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Criticism of Government deprivation of liberty ‘definition’

Providing statutory clarification The definition, described by government as a ‘statutory clarification’, states that a deprivation of liberty has the same meaning as article 5(1) of the European Convention on Human Rights (ECHR) and, accordingly, a person is not deprived of liberty in a particular place if they are:

  1. free to leave that place permanently; not subject to continuous supervision and free to leave the place temporarily (even if subject to supervision while outside that place). The clause also states that a person is free to leave a place even if he or she is unable to do so, provided that if the person expressed a wish to leave, they would be enabled to do so. In addition, it states that a person is not deprived of liberty if the arrangements alleged to give rise to the deprivation of liberty are put in place in order to give medical treatment for a physical illness or injury, and the same (or materially the same) arrangements would be put in place for any person receiving that treatment.

Assisting practitioners Explaining the amendment, care minister Caroline Dinenage said it responded to calls for a definition of a deprivation of liberty by members of the House of Lords, in its consideration of the bill, and would provide clarity to practitioners and ensure that the LPS were applied appropriately. This was in a context in which there had been a seventeen-fold increase in DoLS cases in England from 2013-14 to 2017-18 as a result of the Supreme Court’s Cheshire West judgment which, in effect, lowered the threshold for what constituted a deprivation of liberty in law. However, Dinenage said the government proposal was a “statutory clarification”, rather than a definition, because the “evolving” nature of case law made it difficult to draft a definition that would remain sufficiently precise. The minister said the clause was drawn from case law and rooted in article 5 of the European Convention on Human Rights, which provides for the right to liberty in the UK and is the basis of deprivation of liberty law.

Going against case law However, in a sharply worded response, shadow mental health and social care minister Barbara Keeley said the government’s clause ran counter to case law judgments from the domestic courts and the European Court of Human Rights (ECtHR). She said that the definition defined a deprivation of liberty more narrowly than case law, and risked people wrongfully going without the protections of the LPS and “costly litigation” from the clash between case law and an Act of Parliament.

Interpretation of free to leave In particular, Barbara Keeley raised issues with the proposed section which states that a person is not deprived of their liberty if not subject to continuous supervision and free to leave the place where they are living temporarily, with or without supervision. She said that all of the people involved in the Cheshire West case – known as P, MIG and MEG – were able to leave the places where they lived temporarily, and they were all considered to be deprived of their liberty by the Supreme Court. In response, Dinenage said that, under the proposed section, a person could only be considered excluded from being deprived of their liberty if they were both free to leave temporarily and not under continuous supervision. Being temporarily free to leave alone would be insufficient. She added that the definition would be accompanied by “detailed statutory guidance” and case studies within the code of practice being developed to accompany the legislation, which would assist practitioners in determining whether a person should be deprived of their liberty.

Summary The proposed new deprivation of liberty clause is surrounded by confusion with politicians of both major parties arguing whether it boils down to a new definition or a clarification in the law. The aim of the proposal from the government’s perspective is to set out what a deprivation of liberty is not. What we really need is a practical and clear definition of what it is, that enable practitioners to follow the rule of law. Albert Cook BA, MA & Fellow Charted Quality Institute Managing Director Bettal Quality Consultancy

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