I speak as a member of the Joint Committee on Human Rights. We looked at this whole issue generally in our report in June, and we looked more specifically at the Bill in October, so I declare that interest. Article 5 of the European convention on human rights sets out the right to liberty and security. It says that no one shall be deprived of their liberty
“save…in accordance with a procedure determined by law”.
That essential safeguard applies to all those who are deprived of their liberty, not just people in the criminal justice system, and so it should. The previous system involved the deprivation of liberty safeguards, which were criticised by the House of Lords Committee on the Mental Capacity Act 2005. The Committee found that
“far from being used to protect individuals and their rights, they are sometimes used to oppress individuals, and to force upon them decisions made by others without reference to the wishes and feelings of the person concerned.”
So reform is most definitely needed.
The only guidance that the Mental Capacity Act 2005 gives to the courts is that
“references to deprivation of a person’s liberty have the same meaning as in Article 5(1) of the Human Rights Convention.”
The Supreme Court, as has been mentioned, has defined deprivation of liberty in an “acid test” that covers all those who are under “continuous supervision and control” and “not free to leave”, regardless of their condition or contentment. It was logical of the Supreme Court to do that, but it has none the less meant that hundreds of thousands of people who were not previously considered as being deprived of their liberty may now be so considered, and 125,630 people have been unlawfully deprived of their liberty between 2017 and 2018.
Just as importantly, this definition causes real anguish to many people and their families. We heard evidence from parents whose children are now considered to be deprived of liberty, despite being content and cared for in their own home by devoted family members. I shall give the House a couple of examples. Mark Neary told us that his son Stephen was
“very much king of his castle in his own place. He requires 24/7 support, which is either me or a member of the support team. It was decided last week that Stephen is being deprived of his liberty in his own home on the basis that, first, he is not free to leave, because you need support workers to go with him when he goes to the shop or goes swimming, and secondly, that he is under constant supervision.”
Graham Enderby told us that we had
“gone so overboard after this judgment it is ridiculous”.
Keeping to the current definition will mean that any system of authorisation would have to be either extraordinarily expensive or minimal. As we said in our second report on this issue,
“a scheme which applies too widely will be so light touch as to reduce protection for those who truly need it.”
For those reasons, the Committee recommended that Parliament use this opportunity to give the courts guidance about an article 5-compliant definition of liberty that will ensure that the safeguards are focused on those who need them. We noted two possible ways in which that might be tackled. The first was to focus on whether the deprivation of liberty was the result of an underlying condition, or whether it was caused by continuous supervision and control. The alternative was to revisit the whole notion of valid consent. Those who lack mental capacity cannot, by definition, give legal consent, but as we have heard, in practice it is possible in many cases to tell whether a person is content with his or her support.
We were disappointed, when the Bill was introduced, that the Government had not tackled that issue. We were also disappointed that the scheme that was initially proposed did not have sufficient safeguards for people who were going to be the subject of the new liberty protection scheme. However, I am pleased to see that the Government have listened, and that during the Bill’s passage through the House of Lords it has been amended to make it explicit that there is a duty to consult the cared-for person about their care arrangements. There were many other amendments that I do not have time to go into now. I am also pleased that the Government have now undertaken to bring forward an article 5-compliant definition of liberty, and we look forward that extremely important step.
Some concerns remain, however. We must consider whether people should be able to give advance consent to care arrangements. I understand the Government’s position is that advance consent could date from many years before care was put in place, that people may “give up” their human rights in long-stay settings, and that people could feel pressurised into making advance consent arrangements when they did not wish to do so. We understand those concerns, but they can be mitigated with sufficient safeguards to enhance the personal autonomy of cared-for persons. I also remain concerned that the right to advocacy is not robust enough. The provision of advocacy is essential for ensuring that cared-for persons can exercise their right to challenge authorisations, and article 5 guarantees everyone the right to challenge their deprivation of liberty before a court. I am pleased that amendments strengthening the right to advocacy were made in the Lords, but they may not go far enough.
This important Bill needs careful and thorough consideration, so I fully support the recommendation that Bill’s Committee stage be extended.