The Deprivation of Liberty Safeguards were introduced in response to a European Court of Human Rights ruling that a man who lacked decision-making capacity had been unlawfully deprived of his liberty in hospital on the arbitrary decision of a doctor (HL v UK (45508/99) (2005)). To meet the requirements of the European Convention on Human Rights (1950), article 5, a deprivation of liberty can only be lawful in defined circumstances as it is authorised by a procedure set out in law. The Mental Capacity Act 2005 was amended to allow for a person to be lawfully deprived of their liberty where this is authorised by the Court of Protection under section 16 of the Act or authorised by the Deprivation of Liberty Safeguard procedures under schedule A1 of the Act in hospitals or care homes.
The Deprivation of Liberty Safeguards are an administrative procedure that authorise the deprivation of liberty of a person who lacks capacity to decide on accommodation for care and treatment. The safeguards can only be used in hospitals and care homes.
The safeguards were strongly criticised by the House of Commons Health Committee (2013), the House of Lords (2014) and the Courts (C v Blackburn and Darwen Borough Council (2011)) as being under-used and difficult to apply in practice.
Maternity units as gilded cages
A decision by the UK in Cheshire West and Chester Council v P [2014] imposed a new acid test for the determination of a deprivation of liberty in hospital where the person lacked decision-making capacity that is more inclusive and will apply in maternity units (X County Council v M and others [2014]).
The Supreme Court appreciated that midwives might be reluctant to see the benevolent maternity care and treatment they provide in the best interests of women who lack capacity as also depriving them of their liberty. Nevertheless, the Supreme Court held that midwives must not confuse the quality of maternity care and treatment with whether that care and treatment amounts to a deprivation of liberty.
This is because human rights are universal and are guaranteed to everyone, including women who lack the capacity to make decisions about maternity care. The right to liberty guaranteed by article 5 of the European Convention on Human Rights (1950) must apply equally to everyone including where they have a physical or mental disability. Lady Hale held that (Cheshire West and Chester Council v P [2014] at paragraph 46),
‘If it would be a deprivation of my liberty to be obliged to reside in a particular place, subject to constant monitoring, only allowed out with supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of liberty of a disabled person. 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.’
Acid test for identifying a deprivation of liberty
The Mental Capacity Act 2005, section 64 states that a deprivation of liberty has the same meaning as in article 5(1) of the European Convention on Human Rights. The European Court of Human Rights requires three elements be considered when identifying a deprivation of liberty (HL v UK (45508/99) (2005)):
When considering the objective element, Supreme Court in Cheshire West held that the key acid test to be applied was that the woman was under continuous supervision and control and was not free to leave. All three parts of the test must be present for the objective element to be satisfied.
Determination of whether a woman is deprived of her liberty in a maternity unit must be based on the acid test of whether she is under continuous supervision and control and not free to leave.
Continuous supervision and control
The threshold for what amounts to continuous supervision and control has been set relatively low by the Supreme Court. In the case of P, all seven Supreme Court Justices agreed that a 38-year-old man with learning disabilities, placed in a supported living to meet his need for 24-hour care, was deprived of his liberty because although the care home tried to ensure his life was as normal as possible he was, in reality, completely under the control of the care home staff. He could not go anywhere nor do anything without their permission or assistance and support (Cheshire West and Chester Council v P [2014]).
In the joined case of P&Q, the Supreme Court also held, by a majority, that two sisters were also being deprived of their liberty. The girls, aged 17 and 18 at the time, and living with moderate learning disabilities, were looked after, one in foster care, the other in a small residential unit for adolescents with complex needs. Each had occasional outbursts of challenging behaviour but attended a further education college and lead a reasonably full social life. The sisters did not express any wish to leave their accommodation but when they did go out they were accompanied by staff.
It is arguable that, particularly in the case of the sisters, the care arrangements were as normal as they could possibly be but the Supreme Court held that as it was the state that was imposing the restrictions and each was subject to continuous supervision and control and was not free to leave, they were being deprived of their liberty.
That the restrictions were imposed to ensure their care needs were met and that the sisters did not object to them was irrelevant in the view of the Supreme Court. They were entitled to the same degree of liberty as everyone else (P&Q (by their litigation friend, the Official Solicitor) v Surrey County Council [2014])
It is clear that the Supreme Court has set a low threshold for finding that a person is subject to continuous supervision and control and not free to leave.
Midwives must promote the human rights of all women
As a result of the Supreme Court judgment in Cheshire West and Chester Council v P [2014], midwives must be aware that the more inclusive acid test for determining a deprivation of liberty will apply if a woman in a maternity unit lacks capacity and is subject to continuous supervision and control and is not free to leave.
To be lawful these deprivations of liberty must be authorised by a Court or the Deprivation of Liberty Safeguards. As women who lack decision making capacity are properly considered vulnerable, the Supreme Court requires that midwives err on the side of caution and presume that maternity care and treatment amounts to a deprivation of liberty where the acid test is met.
The safeguards must be applied to women in a maternity unit under continuous supervision and control and not free to leave. This is likely to include women who lack capacity because of a learning disability and other forms of mental disorder even where they do not object to being in the maternity unit.
It will also include women who lack capacity being cared for in intensive care or high dependency units where that care amounts to continuous supervision and control and the person is not free to leave. Midwives must now ensure that such women are able to benefit from the protection given to them by the safeguards, particularly the periodic independent check on whether the arrangements for their maternity care and treatment continues to be in their best interests.
The need for such checks should be viewed positively as a means of promoting human rights.
Conclusion
The Supreme Court judgment in Cheshire West and Chester Council v P [2014] will have a significant impact on the use of the Deprivation of Liberty Safeguards in maternity units. As the ruling comes from the highest domestic court in the UK midwives must inform their practice by reference to the judgment.
The requirement to focus on the acid test of continuous supervision and control and not being free to leave when determining the objective element of a deprivation of liberty will see many more women fall within the scope of the safeguards and benefit from the protection it offers.
By emphasising the universal nature of human rights and that the same right to liberty applies to all the Supreme Court is promoting the positive, protective purpose of the much criticised deprivation of liberty safeguards.
There will be occasions where the court will have to authorise a deprivation of liberty. Guidance on when this should happen was recently given in NHS Trust and others v FG [2014] and this will be discussed next month.