012) submitted to the Committee’s inquiry into The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards.

24 Ferreira v HM Senior Coroner for Inner South London and Others [2017] EWCA Civ 31

25 Written evidence from Sir Nicholas Mostyn (DOL0012) submitted to the Committee’s inquiry into The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards.

26 UN Committee on the Rights of Persons with Disabilities, Guidelines on article 14 of the Convention on the Rights of Persons with Disabilities. Adopted during the Committee’s Fourteenth session, held in September 2015.

27 Written evidence from Sir Nicholas Mostyn (DOL0012) submitted to the Committee’s inquiry into The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards.

29 Written evidence from Alex Ruck Keene (DOL0120) submitted to the Committee’s inquiry into The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards.

30 Mihailovs v Latvia [2013] ECHR 65

31 Office of the United Nations High Commissioner for Human Rights, Committee on the Rights of Persons with Disabilities, General Comment 1 on Article 12 (Equal recognition before the law), Eleventh Session, 2014




Published: 26 October 2018