THE END OF CHESHIRE WEST?
As a brief synopsis, this case is a reference by the Attorney General in Northern Ireland to the UK Supreme Court and this is decision is therefore binding on us in England and Wales. The reasons behind the case being brought are that the Minister in NI wished to put into practice a revised Code in relation to DOL applications that could take into account a person’s expressed wishes and feelings to be used to all extents and purposes as their valid consent.
The Official Solicitor of England and Wales was permitted to intervene in the case due to the practical implications there may be if NI follows a different set of rules relating to DOL applications. Other intervenors included charities which were also opposed to the application on the basis that this is a vulnerable group of people and that the Cheshire West case had been decided correctly.
The Court did find that in Cheshire West, relevant to any and all DOL applications throughout NI and indeed England and Wales, the Court did err in their interpretation of Article 5 ECHR as it relates to the concept of ‘valid consent’. The court set out the following summary of their decision:
(i) The starting point in assessing whether someone has been deprived of liberty within the meaning of article 5 is the specific situation of the individual concerned, and the assessment is multifactorial, with account taken of a whole range of factors including the type, duration, effects and manner of implementation of the measure in question. This was the approach set out in Engel v The Netherlands (1979–80) 1 EHRR 647 (“Engel”) and Guzzardi v Italy (1981) 3 EHRR 333 (“Guzzardi”) and it has been consistently applied by the European court since then, and in many different contexts, including the one with which we are here concerned. The judgments of the European court show that no single factor is determinative.
(ii) In addition to the objective element of confinement in a restricted space for a significant period, an individual will only be considered to be deprived of liberty if, as an additional subjective element, they have not validly consented to the confinement in question (Storck). Valid consent is therefore a powerful factor in the assessment. It is an autonomous concept and not to be equated with the concepts of consent for the purpose of waiver of rights under the Convention or of legal capacity in domestic law. The fact that an individual lacks legal capacity to decide on their living and care arrangements does not necessarily mean that they are de facto unable to understand and consent to those arrangements in a manner that prevents those arrangements from becoming a deprivation of liberty (see Stanev, HL and the other judgments of the European court considered below). On the contrary, an individual without legal capacity under domestic law, but who is conscious of their environment and has a basic understanding of their living circumstances so that they can express their view about their situation, who manifests their acceptance of the situation they are in, should have their opinion respected when an assessment is made of whether they are deprived of liberty under article 5.
iii) Although the objective and subjective elements of deprivation of liberty are often considered sequentially by the European court in its assessment of an applicant’s specific situation, there is an overlap. The requirement to take account of the “type” and “effects and manner of implementation” of the measure in question means that the assessment of the objective element can take account of the specific context and circumstances of restrictive measures that are different from the paradigm of confinement in a cell.
(iv) The approach of the European court means that the effect of restrictions on an individual, including their compliance and the lack of objection if they are capable of objecting or giving tacit agreement, is relevant in assessing the objective element of confinement. The relative normality of the placement is also a relevant factor in this assessment. Similarly, in situations that are far from the paradigm of confinement in a cell, the purpose for which a measure has been taken is a factor to be considered.
(v) The European court has recognised that the process of assessing whether there has been a deprivation of liberty is no easy task in some contexts and may give rise to difficulties, especially in borderline or marginal cases. Equally, it may sometimes be difficult to ascertain the true feelings or preferences of vulnerable individuals who do not have mental capacity to decide on their living arrangements. The approach should be practical and realistic. Where there is serious doubt, no inference of valid consent should be drawn.
(vi) It follows from the analysis of the Strasbourg jurisprudence in section 8 below that, in setting out the acid test, the majority decision in Cheshire West departed from the longstanding multifactorial approach to determining whether a person is deprived of liberty within the meaning of article 5 and is wrong (as we explain in section 9 below).
(vii) For the reasons given in section 3 above, we have concluded that the 1966 Practice Statement should be applied and that Cheshire West should be overruled.
(viii) The Minister would not be acting incompatibly with article 5 in issuing the Revised Code and it is therefore within competence for him to proceed to issue it.
The reasons for the Court overruling Cheshire West are that while the ‘consent’ element was addressed in both first instance judgments and by the Court of Appeal, the focus in the Supreme Court case was on the objective element, not the subjective element of consent, which was simply not argued in that Court.
Para 84 sets out clearly the issue:
Deprivation of liberty under article 5 is an autonomous concept (meaning it arises under the Convention and is governed by principles laid down by the European court in its jurisprudence, rather than by national law in a Contracting State), and the subjective element in that concept and the notion of valid consent are likewise autonomous concepts. Therefore it in no way followed from the fact that the individuals did not have legal capacity in domestic law under the MCA 2005 to decide about their living arrangements that they could not give valid consent, in terms of the law under the Convention, in relation to those arrangements for the purposes of determining whether the subjective element of deprivation of liberty was made out or not.
The Court concluded that the majority decision in Cheshire West did go beyond the Strasbourg jurisprudence and departed from the long-standing multifactorial approach to determining when a person is deprived of their liberty. The Court therefore did conclude that the decision in Cheshire West in adopting the acid test was wrong.
At para 142, the Court gives two particular kinds of examples:
- At the extreme end of the spectrum of people in care, an individual may be catatonic, e.g. due to severe dementia or in the aftermath of suffering a stroke or traumatic head injury, and unable to express any view at all about what should happen to them, whether verbally or by physical manifestations of contentment or discontent. Where an individual is in such a state, they do not have control over their body such as would give the concept of deprivation of liberty under article 5(1), which refers to “the physical liberty of the person”, any sensible meaning in their case. Their “concrete” or “specific” situation is such that, by virtue of their physical condition, they do not have any possibility of exercising physical control over their body, either by means of engaging their own motor skills or by being able to request others to help them to move. Hence, they do not have any bodily, physical liberty to exercise, irrespective of the circumstances in which they are being cared for. Also, since there is no possibility of anyone contradicting their will in that regard, it cannot sensibly be said that anyone is subjecting them to treatment which constitutes a “deprivation” in relation to their physical or bodily liberty. For both reasons, the situation of such an individual is far removed from the paradigm of imprisonment in a prison cell. The concept of “deprivation of liberty” is inapt and inapplicable. In terms of the Storck criteria and the guidance in Ilias and Ahmed, para 217, there is no objective element of deprivation and also no subjective element of an appreciation of being subjected to a deprivation.
- Where an individual is temporarily unconscious (or unable to form coherent thoughts) because of their physical condition as a result of injury or disease or because they have been given drugs in the course of being provided with medical treatment, it is relevant to take into account the individual’s potential to regain consciousness by recovering or if treatment is withdrawn, judged realistically, and to make an assessment in the light of that. It is clearly appropriate to say that an individual may continue to suffer a deprivation of liberty while they are asleep, e.g. someone serving a term of imprisonment or who has been compulsorily admitted to and detained in hospital under mental health legislation. Similarly, such an individual continues to suffer a deprivation of liberty while in custody even though they are temporarily unconscious through injury or illness or as a result of medical treatment administered to them.
The relevance of this to child and adult DOL practices moving forwards is, I believe, as follows:
- There is likely not to be much, if any, difference to child DOL applications, as the giving of valid consent is almost always the focus and there is nothing specific to this case which states that the way in which we approach consent for children to be subject to DOL restrictions and applications has changed. The examples given by the Court relate to adults alone.
- In applications relating to adults, it is now likely that persons living, for example, in care homes or being cared for at home in accordance with their expressed wishes and feelings may be able to validly consent to those arrangements. The situations that follow at present where a person is happy with their arrangements but is characterised as being deprived of their liberty by the state is described as a paradoxical outcome with those people facing significant state-intrusion into their lives, which should be avoided. The Court in Cheshire West was wrong to conclude that a person’s compliance or lack of objection was never legally relevant to the question of objective confinement, however, where there is serious doubt, then consent should not be presumed or inferred. Ultimately, if an individual is able to, and does, express their wishes and preferences about their living arrangements, and is happy with them, it will ordinarily be difficult to see how they are being coerced (para 189).
The overriding consideration is that each person’s individual case will need to be considered individually, but for applications where an adult is genuinely happy with their living arrangements, and able to express those wishes and feelings, then the intrusion in their lives by the state in relation to DOL applications should no longer be required. In particular, the Court noted that there is no decision in a European court to date which held that an individual living in their own home is deprived of their liberty (this may be relevant to child applications if the child is being deprived of their liberty at home).
In conclusion, lack of legal capacity no longer equals lack of valid consent, and the acid test has never been adopted by the European Court and is wrong in principle.
