Alex Ruck Keene KC (Hon) is an experienced barrister, writer and educator. He is in practice at 39 Essex Chambers, specialising in the fields of mental capacity, mental health, and healthcare ethics.
Please note, this is a guest blog and views expressed in this blog do not necessarily reflect the views of BIHR.
The judgment of the Supreme Court in what is now universally known as AGNI is one that has provoked strong and very divided opinions. As one of those involved in the case for the Attorney General of Northern Ireland, what follows is an avowedly personal perspective.
Many of those who are most concerned about the judgment and its impact have been concerned by the way in which the judgment came about, and how the Supreme Court appeared to have made policy without consultation or the involvement of those affected.
It might, however, equally be said that Lady Hale in the judgment in Cheshire West made policy by ‘erring on the side of caution’ in the delineation of the scope of deprivation of liberty – an approach that at paragraph 47 of her judgment she identified as being expressly driven by a policy concern as to the oversight of care arrangements of those with impaired decision-making capacity.
It might be thought that it is a ‘bad thing’ for the Supreme Court to be making health and social care policy in relation to hundreds of thousands of individuals with impairments (and, not irrelevantly, directing the allocation of millions of pounds across the United Kingdom). If it is a ‘bad thing,’ then, unfortunately, it is a problem that can be laid squarely at the door of the Westminster Parliament in 2007, which ducked the task of giving a statutory definition of those requiring some form of additional oversight, and, instead, left it solely to the courts to decide who needed such oversight.
If Lady Hale erred on the side of caution, the Supreme Court in AGNI erred on the side of human rights purism. Its very clear message is that deprivation of liberty is a narrow concept, representing (at root) the overbearing of someone’s will by compulsion. This can be conceptualised in legal terms, and the judgment engages in close reading of the Strasbourg case-law in ways that will keep scholars busy for years. But, perhaps significantly, AGNI also represents an approach which is much closer to what non-lawyers think deprivation of liberty means. Non-lawyers could simply be wrong, but for my part I have no very great regret that I will no longer have to inflict (visible) cognitive dissonance on non-lawyers by explaining that if a person has complex needs, it was overwhelmingly likely that they were, and would always be, identified as deprived of their liberty, which was neither ‘good’ nor ‘bad’ but just ‘was.’ The new approach does not automatically make deprivation of liberty ‘bad,’ but it undoubtedly places a much greater burden on a person seeking to justify it to explain why the situation is truly the least restrictive way of meeting the person’s needs.
The idea of a broader approach to ‘valid consent’ – i.e. not concluding that lack of capacity means a person can have no will – is a new one. It arguably represents a considerable move towards compliance with the Convention on the Rights of Persons with Disabilities, with its emphasis on the widest possible approach to legal capacity. And it also opens the door to a much greater emphasis on seeking to identify the wishes, feelings, beliefs and values of those with cognitive impairments.
That having been said, given the way in which the Supreme Court approached the question of deprivation of liberty, I harbour some doubts as to the extent to which ‘valid consent’ will be in play in many cases. The Supreme Court (rightly) identified that the European Court of Human Rights locates the person’s views in both the objective and subjective elements of the test for deprivation of liberty. Applying the multi-factorial test that they identified (again rightly) to reflect the Strasbourg case-law, it will be an unusual case where a person is not actively objecting to their situation for there to be sufficient compulsion in play to give rise to questions of whether there is consent to that compulsion.
AGNI undoubtedly represents a reset. In that reset, I would urge two things. First, I would urge people to hold the DHSC to the promise made to the Supreme Court that there were sufficient safeguards in the broader network of the law that it was not necessary to hang everything off Article 5. Second, if they are unconvinced by that promise, I would invite people to look to Jersey and the framework for oversight of ‘significant restrictions on liberty’ contained in the legislation there. By contrast to the position in England & Wales, it represents the decision of the democratically elected legislature on that island as to who should have the benefit of such oversight, including interferences not just with Article 5 but also the right to private and family life under Article 8 ECHR. AGNI has opened the door for such an approach here.