3B: THE BOURNEWOOD GAP

The Bournewood case in the House of Lords

25. The Bournewood case arose in 1997, after HL, a 48-year-old man, was informally admitted to and detained at Bournewood Hospital in England. HL had suffered from autism and significant learning disabilities since birth, and he lacked capacity to consent or object to his medical treatment. Some years earlier, after 32 years living in Bournewood Hospital, he had been discharged to live with paid carers (or a paid foster family), with whom he lived for three years. Following an incident in which he became agitated at a day-care centre, HL was sedated and taken back to the Bournewood Hospital. No statutory authority was invoked for HL’s “informal” admission to the hospital at this time, because the practice was not to use statutory powers when a person in his position was not resisting the arrangements.⁴²⁶ HL’s former carers, who disagreed with the arrangements made for him at Bournewood Hospital, filed a claim on his behalf for a writ of habeas corpus and damages for false imprisonment.
    
    
26. In the High Court the claim was unsuccessful; however, the decision was overturned in the Court of Appeal.⁴²⁷ On further appeal, in a unanimous decision by the House of Lords, it was held that any actions taken by the hospital staff to detain HL that might otherwise have constituted an invasion of his rights, were justified on the basis of the common law doctrine of necessity.⁴²⁸ Moreover, a majority of three of the five Law Lords held that HL had not been detained at all during the later stages of his treatment at the hospital, when he had stayed on an unlocked ward and had made no attempt to leave.
    
    
27. Lord Goff, for the majority, held that any question of detention of HL during the later stages of his treatment would have arisen only if he had attempted to leave the hospital and been prevented from doing so, which he did not do. The two Law Lords in the minority considered, however, that HL had been detained, because: he was sedated both to get him to the hospital and while he was there; he would have been “sectioned” under the MHA if he had tried to leave; his carers were at first prohibited from visiting him in case he wanted to leave with them; and the hospital was not prepared to release him back into the care of his carers until they thought him ready to leave. This amounted to complete and effective control by the staff over his freedom of movement, and was therefore “detention”.

⁴²⁶ Section 131(1) of the Mental Health Act 1983 (UK) preserved the common law principle of necessity as a justification for informally receiving in hospital or mental nursing homes compliant incapacitated patients.

⁴²⁷ Bournewood above n 5; [1998] 2 WLR 764, CA. On the day of its decision HL was then “sectioned” under the Mental Health Act. He was released to his carers five weeks later and formally discharged a week after that. Meanwhile the hospital appealed to the House of Lords.

⁴²⁸ R v Bournewood Community and Mental Health NHS Trust, Ex p. L [1998] All ER 289 at 299, Lord Goff. The common law power to detain and restrain patients who lack capacity to decide where to live where detention is necessary and in their own best interests: Re F [1990] 1 AC 2 applied.

28. Despite the Law Lords’ unanimous decision that, even if HL had been detained, this would have been justified under the common law doctrine of necessity, Lord Steyn identified the existence of a lacuna in the law. This has come to be known as “the Bournewood gap”:⁴²⁹

    The common law principle of necessity is a useful concept but it contains none of the safeguards of the 1983 Act. It places effective and unqualified control in the hands of hospital psychiatrists. ... [N]either habeas corpus nor judicial review are sufficient safeguards against misjudgments and professional lapses in the case of compliant incapacitated patients. ...The result would be an indefensible gap in our mental health law. ... The suggestion that HL was free to go is a fairytale. [Emphasis added]

29. It is therefore the absence of procedural “safeguards”, rather than the absence of any criteria governing the person’s effective detention, that is the feature of the “gap”. The criteria for lawful detention were provided by the common law principle of necessity, but there was no readily accessible procedure for reviewing that detention.
    
    
30. An application was then lodged on HL’s behalf with the European Court of Human Rights (ECtHR) effectively challenging the decision of the majority of House of Lords that HL was not detained in these circumstances, and challenging the notion that his detention would be lawful – under the doctrine of necessity – when no adequate process existed for its independent review.
    

31. In HL v United Kingdom,⁴³⁰ the ECtHR then held that during the later stages of his admission to Bournewood Hospital, HL was deprived of his liberty (as the European Convention puts it), and his subsequent detention was a violation of Article 5(1) of the ECHR as it was not “in accordance with a procedure prescribed by law”.⁴³¹ The Court held that the use of the common law doctrine of necessity to detain compliant people who lacked capacity to object to their detention, rather than using the Mental Health Act 1983, was not adequate to protect people against the risk of arbitrary detention. The relevant parts of art 5(1) provide that:

    Everyone has the right to liberty and security of person. No one should be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.

32. One of “the following cases” encompassed by art 5(1), covers – and permits – “the lawful detention ... of persons of unsound mind”.⁴³² To be lawful, under the Convention, however, such detention must also be “in accordance with a procedure prescribed by law”.⁴³³ Overall, therefore, in determining if HL had been unlawfully deprived of his liberty, the ECtHR had to consider three issues: Was HL detained? Was he of unsound mind? And was his detention unlawful because it was not “in accordance with a procedure prescribed by law”?

⁴²⁹ Bournewood, above n 5 at 493 and 495.

⁴³⁰ Above n 4.

⁴³¹ European Convention on Human Rights, art 5(1).

⁴³² European Convention on Human Rights, art 5(1)(e). In Winterwerp v the Netherlands (1979) 2 EHRR 387, the ECtHR held that the need for “lawful” detention imports the need for both substantive and procedural safeguards.

⁴³³ European Convention, art 5(1).

33. The ECtHR found that HL was detained because the healthcare professionals treating and managing him “exercised complete and effective control over his care and movements”.⁴³⁴ In effect, they agreed on this matter with the minority judges in the House of Lords. They said HL “was under continuous supervision and control and was not free to leave”. The Court accepted, however, that HL was “of unsound mind”. His detention could therefore be authorised by law.
    
    
34. So the remaining question was whether his detention was lawful. The ECtHR emphasised that the essential objective of art 5(1) was “to prevent individuals being deprived of their liberty in an arbitrary fashion”.⁴³⁵ This required the “existence in domestic law of adequate legal protections” and “fair and proper procedures”.⁴³⁶ English law did not provide this and so HL’s detention was unlawful – in effect, because English law provided insufficient procedural safeguards against arbitrary detention of a person in his situation.⁴³⁷
    
    
35. The ECtHR also held that there had been a breach of HL’s art 5(4) right to a speedy review of the lawfulness of his detention. Article 5(4) provides that: Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
    
    
36. The requirements of art 5(4) were not satisfied merely by the availability of habeas corpus or judicial review proceedings. They would have to be triggered by some person on HL’s behalf, and were reactive and not readily accessible.⁴³⁸

37. This decision of the ECtHR in HL v United Kingdom was highly significant in 2004 and remains so.⁴³⁹ Around the same time, the UK Parliament was poised to enact the MCA, which would address a wide range of legal arrangements for people who lacked capacity. The ECtHR’s decision in HL v United Kingdom did not prevent the passage of this legislation but, as originally passed in 2005, the MCA contained no provisions to close the “Bournewood gap”. The HL decision of the ECtHR meant, however, that, in the absence of adequate legal provisions, there was now a large group of people in England who were being deprived of their liberty contrary to art 5(1) of the European Convention.⁴⁴⁰
    
    
38. The UK Government was therefore forced to respond. It previously had no “Plan B” as it was confident of winning the case in the ECtHR and that the Court would find there had been no deprivation of liberty.⁴⁴¹ The ECtHR’s conclusion, that detention under the common law principle of necessity failed to meet the requirements of art 5(1) due to the absence of adequate review process, therefore required the Government to make fairly radical reforms to the law, for which it was unprepared.⁴⁴²

39. In its original form, the MCA gave all kinds of carers a general authority to act in the best interests of an incapacitated person, but that authority did not extend to depriving a person of their liberty.⁴⁴³ The response of the UK Government to the HL decision was to enact a 2007 amendment to the MCA, combined with a supplementary Code of Practice that came into force in April 2009.⁴⁴⁴ These reforms introduced the Deprivation of Liberty Safeguards, otherwise known as DoLS, to remedy the breaches of the European Convention.⁴⁴⁵

⁴³⁴ HL v United Kingdom, above n 4 at 799.

⁴³⁵ Ibid.

⁴³⁶ Ibid.

⁴³⁷ The ECtHR emphasised the lack of fixed rules for the admission and detention of compliant people and the strong contrast with the extensive network of safeguards for involuntary patients under the Mental Health Act 1983 (UK), HL v United Kingdom, above n 4 at 770.

⁴³⁸ HL v United Kingdom above n 4 at 804.

⁴³⁹ As early as 1985 the Mental Health Act Commission in England recognised this problem and asked for its remit to be extended to what would also be called “de facto detained patients”, G Richardson “R v Bournewood Community and Mental Health Trust, ex parte L [1999]: Bournewood 15 Years On” in J Herring and J Wall Landmark Cases in Medical Law (Hart Publishing, Oxford, 2015) at 129.

⁴⁴⁰ In a submission to the House of Lords, the Mental Health Act Commission estimated there were at that time, 48,000 “informal“ admissions to hospital each year of people who lacked capacity and had restriction on their liberty. They also estimated that in anyone day there were 22,000 informal patients who lacked capacity compared to 13,000 patient detained under the MHA. Richardson, above n 439 at 130-131.

⁴⁴¹ Richardson, above n 439 at 135.

⁴⁴² Had the non-compliance been restricted to art 5(4), the introduction of an adequate mechanism for review might have been sufficient, but the decision found the entire process of admission to be unlawful. Richardson, above n 439 at 134.

⁴⁴³ Under the MCA, the common law doctrine of necessity was codified under s 5 and authority for the use of restraint in s 6.

⁴⁴⁴ Mental Capacity Act 2005: Code of Practice, above n 164.

⁴⁴⁵ Sections 5 and 6 of the MCA were insufficient as they provided a defence to battery rather than prescribed a procedure and therefore did not meet the requirements of Article 5(1)(e) of the Act. Section 4A of the MCA prohibits the deprivation of liberty of a person under the Act other than where the court has made an order under s 16(2)(a); where it is authorised for a life sustaining or emergency treatment: s 4B; or where the deprivation is authorised under the procedure set out in Schedules A1 and 1A, otherwise known as DoLS.

40. The DoLS seek to ensure the identification and better protection of people who lack capacity and are, or may be, deprived of their liberty in a hospital or care home. They require the decision to deprive the person of liberty to be externally reviewed and authorised, even if the person is not actively seeking to leave their care arrangements.⁴⁴⁶ They apply on the whole to older people and people with disabilities who lack capacity. They require a hospital or care home⁴⁴⁷ to apply to the local authority⁴⁴⁸ for express authorisation of a deprivation of liberty.⁴⁴⁹ If a person’s right to liberty needs to be infringed in other settings, authorisation must be sought from the COP.
    
    
41. Once a potential deprivation of liberty is identified, health and care professionals are required to conduct no less than six assessments, involving a minimum of two assessors (including a best interests assessor and a mental health assessor), to see if each of the six “qualifying requirements” under the DoLS regime are met.⁴⁵⁰ In very broad terms, these assessors must ascertain if a person lacks capacity to make decisions about their accommodation and whether it is in their best interests to be deprived of their liberty.⁴⁵¹
    
    
42. When, following those procedures, a standard⁴⁵² (or urgent)⁴⁵³ authorisation is then issued by a local authority, the decision can still be challenged through an administrative review procedure or in the COP.

⁴⁴⁶ The DoLS fall into two categories - those that operate during the process for the issue of authorisation, and those that apply once an authorisation is in place.

⁴⁴⁷ The managing authority of hospitals and care homes is usually the NHS body responsible for the running of the hospital in which the relevant person is, or is to be, a resident.

⁴⁴⁸ The supervisory body of hospitals and care homes is a Primary Care trust, or a local authority.

⁴⁴⁹ There is a duty on the managing authority of the hospital and care home to apply for a standard authorisation from its supervisory body to detain the person. Mental Capacity Act 2005, c 9 Sch A1 [13] – [20]. The duty also applies if a standard authorisation is in force and there is to be a change in the place of detention: at [25].

⁴⁵⁰ The six qualifying requirements are: age (18 or older), mental health (mental disorder under MHA), mental capacity, (person lacks capacity) best interests (assessment includes needs and care plan, views of managing authority and interested persons), eligibility (potential status under the MHA) and no refusal: Mental Capacity Act 2005, c 9 Sch A1 [13] – [20].

⁴⁵¹ The standard by which a person’s best interests is to be assessed is set out in s4 of the MCA. See Chapter 5 Best Interests – a standard for decision-making.

⁴⁵² A standard authorisation required if it appears likely that there will be a deprivation of liberty within the next 28 days.

⁴⁵³ An urgent authorisation is used where deprivation of liberty is for a maximum of 14 days.

43. Subsequently, in March 2014, the UK Supreme Court delivered its judgment in two cases known as Cheshire West.⁴⁵⁴ There were two appeals: one called P v Cheshire West and Cheshire Council, the other P and Q v Surrey County Council, though the composite decision is usually referred to as Cheshire West. This decision gave an expanded interpretation to the concept of deprivation of liberty under the MCA, so that it covered many more people in care homes and hospitals, as well as in community settings such as foster care placements, than had previously been understood. The legal test the Court applied – for when safeguards are needed – is referred to as the “acid test”.⁴⁵⁵ This test is met when an individual is under the continuous supervision and control of those caring for them and is not free to leave. In these circumstances they are deprived of their liberty in terms of art 5(1) of the ECHR.
    
    
44. The Surrey arm of the appeal concerned P and Q (otherwise known as MIG and MEG). They are sisters with learning disabilities. MIG was placed with a foster mother to whom she was devoted. She never attempted to leave the foster home by herself but would have been restrained from doing so had she tried. MEG lived in a residential home for learning disabled adolescents with complex needs.
    
    
45. The Cheshire arm of the appeal concerned P who has cerebral palsy and Down syndrome and requires 24-hour care. Until P was 37 years old he had lived with his mother, but when her health deteriorated, the local authority obtained orders from the COP that it was in his best interests to live in accommodation arranged by it. They placed him in a situation of one- to-one support that enables him to leave the house where he lives with other residents, but forcible intervention is sometimes required when he exhibits challenging behaviour.
    
    
46. In a decision by the majority, the Supreme Court held that all three of these people – MIG, MEG and P – were deprived of their liberty, in their respective settings.⁴⁵⁶ Their circumstances met the “acid test”. The fact that the living arrangements were comfortable and made their lives enjoyable made no difference – “a gilded cage is still a cage”.⁴⁵⁷
    
    
47. Speaking extra-judicially, in a speech in October 2014, Lady Hale summarised the judgment of the Supreme Court:⁴⁵⁸

    We all held that the man had been deprived of his liberty, but three members of the Court held that the sisters had not been deprived of their liberty, while the majority held that they had. The acid test was whether they were under the complete control and supervision of the staff and not free to leave. Their situation had to be compared, not with the situation of someone with their disabilities, but with the situation of an ordinary, normal person of their age. This is because the right to liberty is the same for everyone. The whole point about human rights is their universal quality, based as they are upon the ringing declaration in Article 1 of the Universal Declaration of Human Rights that ‘all human beings are born free and equal in dignity and rights’.

⁴⁵⁴ Above n 7.

⁴⁵⁵ In Cheshire West, Lady Hale, at [48] began her analysis by asking “[s]o is there an acid test for the deprivation of liberty in these cases?”

⁴⁵⁶ In the case of MIG and MEG, three of the Justices dissented. They considered that the degree of intrusion was relevant to the concept of deprivation of liberty, and noted that the care regimes were no more intrusive or confining than required for the protection and well-being of the persons concerned.

⁴⁵⁷ Cheshire West, above n 7 Lady Hale at [46] - [49].

⁴⁵⁸ B Hale “Psychiatry and the Law: An enduring interest for Lord Rodger” (Lord Rodger Memorial Lecture, 31 October 2014) at 24, http://www.supremecourt.uk/docs/speech-141031.pdf.

48. The effect of Cheshire West has therefore been to clarify the position of people confined within a hospital or institutional care, and also to expand the reach of art 5 of the ECHR governing “deprivations of liberty” to cover living arrangements in a domestic setting, such as living in a foster home (provided the state has some significant involvement in the arrangements for the person’s care). In these situations compliance or a lack of objection by the person concerned is irrelevant to the application of the acid test.
    
    
49. The concept of deprivation of liberty also applies to 16 and 17 year olds, irrespective of their capacity to consent to their treatment or their living arrangements. Parental consent therefore cannot authorise the confinement of a child who has attained the age of 16, even if the confinement is “purely a private affair”, as such consent falls outside the scope of parental responsibility.⁴⁵⁹ Such “private affairs” are considered the responsibility of the State because it must ensure that all mentally disabled people, including young persons, have the benefit of safeguards and reviews, to ensure their living arrangements are in their best interests.

50. As a result of the 2014 House of Lords report and the Supreme Court judgment in Cheshire West, the operation and adequacy of this DoLS regime is subject to further review by the Law Commission of England and Wales (Law Commission). ⁴⁶⁰ Among several criticisms outlined by the Law Commission is the “disconnect” that exists between the DoLS, which are regarded as having a “strong flavour” of mental health legislation, and the wider provisions of the mental capacity legislation, which are based on principles of autonomy and empowerment.⁴⁶¹ The DoLS are also complex and have a narrow focus on compliance with art 5 of the ECHR. Increasingly, there is greater recognition of the need to balance this right with art 8 of the ECHR, and the right to respect private and family life. Article 5 of the ECHR is said to distract attention from the underlying issue of where it is best for the person to live, which is described by Mr Justice Jackson in the COP as the “nub of the matter”.⁴⁶²
    
    
51. In Cheshire West, Lord Neuberger observed that some people may be surprised to learn that those living in a domestic setting could complain of deprivation of liberty under art 5.⁴⁶³ Nevertheless, the Law Commission has suggested that the right to personal liberty and art 5 safeguards are too important to be determined solely by reference to the home-like quality (or otherwise) of the setting.
    
    
52. Following extensive public consultation, the Law Commission has issued an interim statement indicating that they will be recommending a more “straightforward, streamlined and flexible” scheme for authorising a deprivation of liberty in any setting, which will not seek to go as widely as initially proposed under the “protective care” scheme.⁴⁶⁴ The responsibility for establishing the case for a deprivation of liberty will be shifted to the commissioning body (such as the NHS or local authority) that is arranging the relevant care and treatment, and away from the care provider. In an effort to have a proportionate and affordable response to the vast numbers of people now considered to be deprived of their liberty following Cheshire West, some people will receive independent oversight of their deprivation of liberty by an official – referred to as an “Approved Mental Capacity Professional” – whose role would be to agree or not agree to the proposed deprivation of liberty. The simplified proposal continues to recommend comprehensive rights to advocacy as a feature of the replacement scheme, with right of access to challenge restrictive treatment and care decisions in either a specialist tribunal or the COP.
    
    
53. The ongoing development of the DoLS regime under the MCA and the associated case law has therefore helped clarified two aspects of the law: firstly, how to identify a “deprivation of liberty”, and, secondly, the positive obligations on the State to take preventative measures to avoid deprivations of liberty and provide an accessible review process.

⁴⁵⁹ Birmingham City Council v D [2016] EWCOP 8 Keehan J at [134]. D, aged 16 and who has Asperger syndrome, lacked capacity to consent to his residence and care arrangements where he lived on the hospital grounds and attended school in a locked unit. This case is the partner of a similar judgment, where the same child was 15 at the time and different rules apply to children under 16 years – referred to as Gillick competence: Trust A v X and a Local Authority [2015] EWHC 922(Fam).

⁴⁶⁰ See Chapter 1C Overview of ongoing law reform of the MCA and the DoLS regime. The Law Commission’s project was commissioned by the Department of Health. Its consultation paper was issued in July 2015. The final report and draft legislation will be published before the end of 2016.

⁴⁶¹ Law Commission, above n 199 at 11. The House of Lords Report also emphasised that the DoLS did not have the same ethos of the MCA.

⁴⁶² London Borough of Hillingdon v Neary [2011] EWHC 1377 (COP), [2011] 4 All ER 584 at [151] to [152]. A young man with autism and severe learning disability was in respite care but subsequently prevented from returning home to live with his father and kept in a facility for nearly a year. The COP held that he was unlawfully deprived of his liberty and there was a subsequent damages award.

⁴⁶³ Cheshire West, above n 7 at [71].

⁴⁶⁴ Law Commission, Mental Capacity and Deprivation of Liberty, Interim Statement 25 May 2016 at 8. www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty. Initially the Law Commission proposed a “protective care” scheme with a separate scheme of safeguards for those accommodated in hospital settings and palliative care as well as those people deprived of liberty in family homes or other domestic settings. The Law Commission is also of the view that there should not be parallel legal regimes for detaining people for mental health assessment and treatment in psychiatric and other hospitals. The scheme will therefore not be used to authorise deprivation of liberty in such cases. No additional mechanism will be inserted into the Mental Health Act to cater for compliant incapacitated patients.

54. Deprivation of liberty is a human rights concept, and the term used to describe detention of a person in art 5(1) of the European Convention on Human Right (ECHR).⁴⁶⁵ It is understood, in European human rights jurisprudence, as having three elements, all of which need to be satisfied before a particular set of circumstances amount to a deprivation of liberty:⁴⁶⁶

1. the objective component of confinement to a particular restricted place for a not negligible period of time;
2. the subjective component of lack of valid consent (i.e. that the person does not consent or cannot freely give consent, if they do not have the capacity to do so) to that confinement; and,
3. the attribution of responsibility to the State.

55. In most of the key ECtHR cases applying the concept to the positon of persons of “unsound mind”, it is common ground that consent is absent and the State has responsibility. Attention has been focused on the objective element, the nature of the confinement.⁴⁶⁷ In a prescient comment in her mental health law textbook, prior to the Cheshire West decision of the UK Supreme Court, Lady Hale observed: ⁴⁶⁸

    Deprivations of liberty are not always easy to spot. Liberty means the physical liberty of the person, not simply the freedom to live one’s life as one chooses. Deprivation is more than mere restriction, but it can cover more than being locked up in a prison cell.... The starting point has to be the actual situation of the person concerned and account must be taken of a whole range of factors: such as the type, duration, effects, the manner of implementation of the measure in question. (Guzzardi v Italy [1980] 3 EHRR 33, para 93) [Emphasis added]

56. Thus a distinction is made between restraint (which, in England, may be permitted so long as it is reasonable and proportionate under ss 5 and 6 of the MCA), and deprivation of liberty, which will be arbitrary if not properly justified under art 5 of the European Convention. In HL v United Kingdom, the European Court of Human Rights held that: ⁴⁶⁹

    A deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance.

57. In HL v United Kingdom, a key factor was that the healthcare professionals treating and managing HL exercised complete and effective control over his care and movements.
    
    
58. When considering the justification for intervention available to health professionals under sections 5 and 6 of the MCA, the Law Society Guidance suggests such interventions will lie along the following continuum:⁴⁷⁰

1. “Routine” decisions or interventions in an individual’s life to provide them with care and treatment. These will be taken on the basis of a reasonable belief that the individual lacks capacity to take the decision and that the professional is acting in the individual’s best interests: these can be carried out safe in the knowledge that the professional is protected from liability under s 5 MCA 2005;
2. Interventions that constitute “restraint”. Restraint does not merely mean the use of force, but can include the threat of the use of force, or restriction of the individual’s liberty, whether or not they resist.⁴⁷¹ By operation of s 6 MCA, a professional restraining an individual will be protected from liability provided the restraint is proportionate to the risk of and likelihood of harm and is only used where the professional reasonably believes it to be necessary to prevent harm to the person;
3. Interventions that go beyond “mere” restraint to a deprivation of liberty. The professional at that point cannot rely upon the provisions of ss 5 and 6 MCA, but authority will be required in the form of an authorisation.

59. In assessing the objective element of deprivation of liberty, a distinction can be made between the “neutral” question of whether a person is deprived of their liberty and the “evaluative” question of whether those arrangements are in their best interests.⁴⁷² Under the English DoLS regime, some commentators have queried this distinction, as it is difficult to distinguish between the two when there is a need to protect people against poor standards of care.⁴⁷³ In this respect, the English legislative regime is not directly comparable to New Zealand law. ⁴⁷⁴ Here there is arguably a stronger patient protection regime under the Health and Disability Commissioner Act 1994 and the accompanying HDC Code. That said, the Commissioner only has retrospective, not prospective, powers to act on complaints, and therefore is not in a position to assess whether a person is deprived of their liberty and there is no statutory guidance (or advocate available to assist) on how a person’s best interests is to be assessed in these circumstances.⁴⁷⁵
    
    
60. Focusing on the standard of care provided to people who lack capacity in this context begs the essential question of whether a person is deprived of their liberty. Part of the reasoning in HL v United Kingdom concerned the need to independently determine the need for a person’s detention in advance, which is why the Court rejected the availability of judicial review or habeas corpus as inadequate remedies.⁴⁷⁶

⁴⁶⁵ European Convention on Human Rights (entered into force 21 September 1971, as amended by Protocol No. 14 entered into 1 June 2010).

⁴⁶⁶ Cheshire West, above n 7 at 37.

⁴⁶⁷ Law Commission Report above n 199 at 3.

⁴⁶⁸ Hale, above n 194 at 16.

⁴⁶⁹ HL v United Kingdom, above n 4 at 791.

⁴⁷⁰ Law Society, above n 415 at 11 [2.4].

⁴⁷¹ Mental Capacity Act 2005, s 6(4).

⁴⁷² Law Society, above n 415 at 11.

⁴⁷³ Allen, above n 202. Allen points out that the DoLS did nothing to prevent the abuse of people with disabilities at Winterbourne View. See Winterbourne View: A Serious Case Review - Self Safe Guarding Adults, (N Flynn) Gloustershire, 2012.

⁴⁷⁴ In England and Wales, the Care Quality Commission is now the independent regulator of health and social care, http://www.cqc.org.uk/.

⁴⁷⁵ See Chapter 4: Best interests- a standard for decision-making.

⁴⁷⁶ Gledhill, above n 403 at 130. As Gledhill points out, the Government Committee’s response on the draft Mental Health Bill in 2004 and the suggestion that DoLS authorisations would be given after people had been detained, “somewhat misses the point”.

61. The Strasbourg case law establishes a positive obligation on the State to protect all its citizens against interferences with their liberty, whether by State agents or by private individuals. In legal terms, the State is responsible for an objective deprivation of liberty to which the individual in question subjectively cannot consent.⁴⁷⁷ Article 5(1)(e) of the European Convention requires that formal authority is provided to render that detention lawful. The failures of public bodies to ensure that there is proper consideration, in advance of the decision being made, of the necessity of removing individuals from their home and placing them in institutional care in their best interests, have been evident in some high-profile cases where damages were awarded for the unauthorised deprivation of liberty.⁴⁷⁸
    
    
62. The positive obligation of the State to take measures “providing effective protection” extends to “private” deprivations of liberty (by an individual or body), even where the State has had no part in making the arrangements.⁴⁷⁹ Applying these principles, in A Local Authority v A⁴⁸⁰ it was held that where the State (in this case a local authority) “knows or ought to know” that a person is subject to restrictions imposed by a private individual that arguably amount to deprivation of liberty, then the State’s positive obligations under art 5 would be triggered. These obligations include the duty to investigate, in order to determine whether there is in fact a deprivation of liberty. If the State is satisfied there is no deprivation of liberty, it will have discharged its immediate obligations. However, its positive obligations in certain circumstances require ongoing monitoring of the situation.⁴⁸¹
    
    
63. Thus, after Lord Steyn identified the Bournewood gap, the decision of the ECtHR in HL v United Kingdom has been a catalyst for change in English law, leading to amendments to the MCA and development of the DoLS. In addition, the UK Supreme Court decision in Cheshire West has expanded the scope of the circumstances to which the procedural protections, provided by the DoLS, must apply. The European human rights jurisprudence also confirms that States must proactively ensure there are legal safeguards in place, supported by a speedy review process, to ensure that individuals who lack capacity are not arbitrarily detained.

⁴⁷⁷ Storck v Germany (2006) 43 EHRR 6 [93] sets out the principle that the State may be accountable even for private deprivations of liberty. In this case, the state became involved when the applicant was brought back to a private psychiatric hospital after she escaped. In addition, the national court must apply the provisions of national law in a manner compatible with the rights protected by the Convention. This case was applied in Cheshire West.

⁴⁷⁸ Cases where the COP has awarded damages for a deprivation of liberty include: Hillingdon v Neary, above n 462, where Mr Neary was awarded £35,000 plus costs; A Local Authority v Mr and Mrs D [2013] EWCOP B34, damages of £27,500 plus costs; and Essex County Council v RF [2015] EWCOP 1, where the authority was ordered to pay £60,000 for a substantive breach whereby RF would not have been detained if the authority had acted lawfully.

⁴⁷⁹ Stanev v Bulgaria (2012) 55 HER 22 at [120]; Re A and Re C [2010] EWHC 978 (Fam), Munby J, at [95].

⁴⁸⁰ A Local Authority v A [2010] EWHC 978 (FAM), Munby J.

⁴⁸¹ In Staffordshire County Council v SRK & Ors [2016] EWCOP 27, Charles J, when applying the decision in Cheshire West, had to consider when the State’s positive obligations under art 5 of the ECHR are engaged in the context of arrangements made by a deputy in administering a personal injury compensation payment. There was a private deprivation of liberty (as the arrangements were not made by the local authority) and there was a need to ensure that there were welfare orders and an ability to review the arrangements in place.