Mental Health - April 2010
Scaled down
Liberty is important, not least for the
safeguards that take its name, but what does the word
mean?
The Deprivation of Liberty Safeguards (DoLS)
are intended to protect incapable people admitted to hospitals or
registered care homes. As the title suggests, they say that
permission will be required before such people can be deprived of
liberty. Given the importance of the notion, you might imagine that
‘deprivation of liberty’ is carefully explained. It isn’t: the DoLS
use the term but don’t define it, and the accompanying code of
practice says little that is original. In fact, the code simply
restates the existing law, which might be where the problems
begin.
The DoLS seek to remedy defects identified by
the European Court of Human Rights (ECtHR) in the Bournewood case.
Those were defects in the common law, which the court said was too
vague and too lacking in procedural safeguards to give many
incapable people the protection demanded by the ECHR (HL v
United Kingdom [2004] 40 EHRR 761).
The defects would only be apparent where
Article 5 of the Convention was engaged; where, in other words,
someone was deprived of liberty. The ECtHR said, “the
starting-point must be the concrete situation of the individual
concerned”, and that in deciding whether a particular intervention
deprives someone of liberty, “account must be taken of a whole
range of factors arising in a particular case[,] such as the type,
duration, effects and manner of implementation of the
[intervention] in question.” Crucially, the court said the
distinction between deprivation of liberty, which will engage
Article 5, and a mere restriction upon liberty, which will
not, “is merely one of degree or intensity and not one of nature or
substance” (HL v United Kingdom, above, paragraph
89). These words have proved extremely resonant.
The DoLS code draws heavily upon Bournewood.
Noting the comments of the ECtHR on the crucial distinction, the
code says: “It may therefore be helpful to envisage a scale, which
moves from ‘restraint’ or ‘restriction’ to ‘deprivation of
liberty’. Where an individual is on the scale will depend on the
concrete circumstances of the individual and may change over
time.”
There are, however, several problems with the
‘scale’ theory of deprivation of liberty. The first concerns its
range: rather than with ‘restriction of liberty’, which surely
comes some way along, shouldn’t the scale begin with ‘liberty’
itself?
Logically, of course, there must be a number
of points on the scale, each one representing a particular
intervention in a patient’s life, from those that represent only a
slight diminution of liberty to those that approach deprivation of
liberty. But the number of possible interventions is not fixed; new
ones might be made from-time-to-time, and any of them might be
modified in numberless ways. The second problem, therefore, is that
we can never know precisely how to populate our scale. Imagining,
as it seems we must, that the poles represent complete liberty and
its deprivation, where on that scale are the various interventions
to be placed, and, crucially, where in relation to each other? Is
putting someone in a low chair closer to deprivation of liberty
than to liberty, for example, and how does it stand in relation to
shepherding someone away from an open door?
The third problem relates to something else
said by the code: when deciding whether someone is deprived of
liberty, we might ask “does the cumulative effect of all the
restrictions … amount to a deprivation of liberty, even if
individually they would not?” This begs an obvious question: if all
we have is the scale, on which single interventions are placed
side-by-side, how are we to take account of the aggregate of two or
more of them? How, in fact, are we to aggregate them at all, and
even if we succeed in doing so, where precisely are we to place the
aggregated intervention? Is shepherding someone away from an open
door closer to deprivation of liberty than putting him in a low
chair and reducing the length of his visits from friends?
How will the scale help us decide?
Finally, of course, there is a problem
inherent in the very notion of a scale. All it does is display
subtle progressions between two points, so it cannot help us with
the DoLS. The knowledge that the use of ‘baffle locks’ tends rather
more to the right-hand end than to the left is worthless. When what
we most require is a ‘yes/no’ answer, the scale is deliberately
designed to yield no such thing.
If, as seems to be the case, there is
widespread confusion about what it means for someone to be deprived
of liberty, the Code of Practice only serves to compound the
problem. It advances a ‘scale’ theory that is both logically and
logistically flawed, and in so doing, it misrepresents the problem
it purports to have solved.
David Hewitt,
Partner
Weightmans LLP
The DoLS Code of Practice may be found
here.