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A Gilded Cage is Still a Cage

About The Author

Jade Rigby (Writer)

Jade is a third year Law student at Newcastle University. She is currently completely an Erasmus year abroad at Universitat Pompeu Fabra in Barcelona, Spain, and will return to Newcastle in 2015. Jade is predominantly interested in commercial law, but also writes on criminal and private law topics.

According to the English Federation of Disability Sport, there were 9.4 million disabled people in England alone in 2011, accounting for 18 percent of the population. A wide variety of disabilities are recognised in the UK, and many of these are judged along a spectrum of severity. For example, the National Autistic Society recognises a 'family of autism spectrum disorders', including 'Asperger syndrome (currently distinguished from autism by absence of significant language delay, and general intellectual skills in the normal range), pervasive developmental disorder not otherwise specified (PDD-NOS), and childhood disintegrative disorder'. This wide understanding of disabilities and disorders is a relatively recent development in the medical sphere and, as such, the law has had to play "catch-up" to ensure that it protects the rights and freedoms of vulnerable people. Hence, a recent development from the Supreme Court following two cases, P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and another, and P and Q (by their litigation friend, the Official Solicitor) v Surrey County Council, has taken steps to ensure the fundamental right to liberty for vulnerable persons because, in the words of Lady Hale, '[a] gilded cage is still a cage'.

The significance of Lady Hale’s reference to a “gilded cage” highlights the central theme of the judgment. This phrase depicts the idea that, no matter what comforts are supplied for the benefit of vulnerable persons, carers who prevent those individuals from exercising their right to liberty are effectively holding them in a “gilded cage”. For Lady Hale, at paragraphs 49-50, several factors that may affect whether or not a vulnerable person has been deprived of their liberty:

The answer, as it seems to me, lies in those features which have consistently been regarded as “key”in the jurisprudence... that the person concerned “was under continuous supervision and control and was not free to leave”… we should indicate the test and those factors which are not relevant… the person’s compliance or lack of objection is not relevant; the relative normality of the placement (whatever the comparison made) is not relevant; and the reason or purpose behind a particular placement is also not relevant.

The Current Law

According to the NHS, the Mental Capacity Act 2005 is 'designed to protect people who cannot make decisions for themselves or lack the mental capacity to do so. This could be due to a mental health condition, a severe learning disability, a brain injury, a stroke or unconsciousness due to an anaesthetic or sudden accident'.

The Mental Capacity Act 2005 was later amended by the Mental Health Act 2007, which introduced ‘Deprivation of Liberty Safeguards’, (DOLs). These were designed to protect extremely vulnerable persons from being unjustifiably deprived of their right to liberty. The changes were made following the decision in R v Bournewood Community and Mental Heath NHS Trust, which highlighted an indefensible ‘gap’ in the law.

Critically, the law operated in practice to leave incapacitated patients who simply acquiesced to their deprivation of liberty without equal protection to those who were formally detained under the Mental Health Act. The case went to the European Court of Human Rights (HL v the UK), where the Court held that the distinction made in the House of Lords between actual and potential restraint, i.e. the vulnerable person would only be restrained if he attempted to leave, was not ‘of central importance under the Convention’. Additionally, it was found that the common law doctrine of necessity (operating to excuse potential restraint) was not sufficient to protect those patients who are incapacitated but nonetheless compliant. A consultation following this decision concluded that our law might not be compliant with the European Convention on Human Rights (ECHR) in this respect.

Indeed, in R v Bournewood, Lord Steyn stated that the courts must be increasingly wary of allowing 'this complex and sensitive area to proceed on the paternalistic basis that the doctor is always right”. To proceed on this basis would result in “an indefensible gap in our mental health law'.

 The DOLs, therefore, were introduced in April 2009 to remedy any such "gaps" in the law. The DOLs do not authorise any person to deprive any other person of his liberty, instead, they stipulate that such a deprivation may be justified if:

  • It is necessary for life-sustaining treatment or for the performance of 'vital acts', in accordance with the conditions set out in the Mental Health Act 2007, section 50(4B);
  • The deprivation is giving effect to a relevant decision of the court; or
  • The deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty).

What Justifies A Deprivation of Liberty?

In P v Cheshire West and Chester Council, and P and Q v Surrey County Council, the Supreme Court considered the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty; the resulting judgment has the potential to open the floodgates in this area. The leading judgment from Lady Hale suggests that the court must consider two questions. Firstly, there is an objective test: has the vulnerable person been deprived of their liberty? Secondly, there is a normative question: is this deprivation justifiable due to the best interests of the vulnerable person in question?

For Lady Hale, at paragraphs 34-35, the critical issue at hand is that these two questions are not conjoined or confused:

People who lack the capacity to make (or implement) their own decisions about where to live may justifiably be deprived of their liberty in their own best interests. They may well be a good deal happier and better looked after if they are. But that does not mean that they have not been deprived of their liberty. We should not confuse the question of the quality of the arrangements which have been made with the question of whether these arrangements constitute a deprivation of liberty…We should not let the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty.”

The concept which underpins Lady Hale’s argument concerns the “universal character” of human rights:

The rights set out in the European Convention are to be guaranteed to “everyone” (Article 1 [ECHR]). They are premised on the inherent dignity of all human beings whatever their frailty or flaws.

Indeed, Lady Hale goes further to state, at paragraph 45, that:

In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else… Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.

Hence, it appears that the courts must be extremely cautious in the future before approving the actions of carers and care homes. Even those who feel that they are acting in the best interests of a vulnerable person may, in fact, act in a way that deprives an individual of their liberty. Liberty 'can only be curtailed with proper safeguards'.

Is This Progress?

On the one hand, this judgment has the potential to be a positive step forward for vulnerable people and those who care for them. At a fundamental level, Lady Hale’s argument that human rights are for everyone, rather than a privilege for the physically and mentally able, is logical and fair. It is also consistent with Article 12 of the UN Convention on the Rights of Persons with Disabilities (2006), which the UK has recently ratified. The Convention requires equal recognition before the law and non-discrimination of the disabled. Hence, the judgment of the Supreme Court encompasses a progressive attitude towards the care of vulnerable people; although certain measures may be taken in the best interests of such individuals, their fundamental rights cannot be infringed arbitrarily.

Relatedly, this decision may mark a new era of understanding in both a legal and social sense with regards to those who suffer from some disability or disorder. Historically, such individuals were often negatively labelled or shut away from society. Recently, however, a social model of disability has been developed. The social model of disability suggests that barriers, which restrict life choices for disabled people, are 'caused by the way society is organised, rather than by a person’s impairment or difference'. This model was also advocated in the aforementioned Convention. Arguably, this move towards a social, rather than a traditional medical model, of disability suggests that society is becoming increasingly aware that the consequences of suffering from a disability are compounded by the social reception to that disability. Hence, the recent Supreme Court judgment may have a revolutionary significance. Indeed, the progressive stance of the Supreme Court could represent the first legal steps towards equality, thus encouraging a much more progressive and accepting society.

Cause for Concern? 

On the other hand, one may argue that the judgment in P v Cheshire West and Chester Council, and P and Q v Surrey County Council has raised some significant concerns. Firstly, how can we reconcile the fact that carers may feel that they are acting in a person’s best interests, with the allegation that they are, in fact, infringing a basic human right? This issue is increasingly complex if the carer in question has a close personal relationship with the vulnerable individual. Parents, foster parents and siblings, for example, often accept their care-giving responsibilities on the basis of a sense of "family duty". Hence, there are serious social consequences stemming from the “gilded cage” argument that may, in the long term, damage the connection between vulnerable people, carers and State support systems. The case at hand, for example, concerns care provision through branches of the State, but there is nothing in the judgment which suggests that the test for the deprivation of liberty would not also be extended to cases between family members and close friends who undertake care provision for vulnerable people.

Furthermore, one serious contention to the “gilded cage”argument is that the precedent set by the Supreme Court will ‘open the floodgates’. Sir James Munby, the President of the Family Division of the High Court, is concerned that the Court of Protection, which regulates the application of the mental capacity laws, may not “be able to cope with the expected rush of cases”. This is because the Supreme Court has set an extremely stringent standard in practical terms, which suggests that “the number of people forcibly deprived of their liberty on mental health grounds had been “vastly”underestimated.”Although one may argue that “opening the floodgates" is not a legitimate reason to be wary of the recent judgment from the Supreme Court, the uncomfortable truth is that practicality is reality. If the Court of Protection cannot efficiently process an increased number of claims, in practical terms it does not make a difference whether the liberty of a vulnerable person has been infringed or not. The Court, unable to deal with a surge in cases, risks causing injustice inadvertently. Hence, “opening the floodgates” raises some 'very serious questions about the administration of justice and public administration generally'.

Conversely, when one weighs these arguments against the fundamental nature of human rights, they are unconvincing. The courts cannot remain stagnant as society adapts and changes. Critically, the courts cannot ignore the fundamental nature of the right to liberty because this would undermine basic human rights protections. The recognition of such rights provides the basis for a socially progressive society.

Ultimately, it is likely that there will be a “period of uncertainty” following the Supreme Court judgment, wherein the Court of Protection will have to reconsider the application of the mental capacity laws and the possible consequences of this decision. The burden on the Court of Protection may significantly increase, but that is not to suggest that the law must regress in relation to the care and protection of the vulnerable. 

Further Reading

Catherine Baksi, ‘Supreme Court Affirms Rights of "Gilded Cage" Detainees

Matt Evans, 'Cheshire West Case: "A Gilded Cage is Still a Cage"'

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Tagged: Courts, Family Law, Human Rights, Medical Law & Ethics, Rule of Law, Supreme Court

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