In my previous article, I summarised the key points of the decision, and gave some initial comments. I want to return today to consider some further points in the judgments of the Supreme Court Justices, together with some more observations upon where we go from here. I will not amend further my original post so that it can stand as my initial instincts.
The acid test
The first point is to note, in response to questions put to me yesterday, that it seems to me entirely clear that the ‘acid test' proposed by Lady Hale (at para ) is that of a combination of continuous supervision and control and a lack of freedom to leave. This can be seen from the judgment of Lord Neuberger at para  where, expressing his agreement with Lady Hale, he noted that ‘the twin features of continuous supervision and control and lack of freedom to leave are the essential ingredients of deprivation of liberty (in addition to the area and period of confinement).'
Freedom to leave
What ‘continuous supervision and control' means will no doubt be the subject of considerable analysis in due course. ‘Free to leave' will also, and it may help if I set out some of my thoughts in this regard based upon my ‘Gordian knot' paper (the footnotes have been deleted but can be found at paragraphs 105-106 thereof).
(1) a person can be on a rein which appears superficially extremely long but still be subjected to a deprivation of their liberty;
(2) those in authority must be prepared to take steps to give effect to the requirement that the person is not free to leave. In other words, those charged with responsibility for the individual must have in place (or at a minimum, be in a position to and prepared rapidly to take) measures which are aimed at securing that the person does not leave the place in question save with their permission;
(3) precisely what ‘freedom to leave' will mean in each case will depend upon the context. For instance:
(i) in the case of the individual detained in the back of a police van for purposes of transporting them to hospital, the freedom to leave in question is the freedom to leave that van for purposes of going any place than that van;
(ii) mutis mutandis, the same would apply as regards the case of an individual detained in an ambulance for purposes of transporting them to a care home for purposes of residing there to receive care and treatment;
(iii) in the case of an adult without the capacity to decide whether to stay in hospital to consent to medical treatment whom the authorities consider must stay in hospital to receive that treatment, then questions of longer term residence will not arise and the focus will simply be upon the freedom to leave that hospital pending the completion of the necessary treatment;
(iv) in the case of an adult whom the authorities consider should reside at a care home on a sustained basis, then the freedom to leave will be the freedom to reside other than at the care home.
HL, children and state involvement
One point identified by the minority (see para  of the judgment of Lords Carnwath and Hodge) is whether the acid test proposed by Lady Hale would have led to the result that HL would be considered to be deprived of his liberty after his return from Bournewood hospital to live with his paid foster carers, Mr and Mrs E (the former of which I should say that I should had the pleasure of meeting yesterday and will, we hope, be giving his reactions to the judgment in the special Cheshire West newsletter we will be circulating at the start of April). As both the minority and Lady Hale noted (the latter at para ) no one at any stage suggested that HL's placement would have represented a deprivation of liberty. Lady Hale in her discussion of the case identified - correctly - that the court had not been called upon to confront that issue.
Before I give my answer to this question, I would note specifically in relation to HL's case that:
(1) It always seemed to me that there was a very real danger in the approach advanced by the Court of Appeal in Cheshire West that if HL's circumstances were to be examined again through the prism of tests they identified, he would not found to be deprived of his liberty, which would be a truly perverse outcome;
(2) It is right to note that no one before the Supreme Court sought to uphold the ‘comparator' test, nor was it endorsed by the minority. However, to the extent that the minority proposed a test - that whether those using ordinary language would describe a situation as amounting to a deprivation of liberty (see para ) - it is worth recalling that the House of Lords did not consider that HL was deprived of his liberty.
The case of HL (and also that of MIG and MEG) raise starkly two distinct questions:
(1) What does it mean to say that a situation objectively amounting to a deprivation of liberty is imputable to the State so as to bring it within the scope of Art 5(1)?
(2) What Strasbourg meant when it said in Storck and Shtukaturov when it said that the State is obliged to ‘take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge' (Stanev at para 120, cited by Lady Hale at para  as indicating that ‘[o]n occasions, therefore, the state may be accountable for arrangements which it has not itself made.')
In respect of the first question, is seems to me that an inescapable conclusion of the decision in Cheshire West is that wherever ‘health and social care bodies [have made] arrangements' for incapacitated adults (see para ) then, assuming that those arrangements give rise to situations of continuous supervision and control and a lack of freedom to leave, there will be a deprivation of liberty falling within Art 5(1). So, yes, I would say that HL may well have been deprived of his liberty for purposes of Art 5(1) ECHR, but we cannot answer that question definitively now in the absence of detail as to the precise arrangements in place for him at Mr and Mrs E's home.
It is perhaps also worth noting in this regard that s 64(5) of the MCA 2005 provides that ‘for purposes of [references to ‘deprivation of a person's liberty], it does not matter whether a person is deprived of his liberty by a public authority or not.' It seems to me that this means that it can properly be said that Parliament by enacting this provision should be taken to have assumed State responsibility in respect of all placements, whether those be in public institutions or in private care homes or in the private homes of paid foster carers, which amount (objectively and subjectively) to a deprivation of liberty. Put another way, it seems to me that wherever (and however) a person is placed by the State, if they are objectively deprived of their liberty there and are unable to give valid consent to the same, Parliament has deemed that such should be considered to fall within the scope of Art 5(1) for purposes of the MCA 2005.
The second question is one that I suspect will be the subject of judicial scrutiny in short order because it will arise in relation both to children and adults cared for under private arrangements at home. In both cases, the questions will arise of whether: (a) they can be said to be objectively deprived of their liberty; and (b) what, if any, obligations are then imposed upon the state as a result.
When I wrote my long paper on deprivation of liberty, I found myself troubled in particular by both these categories, and I will address them both in turn here.
I addressed the position of children at paragraphs 84-90 of my paper. In those paragraphs, I reached the conclusion for reasons that are set out fully there that it was possible properly to identify from the Strasbourg jurisprudence that ‘the position of the incapacitated adult under Art 5 of the Convention [is] as qualitatively different to that of a child (whether or not that child is suffering from a mental disorder)' (I also noted that children and adults were treated differently for purposes of the UNCRPD)
I was at the time of writing the paper - and remain - concerned about recourse to concepts of parental responsibility as negating what would otherwise be a deprivation of liberty, and it is this aspect in the judgments of Lady Hale (para ) and Lord Neuberger (para ) that is the only aspect of the decision that currently troubles me, not least because neither of them made reference to the decision in RK v BCC and Others  EWCA Civ 1305,  COPLR 146, in which the Court of Appeal accepted the consensus at the Bar that the decision of the ECtHR in Nielsen stood for the proposition that an adult in the exercise of parental responsibility could impose (or authorise others to impose) restrictions on the liberty of the child, but that such restrictions could not in their totality amount to a deprivation of liberty, and that a parent could not lawfully detain or authorise the deprivation of liberty of a child.
In analysing the position of MIG and MEG, Lord Kerr, it seems to me, took a different approach to Lady Hale and Lord Neuberger, focusing on a comparator - not that suggested by the Court of Appeal - but rather that of teenagers as the same age and familial background to them, but of full capacity (see para ), and also proceeding on the basis that all children ‘are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances' (para ). Albeit expressed in a different form, Lord Kerr's views accord much more closely with the observations in my paper, but I recognise that he cannot be said to have been in the majority in his analysis of the position of children.
In any event, however, it seems that the law is now tolerably clear that constraints of the nature imposed upon MIG and MEG will ‘not necessarily amount to a deprivation of liberty for the purpose of Art 5 if imposed by parents in the exercise of their ordinary parental responsibility and outside the legal framework governing state intervention in the lives of children or people who lack the capacity to make their own decisions' (Baroness Hale at para ). This means, therefore, that in the majority of cases involving children cared for at home by their parents, the second question posed above of ‘secondary' state responsibility will not arise.
Adults cared for at home
I dealt with the position of such adults at paragraphs 91-101 of my paper. As I noted, it seemed to me ‘all but inevitable that Strasbourg would, if asked the question, strive to find a way in which to conclude an adult cared for in their home environment by family members (either exclusively or with the support of paid carers) would not be deprived of their liberty. The problem is how properly to give such an answer' (paragraph 92). I noted that there were two ways of approaching the problem: (1) focusing on the objective circumstances; or (2) upon the role of state involvement. I discounted the first on the basis that ‘seeking to escape from the coils of Art 5 by reference to the differences in the objective circumstances of an adult living at home compared to an adult subject to a placement by a public authority leads very quickly into a blind alley because (without the addition of concepts which unnecessarily complicate the issue) one reaches a position whereby either far too many or far too few adults are caught by the definition of Article 5 ECHR' paragraph 93(a). I therefore turned to examine the concept of state responsibility in more detail - noting as I did that I had initially considered it not be a very promising route. It seemed to me that, whilst it was not easy to ‘discern a route which is truly satisfying intellectually and philosophically,' it was properly possible to analyse the Strasbourg jurisprudence relating to positive steps required of the state in relation to ‘private' deprivations of liberty as indicating that - notwithstanding the apparent wide breadth of the general proposition most recently stated in Stanev - the Court has always been at pains to identify State involvement as a precursor to finding that a ‘private' detention came within the scope of Art 5.
This meant, in turn - and I think still means because the question of secondary state responsibility was only very lightly touched upon by Lady Hale - that, as I said in my paper:
‘98. ... there is nothing in the Strasbourg jurisprudence which would prevent proceeding on the basis that where an adult is cared for at home in circumstances which amount to a deprivation of their liberty but State involvement is not causative of that deprivation of liberty, then the threshold for such a circumstance to come within the scope of Article 5 can be set relatively high.
99. Put another way, if the only way in which State responsibility for an (objective) deprivation of liberty within the home environment could arise is by virtue of the positive obligation imposed by Article 5, then the Court can properly take a relatively stringent view of what measures are required to afford such an individual ‘effective protection' and/or what would constitute ‘reasonable steps' to prevent such an objective deprivation of liberty. In the case of Mrs Rochester, then it might well be thought that those reasonable steps would extend to taking proceedings as to get her unlocked from the attic and transferred to an appropriate psychiatric institution. Conversely, in the case of an adult cared for by family members at home, who is considered to be deprived of their liberty only because (to jump ahead) they are not free to leave, then it might well be thought that Article 5 imposed no necessary obligations upon the State to afford that individual effective protection.
100. Conversely, where State involvement is causative of an (objective) deprivation of liberty - most obviously where the State has removed the individual from their home and put them in another location (whether a hospital or a care home - then such a circumstance will fall squarely within the parameters of Article 5. I should note that the same would also apply where the adult is ‘allowed' by the State to remain in their own home, but the regime of care amounting to a deprivation of liberty there is imposed by State authorities. Again, the State's involvement would be causative of an objective deprivation of liberty.' (footnotes deleted).
As noted above, I suspect that these issues will be the subject of judicial scrutiny in short order, which I will await with great interest.
Lady Hale considered the most difficult aspect of the case to be the question of ‘tacit acceptance' which was apparently relied upon the ECtHR in Mihailovs v Latvia to negate the existence of a deprivation of liberty. As she noted, if this was relevant in Mihailovs, ‘why should the same tacit acceptance of MIG and MEG not be relevant too?' (para ). Lady Hale identified a number of possible distinctions before acknowledging that none of them were satisfactory, but that, in any event, such was to focus upon the wrong aspect - it was not the positive aspects of the care that counted, but rather the constraints that matter.
I would, respectfully, suggest that there was a rather better distinction to draw. As I noted in my paper (apologies for harking back to this endlessly!):
‘the Court's finding in [Mihailovs] that M had tacitly accepted his placement is, in this respect, difficult to square with efforts that had been made (though possibly not fully pursued) by his newly-appointed guardian for M to be allowed to leave the centre (see for example paras  and ). As discussed below, the circumstances of this case (as with Stanev) are distinguishable from those which prevail in England and Wales, because, as with the Bulgarian legal system under consideration, the Latvian legal system is status-based. In other words, a person can be wholly or partially divested of legal capacity by an appropriate body (often, it would appear, in circumstances which have caused considerable concern to the Court). In such instances, the Court has therefore been at pains to secure as effective as possible a respect for the autonomy of the individual in question by allowing the possibility that, notwithstanding the fact that they have been formally divested of their capacity, they may still be in a position to understand their position and to act upon that understanding. This requires the Court - in essence - to undertake a rudimentary capacity assessment of its own in relation to the specific question of whether the person has capacity to consent to the confinement in question (or, to use the Court's words, express their ‘true wishes and preferences'). Depending on the result of that assessment, the Court can then decide whether or not the person has ‘validly consented' to their confinement. This is rather different, I would suggest, to the position that prevails in England and Wales' (paragraph 51).
In other words, we were never in ‘tacit acceptance' territory, and
(a) a person either has or lacks capacity to consent to arrangements that objectively amount to a deprivation of liberty;
(b) it is always up to the person or body asserting that the individual has consented to establish on the balance of probabilities that they have such capacity (a necessary component of which is that they have been given the relevant information - as to which see LDV); and
(c) it is necessary for that consent to be valid - ie freely given and not the result of duress or coercion - a problem which is particularly acute in situations of power imbalance (the most obvious example being in relation to informal psychiatric patients: see Rabone).
Judgments which should now be revisited
With thanks to Victoria Butler-Cole for stimulating my thoughts in this regard, a partial list of judgments which it seems to me caution should be exercised in future:
(1) CC v KK  EWHC 2136 (COP),  COPLR (forthcoming) (given the extent of the control over KK's care and movements);
(2) C v Blackburn-with-Darwen Council  EWHC 3321 (COP),  COPLR 350 (in particular in relation to the significance placed upon the fact that C had nowhere else to go);
(3) Re A and Re C  EWHC 978 (Fam),  COPLR Con Vol 10 (at least insofar as the basis upon which Munby LJ held that there was not an objective deprivation of liberty - founded, fundamentally, upon its benevolent purpose; it will also be likely to be looked at again in relation to the role of ‘secondary' state responsibility for private deprivations of liberty);
(4) As noted above, RK v BCC (role of parental responsibility in determining whether there is an objective deprivation of liberty of a child) will have to be revisited in light of the holding of the majority of the Supreme Court. It may well be right, but for a different reason.
Conversely, Mr Justice Baker's decision in A Primary Care Trust v LDV  EWHC 272 (Fam),  COPLR 204 survives intact, I would suggest (and may appear somewhat prescient), as does, perhaps slightly ironically, Munby J's decision in JE and DE v Surrey County Council  EWHC 3459 (Fam),  2 FLR 1150.
The practical implications
I can quite see the concerns raised by some commentators - most pertinently Richard Jones - as to the practical implications of the judgment. It has dramatically widened what had come to be understood (whether or not correctly) as being the scope of Art 5(1) ECHR. Amongst other consequences, it would seem to me that the default working assumption in respect of care homes in which those with dementia are cared for is that they should be treated as being deprived of their liberty. Supported living and adult foster placements will also need to be reviewed urgently. And it does not take too much to imagine that there will be some who are already contemplating how to bring HRA 1998 claims for declarations and damages...
But, whilst I can see these concerns, ultimately I cannot share them. Above all, I cannot share them because Art 5 - alone of all the rights with which we are concerned when we are talking about the care and placement of incapacitated adults - brings with it a right of review before an independent body. That right is vital both for the individual and also for the holding to account of care providers. It should be afforded (and be effectively afforded) to all those who properly require it. We now have a valuable opportunity to learn the lessons and to ensure that we do better in the future.
Alex Ruck Keene has been in practice at 39 Essex Street Chambers in London for over a decade, and has increasingly specialised and been recognised as a leading expert in the fields of mental capacity and mental health law. For full details of his practice, please see his Chambers webpage.
This article was originally published on the Mental Capacity Law and Policy website and has been reproduced here with permission of the copyright owner.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.