By Mathieu Culverhouse and Breagha Hayes, public law and human rights experts at Irwin Mitchell
In its Human Rights Act Reform: A Modern Bill Of Rights: A consultation to reform the Human Rights Act 1998, the government proposes to replace the Human Rights Act 1998 (HRA) with a ‘Bill of Rights’.
An interest in reforming the HRA is by no means a new phenomenon, with the rhetoric to revise the HRA persistent within the Conservative Party’s manifestos of 2010, 2015, 2017 and 2019.
Overall, the government’s consultation seeks to establish a human rights framework which privileges domestic law over European Court of Human Rights judgments and introduces a system whereby greater weight is afforded by courts of law to the views of Parliament. Specifically, in its endeavour to “restore common sense” to the application of human rights within the UK, the consultation critiques the case of P v Cheshire West and Chester Council  UKSC 19 (Cheshire West) - the basis for this article.
Cheshire West and the consultation
In Cheshire West, the Supreme Court was asked to decide what deprivation of liberty meant for people who lack mental capacity to make decisions regarding their care and residence.
The Supreme Court’s judgment set out what has become known as the ‘acid test’ for deprivation of liberty, namely that a person is under the complete supervision and control of those caring for them and is not free to leave the place where they live.
The judgment also confirmed that the law requires safeguards to be put in place for people who are deprived of their liberty, so that their care regime is subject to regular independent review. It is unclear to what extent a revision to the HRA would impact on the ‘acid test’ or these safeguards. However, paragraph 160 of the consultation cites dissenting judges who object to describing “people living happily in a domestic setting as being deprived of their liberty”.
While it is perhaps uncomfortable to label a person’s care arrangements as unduly restrictive where they appear to be happy and are not resisting their care, this does not necessarily mean that it would be appropriate to exempt such situations from oversight and safeguards.
The procedural safeguard contained within Article 5(4) of the European Convention on Human Rights, and confirmed in the Cheshire West judgment, require clarity and certainty, which cannot be achieved by tying them to such a vague and elusive concept as “happiness”, which carries some measure of subjectivity and could be both situational and transient.
This line of argument fails to address the practical difficulties in discerning or measuring “happiness”, particularly in individuals with complex and fluctuating presentation. As such, the consultation’s critiques are overshadowed by the need for a cogent test and safeguards for vulnerable individuals.
As Lady Hale stated on the Cheshire West judgment: “The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.”
Thus, where a person is physically restrained, sedated, institutionalised and deprived of their liberty in any capacity, the interference on their liberty is sufficiently severe to necessitate safeguarding by way of an independent check.
Significance of liberty safeguards
An estimated 300,000 people are considered to be deprived of their liberty by their care arrangements. Such individuals derive significant benefits from safeguards which can operate to make their care less restrictive and ensure that the arrangements remain in their best interests. Indeed, in her article ‘Liberty Alert’, academic Lucy Series notes that:
"For my money, the Cheshire West acid test is actually an extremely good ‘red flag’ to situations where people are highly ‘vulnerable’ to excessively restrictive care, or to interferences with other fundamental rights, such as rights to family life and relationships with others, to home (ironically), to everyday freedoms.”
Deprivation of Liberty safeguards additionally place emphasis on a vulnerable person’s wishes and feelings and can allow people deprived of their liberty, and their families, opportunities to have their views heard. The process of reviewing, and potentially challenging, care arrangements which amount to a deprivation of liberty, can afford the disabled person, and their family, a valuable opportunity to secure more appropriate care arrangements, which better meet their needs and which are the least restrictive way of doing so.
One could argue that it is not the framework arising from Cheshire West itself that is inherently problematic. Rather, it might simply be that the complex, and indeed emotionally charged, issue of when and how people who lack mental capacity can be lawfully deprived of their liberty is fraught with difficulty, and inevitably poses a major challenge.
However, the overriding problem with the consultation’s critique of Cheshire West is that while it seems to criticise the existing legal framework, it does not propose a workable alternative model for regulating or defining deprivation of liberty. This could give rise to concerns around existing protective measures for the 300,000 of those reliant on care being placed in jeopardy with little certainty as to their replacement.
Many UK citizens, for the first time, experienced being deprived of their liberty during the Covid-19 pandemic.
Covid-19 restrictions have since abated and, for most, life is returning to the status quo. However, for many disabled people restrictions on the freedoms that the rest of us take for granted are often part of their everyday lives.
Many such individuals are extremely vulnerable and are unable to lobby against arrangements which may be overly restrictive. It is for this reason that the protection afforded by Cheshire West is essential.
Despite the consultation’s framing, the judgment in Cheshire West does not seek to restrain people’s autonomy or right to private life by virtue of an overly wide construction of the term ‘deprivation of liberty’. Conversely, the regime is designed with a framework of protection in mind, and it is for this reason, that the judgment remains so important.
Find out more about Irwin Mitchell's expertise in handling deprivation of liberty and human rights issues at our dedicated protecting your rights section.
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