35.The Law Commission did not, understandably, grapple with the difficult question of defining ‘deprivation of liberty’ when considering the reform of the DoLS scheme. The Law Commission’s proposals are based on the ‘acid test’ for ‘confinement’ as set out in Cheshire West, which is the current law. On the one hand, Lady Hale sets out strong policy reasons for adopting a wide definition of deprivation of liberty, based on the vulnerability of the cohort of people who lack mental capacity and the need to ensure decisions are made in their best interests. On the other, this judgment has led to an unsustainable situation and has captured many people within the definition who may object to being categorised as deprived of their liberty. As Alex Ruck Keene, specialist mental capacity barrister, noted in evidence, at present, an individual in an adult foster placement with a devoted carer is in the same legal situation as an individual detained in a high-end psychiatric institution objecting to treatment. Our inquiry therefore considered whether Parliament should debate this issue with a view to setting out a definition in statute.
36.Sir Nicholas Mostyn and Sir William Charles, retired family court judges, submitted that the proposed LPS are based upon the acid test as a starting point and that this is legally wrong and should be revisited by the Supreme Court. Sir Nicholas noted that “no case from Strasbourg has come close to saying that the case of someone of “unsound mind” (as Article 5 puts it) falls within the terms of that article if they are being looked after in their own home.” Further, he argued that “[i]t is surely vanishingly unlikely that Strasbourg would disagree with the narrower test: it is after all completely consistent with its jurisprudence, which mandates a fact sensitive approach and which looks at the range of factors such as the intensity of the restrictions in question.”
37.Baroness Elaine Murphy agreed that a new definition is required, suggesting that:
“[t]he criteria for ‘deprivation of liberty’ needs urgent reconsideration before any new legislation is approved. I do not believe it is reasonable to include admission and / or residence of incapacitated persons in homes and hospitals where there is no objection by patient, family carers or professional carers, nor to include private individuals living by choice in their own family homes supervised by family members or professional carers. Deprivation of liberty should apply only to those who express dissent or opposition by word or deed to where they are cared for and/or to how they are treated.”
38.Mark Neary, who has a son with autism, believes that the current definition is too wide as it captures his son, who is living contently 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. When I compare it to eight years ago, that was an obvious deprivation of liberty. He was kept away from his own home. Seclusion was part of the deprivation at times. Physical restraint and medication were part of the deprivation at the time. None of that exists now in his own home, but we have come down such a crazy road in the last eight years that we cannot tell the difference between deprivation of liberty in an institutionalised unit and in someone’s own home.”
39.Graham Enderby, a long-term carer, agreed: “[w]e have gone so overboard after this judgment, it is ridiculous […] People living in their homes have often consented to be in their own homes […] They already have a care package that suits them. Just because their memory or capacity goes, they are automatically deprived of their liberty now.”
40.We recognise that deprivation of liberty is a living, evolving Convention concept rooted in Article 5, which has been defined by the European Court. The difficulty is how this is interpreted and applied in the context of mental incapacity.
41.The Supreme Court’s interpretation of Article 5 casts the net wide, capturing people who are content and those who have expressed de facto consent (albeit not ‘valid consent’ for the purpose of the law). This has led to some families feeling distressed that their loved ones are considered deprived of their liberty as a result of their care plans, as well as leading to substantial resourcing issues. This approach also sits at odds with the UNCRPD, which emphasises respecting the autonomy and wishes of those with disabilities.
42.Notably, since Cheshire West, an exception to the ‘acid test’ has been made where a deprivation of liberty is required for the purpose of life-saving treatment. In Ferreira, the court adopted a causative approach to the ‘acid test’, asking the question: is the individual under continuous supervision and control and therefore not free to leave? In other words, is it the continuous supervision and control that is preventing the individual from being free to leave, or is it the underlying condition (for example, because the individual is unconscious)? The court found that in circumstances where the individual’s underlying condition was the cause of the individual not being free to leave, then this was not ‘confinement’ for the purpose of Article 5. There has, therefore, been some backtracking from the ‘acid test’ in cases concerning life-saving treatment, which may cause confusion for frontline practitioners as to the boundaries of ‘confinement’.
43.An alternative approach to re-visiting the interpretation of ‘confinement’ would be to reconsider the meaning of valid consent (the second and subjective limb of the test for deprivation of liberty). For consent to be ‘valid’, the individual concerned must have capacity to consent. Therefore, where an individual is assessed as lacking mental capacity, they cannot give valid consent to their confinement. Graham Enderby explained that, under the current system, assessors “do not look at the individual, how they communicate or how they express any form of consent or contentment.”
44.It is arguable that ‘valid consent’ could be construed more widely than the current position, which would recognise that there are ways in which an individual, whilst lacking mental capacity, may nevertheless be capable of expressing consent to specific care or treatment arrangements. The evidence of Caroline Docking, whose daughter has severe disabilities, illustrates the complexity of consent:
“[…] [My daughter’s] life is full of things that she can do. She smiles and laughs all the time. She loves music and soap operas and concerts and shopping. She loves swimming and being out and about in her car or just for walks.
“[She] has her own home and a totally amazing group of staff who are completely in tune with her needs. They are able to know when she is happy or not so happy. They ask her opinion on every aspect of her life–even though she can’t reliably respond. They look for the very subtle signals that [she] gives to show when she is in need of something and has something to ‘say’. They take great pride in enabling her to have as full and self-directed a life as she can possibly have. They absolutely do not ‘control her’ although that is how their support is interpreted through DOLS. […].”
45.In our view, Parliament should set out a statutory definition of deprivation of liberty which clarifies the application of the Supreme Court’s acid test and brings clarity for frontline professionals. In doing so, Parliament will be mindful of the fact that any definition must comply with Article 5. The courts will be under a duty to interpret the statutory provision compatibly with Convention rights. We note the decision in Ferreira and consider that it is possible to legislate for a Convention-compliant definition that would produce greater clarity and would extend safeguards only to those who truly need them, whilst respecting the right to personal autonomy of those who are clearly content with their situation, even if they are not capable of verbalising such consent.
48 Cheshire West and Chester Council v P  UKSC 19,  MHLO 16, para 57
49 [Alexander Ruck Keene]
50 Sir Nicholas Mostyn () and Sir William Charles ()
51 Sir Nicholas Mostyn ()
52 Sir Nicholas Mostyn (), para 5
53 Baroness Elaine Murphy ()
54 [Mark Neary]
55 [Graham Enderby]
56 Ferreira v HM Senior Coroner for Inner South London and others  EWCA Civ 31
57 Ferreira v HM Senior Coroner for Inner South London and others  EWCA Civ 31
58 [Graham Enderby]
59 Alex Ruck Keene ()
60 Caroline Docking ()
61 Human Rights Act 1998,
Published: 29 June 2018