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Cheshire West: liberate social policy from the influence of human rights

13 May 2014 3 Comments

Cheshire West 150x150 Cheshire West: liberate social policy from the influence of human rightsBy 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 [2014] 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.

Wrong question

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.

Wrong answer

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.

Wrong approach

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.

For an extended version of this post, see New Law Journal here.

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3 Comments »

  • Rosemary Cantwell said:

    14 May 2014

    Dear Halsbury Exchange

    I am grateful for the airing of views on Mental Capacity. as I have asked specific questions as to what precisely is “mental capacity” in the House of Lords Select Committee post-legislative review on Mental Capacity Act 2005.

    The problem is that there is no one single consistent approach to precisely what “mental capacity” is, and the same person examined by three different people on the same issue could be overlaying their own perceptions of what is the “right” decision rather than assessing whether or not a person can be assisted in their “decision-making” rather than imposing their – the examiners’ – decisions on the person, P.

    This is the really problematic issue. First define the definition of “mental capacity” as it has eluded many people and has led to the SCIE claiming that something like 40% of mental capacity assessments are wrong.

    That being the case, I believe the time has come either to abolish the Mental Capacity Act 2005 altogher, or, in the alternative make it a purely civil code and one that operates solely in the open County Courts.

    These are my personal views.

    Thank you very much.

    Yours sincerely,

    Rosemary Cantwell

  • Jen said:

    Which social reformer would advocate NOT considering very carefully before depriving a person of their liberty?

    John Stuart Mill’s ‘On Liberty’, as I recall, advocates only interfering with someone’s freedom of choice if failure to do so would result in harm either to themselves or someone else – while also acknowledging a competent’s person’s right to take stupid risks.

    I also do not regard it as ‘obvious’ that only a person who understands that he is imprisoned and objects to the situation is actually deprived of his liberty. This has not been regarded as obvious since at least 1690, when John Locke formulated his ‘locked room’ example to illustrate the point.

    I regard the insinuation that we ought not to apply human rights considerations to mentally incapacitated or disabled people as frightening. Surely these most vulnerable members of society are those who most need the protection of human rights legislation? Yes, the ECHR was the result of horrific abuse during World War II. However, those abuses were perpetrated on the weaker members of society – the outsiders, the disenfranchised, the disabled. To deny the protection of human rights legislation to disabled people today, is to betray the purpose of the Convention. What are we left with then? If the only people with human rights are people who are healthy and in full possession of their wits, what does that make those who don’t fit the criteria? Non-human? Sub-human?

    Indeed, what does it make of the whole concept of ‘human rights’? If the legislation can be used to permit a woman to wear a cross necklace at work but not to prevent a disabled person from being unnecessarily deprived of their liberty – THAT makes a mockery of the concept of human rights.

    Human Rights are called ‘human rights’ because they apply to everyone who is a human being. Not just those fortunate ones among us who are in the powerful majority, or whom we approve of.

    “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…” How awful. Oversight! Shocking concept. How terrible, that care homes and hospitals should have to account for why and how they deprive people (human beings – at least, by my reckoning) of their liberty. Also, ‘adequate’. Should we not be striving for something more than ‘adequate’? The dizzy heights of ‘good’, maybe?

    “Universal third party oversight of care arrangements might be desirable if those lacking capacity were routinely deprived of adequate care.” So oversight is only required if deprivation of adequate care is ‘routine’? Well, leaving aside the debate over the inadequacy of the Deprivation of Liberty Safeguards (not a problem that has emerged in the last few weeks) is oversight only appropriate AFTER a systemic and serious problem has been discovered?

    And what do we regard as ‘adequate care’? It should be borne in mind that for the people involved in the Supreme Court case, the question was not about ‘adequate care’, but their whole lifestyle. And why should a person have to settle for ‘adequate care’ just because they are disabled? Should disabled people not have the opportunity to live their lives to the fullest extent possible? The opportunity to make their own choices with as much freedom as is compatible with safety? Why should someone have decisions made for them by someone else (even a social reformer) if it’s not necessary?

    I think Lady Hale was absolutely right. A gilded cage is still a cage. In taking care of the most vulnerable members of society, we must be careful not to skip steps in our reasoning. Before depriving someone of their liberty ‘for their own good’ we must first always examine whether it is necessary and proportionate. And we must be prepared to demonstrate that we have done so.

    Otherwise, it is far too easy for ‘for their own good’ to segue into ‘because it’s easier for me’ or ‘because it’s cheaper’ or even ‘because I don’t want to be seen with someone like that’.

    Human rights legislation was passed to protect the vulnerable, who cannot protect themselves. We cannot deny its protection to the most vulnerable members of society – those who do not even have the capacity to instruct a lawyer.

  • Graeme Harrison said:

    “‘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.”

    Anything to do with the fact that the justices of the Supreme Court are, wait for it, lawyers by trade rather than ‘social reformers’ (whatever that means)?