A seismic change in the Court’s approach to determining a Deprivation of Liberty

The Supreme Court’s landmark judgment in A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 will lead to a reduction in the number of people who are considered to be deprived of their liberty within the meaning of Article 5 of the European Convention on Human Right (the right for an individual not to be deprived of their liberty save in specified circumstances and in accordance with a procedure prescribed by law). Subsequently, it will result in a reduction in the number of authorisations that need to be sought either through the urgent / standard authorisation process under the Deprivation of Liberty Safeguards (“DoLS”) or through the Court of Protection. 

The case was brought by the Attorney General for Northern Ireland to determine whether a proposed revision to Northern Ireland’s Mental Capacity Act Code of Practice (the “NI Code”) was incompatible with Article 5 of the ECHR.

The proposed revisions to the NI Code include that where a person lacks capacity to make decisions regarding their care and residence, they can still give valid consent to their care and residence arrangements through the expression of their wishes and feelings. This proposed revision departs from the commonly understood position (which was not debated or determined in the Supreme Court’s previous ruling in Cheshire West because it was agreed) that a person lacking the capacity to make decisions regarding their care and residence cannot provide valid consent for those arrangements amounting to a confinement. 

The Supreme Court unanimously concluded that the revised NI Code would not be incompatible with Article 5.

However, the Supreme Court went further than the Attorney General’s application sought and set aside the determinations from the previous Supreme Court’s 2014 ruling in Cheshire West in relation to the “objective element” of Article 5. 

This decision takes effect immediately and health and social care professionals are required to apply the new law. The key headlines are below:

• Multifactorial test replaces the “Acid Test”: The “Acid Test”, set out in Cheshire West, is too crude and leads to an over-extensive interpretation of deprivation of liberty. Instead, the focus for whether a confinement amounts to a deprivation of liberty under Article 5 should be on the person’s concrete situation and take account of a whole range of factors including the type, the duration, the effect on the person and the manner of implementation of the restrictive measures in question. 
• A person lacking capacity to make decisions about their care arrangements can provide “valid consent” to a confinement: It is wrong to equate lack of legal capacity to make decisions about care arrangements with lack of “valid consent” to care and residence arrangements. If a person has a basic level of awareness about their arrangements that is sufficient to enable them to know and communicate whether they are happy or unhappy with them. As such, they are able to give or withhold “valid consent” to a confinement. If they provide “valid consent”, the confinement does not amount to a deprivation of liberty that requires authorisation under Article 5.
• Overlap between the objective and subjective elements of an Article 5 deprivation of liberty: A person’s compliance or lack of objection to arrangements that amount to a confinement is relevant to both “valid consent” (the subjective element) and to the question of whether there is an objective confinement. 
• Relative normalcy is relevant: The type of setting and the normality of a person’s care and residence arrangements (for example, if they are living in their own home or in the community) will be a relevant factor for determining whether the objective element is met and there is a deprivation of liberty under Article 5. The judgment states that where a person is living in their own home, in accordance with their wishes and feelings, the level of restrictions imposed would likely need to be more severe or extensive in order to amount to an Article 5 deprivation of liberty, such as, for example, a combination of restraint, medication, and seclusion. 
• The purpose of the arrangements is relevant: The fact that care arrangements are in place for the purpose of providing care and support is a relevant factor when determining if the objective element of Article 5 is met. 
• Physical health and mental health are relevant: Where a person is unable to exercise their physical liberty due to their physical or mental health condition, it is not likely to meet the objective element of Article 5. 
• Medication is relevant: If a person is receiving medication which effects their behaviour this will be relevant to whether they are (or are able to) giving “valid consent”.

It is clear that the Court’s ruling marks a seismic shift in the determination of whether an individual is deprived of their liberty under Article 5. There is a long list of potentially relevant factors that will need to be considered in each case in order to reach a view on whether the person is deprived of their liberty and whether their care arrangements require authorisation. We can foresee that there are going to be some areas where this is a difficult assessment to me – including, for example:

• How much “objection” indicates that the person isn’t in agreement with their care arrangements? The Supreme Court indicated that the earlier case of MEG – where MEG did receive physical restraint on a regular basis, for example, there was no deprivation of liberty as MEG was giving “valid consent”.
• How do you differentiate between behaviour that indicates an unhappiness with the care arrangements (obviating “valid consent”) and a manifestation of the person’s condition? For example, a person with advanced dementia who rattles the door handle – is this an indication that they want to leave and are unhappy, or is the person’s cognitive decline so advanced that they do not understand what a door is?
• How “normal” is “normal” in terms of care arrangements? For example, a person may live in their own home but have a 4:1 care package – is that sufficiently normal for the purpose of the objective element?

There is likely to be a period of turbulence, where professionals, legal practitioners and judges have to grapple with how to apply the multifactorial test for the objective element and what constitutes “valid consent” for the subjective element. Further guidance is expected from the Department of Health and Social Care; however there is currently no timeframe for this. A couple of initial reflections from us:

1. Simply because the care arrangements do not amount to an Article 5 deprivation of liberty requiring authorisation, does not mean that the care arrangements have to change. As long as they remain in the person’s best interests (pursuant to the Mental Capacity Act 2005), necessary, proportionate and the least restrictive alternative – there doesn’t need to be a change to the day to day care arrangements.
2. Commissioners and providers of care need to work together – the burden is on them to determine whether or not a person’s care arrangements now amount to an Article 5 deprivation of liberty. Similarly, the risk lies with them if they get that assessment wrong. In reality, Local Authorities and public body commissioners do not have the resources to immediately implement Part 8 reviews of every standard authorisation under DoLS, or return every Court of Protection authorisation to court immediately. Commissioners and providers need to agree, together, how to review each person’s care arrangements.
3. This is not the end of the CopDol11 streamlined process, although there will of course be far fewer cases. There are still cases that are appropriate for this procedure and we have had CoPDoL11 cases processed since AGNI where the court has considered the new test and still deemed it a deprivation of liberty.
4. Article 5 of the ECHR was not – and is not – the only safeguard for vulnerable people. Going forwards, there is going to be greater onus and emphasis on providers and commissioners to ensure:
   1. Proper best interest decision-making under the Mental Capacity Act 2005 – with effective, appropriately timed reviews to assure that arrangements remain in best interests, necessary, proportionate and the least restrictive alternative.
   2. Compliance with Article 8 ECHR.
   3. Compliance with their duties under the Care Act 2014 and relevant NHS regulations to review the appropriateness of packages of care.
   4. Compliance with their duties of care to the individual.
   5. Compliance with safeguarding duties – particularly, for those very vulnerable individuals who may not have an ability to form an objection to care arrangements and may not have any friends or family to advocate for them.
5. Practitioners should also be reminded that the concept of “valid consent” does not apply more widely beyond considering Article 5 deprivation of liberty. Capacity must still be assessed under the Mental Capacity Act 2005 where decisions need to be made about a person’s care arrangements, treatment and residence. If the person lacks capacity to make these decisions (even if they can provide valid consent to a confinement), they cannot provide consent to them and the best interests process set out in the Mental Capacity Act 2005 must still be followed. 

For a detailed overview of the AGNI judgment and its implications please see our recent webinar. 

We will be providing further updates and more detailed analysis on the impact of this judgment. If you would like to sign up for these updates please register here.

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