Benevolence – How does this fit in to the Test for Liberty? Yogi Amin National Head, Public Law Department Irwin Mitchell

Definition of Benevolence: ‘…desire to do good to others’ ‘…an act of kindness’ ‘…well meaning and kindly’

What is deprivation of liberty? European Convention on Human Rights - 1953 Article 5 – Right to liberty and security 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … the lawful detention … of persons of unsound mind… 4. 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.

Mental Capacity Act 2005 Legal framework governing decision making for people who lack capacity to make decisions Not a general test – capacity is time and issue specific Therefore generally wrong to just say ‘P lacks capacity’ Better to say ‘P currently lacks capacity to make decisions about X’ Presumption of mental capacity unless proven otherwise All practical steps should be taken to help P reach their own decision before they are to be treated as incapable Any acts done for a person lacking mental capacity should be done in their “best interests”…

DOLS referred to in the MCA Code of Practice Provisions of the Code of Practice “The deprivation of a person’s liberty is a very serious matter and should not happen unless absolutely necessary, and in the best interests of the person concerned. That is why the safeguards have been created: to ensure that any decision … is made following defined processes and in consultation with specific authorities”

Test for Liberty is now: P v Cheshire West and Chester Council: P & Q v Surrey County Council Facts: P an adult with cerebral palsy and Down’s syndrome required 24 hour care to meet personal care needs. Placed in local authority community placement – bungalow shared with 2 other residents Court of Protection said this was a DoL Court of Appeal overturned CoP ruling and said not a DoL P through the Official Solicitor appealed to the Supreme Court Supreme Court judgment handed down on 19 March 2014 Provides much needed clarity on the law in relation to deprivation of liberty

To decide if a person has been deprived of their liberty, we must ask: Supreme Court held: To decide if a person has been deprived of their liberty, we must ask: Is P: a. under continuous supervision and control; and b. not free to leave?

Further, it was held: Even if a person is physically or mentally incapable of enjoying freedom, that should not take them outside of the human rights act and remove their right to such liberty. If necessary those in care facilities or foster homes may need to be deprived of their liberty but sufficient checks should be carried out to scrutinise that deprivation. We should not let the benevolent nature of living arrangements blind us as to their essential character if indeed that constitutes a deprivation of liberty. Rather than focus on the benevolent nature of a particular placement, the constraints of the matter should be reviewed. A placement may be in the persons best interests but the constraints may amount to a deprivation of liberty. Periodic independent checks should be carried out regularly of all patients lacking capacity and ask if they are deprived of their liberty – goes beyond the benevolent nature of a placement. Mentally incapacitated adults being cared for in care homes, hospitals, their own homes, supported living environments under continuous supervision and control were subjected to a deprivation of liberty. Regardless if it was the best possible arrangement for the individual. If a deprivation of liberty existed, it had to be authorised by court or by the safeguards set out in the Mental Capacity Act 2005 to ensure independent checks and assessments were carried out.

Benevolence/ |Beneficence Q’s In the context of social work and medical care In the context of restrictive arrangements Sufficient professional information to justify the paternalistic actions? What about autonomy?

…Benevolence/ |Beneficence Q’s What is our motivation? Is it an obligation? What are the limits of benevolence/beneficence? What are our benevolent duties? What interests of P are we seeking to further?

…Benevolence/ |Beneficence Q’s Do our limited resources affect the ability to deliver on our benevolent intentions?

Impact: This judgement means that many who are cared for in different types of placements may require a DOLS authorisation or an application to the court to sanction their deprivation of liberty. The cases before the court were good examples of the kind of benevolent living arrangements that many may have been found hard to characterise as a deprivation of liberty. The Court confirmed that there was no criticism of the care given by the local authorities but that many mentally incapacitated people who meet the ‘acid test’ and are therefore deprived of their liberty will now be entitled to the protection of the DOLS including regular reviews of their care to ensure it remains in their best interests.

… Impact The European Court of Human Rights has established general principles relating to the deprivation of liberty of people with mental disorders or disabilities. The general principles make it clear that it is important not to confuse the question of the benevolent justification for the care arrangements with the concept of deprivation of liberty. Human rights have a universal character and physical liberty is the same for everyone, regardless of their disabilities. Large numbers of people will now be considered to be deprived of their liberty who were not previously An act may be in a person’s best interests, but the act may still amount to a deprivation of liberty and will require authorisation.  Purpose of the authorisation is to ensure that independent reviews carried out to make sure protective care arrangements are in the person’s best interests and not overly restrictive. In summary, the benevolent arrangement can now amount to a deprivation of liberty

Contact: Yogi Amin National Head, Public Law Department Irwin Mitchell, Sheffield Yogi.amin@irwinmitchell.com 0870 1500 100