The correct approach for assessing DOL and the role of the Mental Health (Review) Tribunal
In the well-known case of Cheshire West and Cheshire Council v P  UKSC 19 (Cheshire West), Baroness Hale stated that there was an “acid test” for the objective assessment of whether a person was deprived of their liberty. This was that the person concerned “was under continuous supervision and control and was not free to leave”.
However the correct interpretation of this test was the subject of a dispute in the recent case of PJ v A Local Health Board and Others  UKUT 0480 (AAC). This case was an appeal to the Upper Tribunal on the basis that the Mental Health Review Tribunal for Wales had made an error of law in their approach to the acid test and that they also erred in law by concluding that the framework of a Community Treatment Order must take precedence over human rights issues. It is the former issue that is the focus of this article.
The error of law made by the MHRT for Wales was that it was wrong to consider the “free to leave” part of the acid test in isolation from the “continuous supervision and control” part of the test. Mr Justice Charles stated that “the MHRT overlooked that the fact that a person may have unescorted leave in the community does not mean that he is not deprived of his liberty if the leave is regulated and controlled, and he is not free to leave in the sense of removing himself permanently in order to live where and with whom he chooses.”
In coming to this conclusion, Mr Justice Charles relied on the principle in the case of Guzzardi v Italy (1980) 3 EHRR stating that “the starting point in assessing whether there has been a deprivation of liberty is “the concrete situation” of the person and the consideration of “a whole range of criteria such as type, duration, effects and manner of implementation of the [restrictive] measure in question.”
Therefore one must look at the situation as a whole in order to assess whether there is an objective deprivation of liberty, taking into account both the degree of supervision and control and whether or not the person is free to leave. An approach that only considers one part of the test (free to leave) without considering the other (level of supervision and control), will lead to an error of law being made. It should also be remembered that the reason or purpose of any restrictions/conditions is irrelevant as to whether there is an objective deprivation of liberty.
Once it has been established that the implementation of conditions of a care plan amount to a deprivation of liberty, Mr Justice Charles states that the Tribunal should consider whether the person has capacity to consent to such conditions and on what basis the deprivation of liberty can be made lawful.
The Tribunal should consider adjourning a hearing to make directions and decisions to enable it to determine the issue of capacity and the terms needed to protect the public and/or the patient. If the patient lacks capacity, then a DOLs application or welfare order made by the Court of Protection (depending on the type of accommodation) would be sufficient to make the deprivation of liberty lawful and the hearing can be adjourned for such an authorisation to be put in place prior to discharge.
However, in relation to capacitous patients, there are competing obiter arguments from different Upper Tribunal cases about whether a capacitous person can give valid consent to conditions amounting to a deprivation of liberty. It is Mr Justice Charles’ view that a capacitous person can give valid consent but as his comments are only obiter, this issue remains to be tested in future cases.
In my opinion I am very much inclined to agree with Mr Justice Charles on this point as I do not see why people who lack capacity should be treated more favourably than those with capacity in terms of being discharged from hospital into the community, if the capacitous person is consenting to such conditions.
I would welcome any future decision that supports capacitous patients being able to give valid consent to conditions amounting to a deprivation of liberty.
Peter Edwards Law