By Jon Holbrook
Social policy towards those without capacity changed on 19 March 2014. It changed not as a result of a public discussion about the issue but because of a judgment given by the Supreme Court – Cheshire West  UKSC 19. The change was not preceded by a Royal Commission, Green Paper, debate in Parliament or any other engagement with the public, but after seven judges received legal submissions from 17 barristers. The change was not determined by the needs of those in care, but by the requirements of human rights laws.
Until recently the living arrangements of those without capacity, such as those with advanced dementia or severe autism, in care homes and hospitals were, broadly speaking, a matter for relatives, carers and doctors. From now on thousands of incapacitated adults being adequately cared for in care homes and hospitals will be subject to routine scrutiny by local authorities and even more care arrangements will be contested in the Court of Protection. Substantial quantities of time, money and energy will be diverted from providing care to completing forms and engaging lawyers.
The new requirement for routine scrutiny of care arrangements by local authorities represents a profound change to a system that’s been in place since the Mental Health Act 1959. That system, recommended by the Percy Commission of 1957, had, as Lord Steyn observed in 1998, the key objective of moving away from legalism in favour of informality. With Cheshire West the system has turned full circle and social policy has reverted to a formal and legalistic one. This fundamental change has been made by the Supreme Court asking the wrong question, giving the wrong answer and adopting the wrong approach.
The Cheshire West judgment begins by stating that the case was about “whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty”. This legal question arose under Art 5 of the European Convention on Human Rights (the Convention). It is a wholly different question from the one a social reformer would ask, namely: how can the living arrangements for the incapacitated be improved? Or, what can be done to help carers look after the incapacitated? Human rights laws constrained the court to ask the wrong question and to miss the issues that a social reformer would have addressed.
The Supreme Court concluded that the living arrangements made for an incapacitated person did amount to a deprivation of liberty. The three Supreme Court judges in the minority argued that “nobody using ordinary language would describe people living happily in a domestic setting as being deprived of their liberty”.
The minority view did not prevail, however, because the European Court of Human Rights (ECtHR) constrained the court to dismiss the obvious point that a person can only be deprived of his liberty if he has the capacity to understand and object to his situation. In social policy, words are given their ordinary meaning and social reformers deal with concepts that engage with reality. But to the human rights lawyer words can have an “autonomous” meaning that enable issues like “liberty”’ to be distorted so that those who are not deprived of their liberty are treated as if they are deprived of their liberty.
Lady Hale justified the Supreme Court’s decision by noting the universal nature of human rights law. “Human rights”, she claimed “are for everyone”. The human right in Cheshire West being the right of a person of “unsound mind” not to “be deprived of his liberty save in accordance with a procedure prescribed by law” under Art 5 of the Convention.
This human right was inserted into the Convention in the aftermath of the Second World War to address particular concerns at a particular stage of human history.
Universal third party oversight of care arrangements might be desirable if those lacking capacity were routinely deprived of adequate care. But this is not the case. As Lady Hale recognised, the cases before them, involving three individuals, were “a good illustration of… benevolent living arrangements”.
Social reform should be aimed at problems that actually exist. Social reform should not be dictated by a human right drafted over 60 years ago to address entirely different problems. Instead of fostering liberty, Art 5 of the Convention has been used to usher in regulation and legalism. In practice, the universal nature of human rights means that everyone is subject to greater regulation and legalism.