Given the passing of final Parliamentary hurdles by the LPS, facilitated by the abandonment of any statutory definition of deprivation of liberty, it was distinctly surreal to have spent much of this past week preparing for and then delivering training to lawyers operating a DoLS-like framework which contains, in effect, such statutory definition. That framework can be found in the Jersey Capacity and Self-Determination Law 2016 (‘CSDL’), which came into force on 1 October 2018, and contains (in Part 5), a scheme for the authorisation of ‘significant restrictions on liberty’ for those aged 16 and above with impaired decision-making capacity.
The definition of what constitutes a significant restriction on liberty was influenced by the Law Commission of England & Wales’s provisional proposals ahead of their final Mental Capacity and Deprivation of Liberty report, as well as proposals from the Scottish Law Commission. The definition is very similar to that contained in the Gibraltar Lasting Powers of Attorney and Capacity Act 2018; reading it in light of the ‘definition wars’ in England & Wales is of no little interest:
[…] (2) The measures mentioned in paragraph (1) are that –
(a) P is not allowed, unaccompanied, to leave the relevant place;
(b) P is unable to leave the relevant place unassisted, by reason of P’s physical impairment or mental disorder, and such assistance as it may be reasonably practicable to provide to P for this purpose is not provided;
(c) P’s actions are so controlled in the relevant place as to limit P’s access to part only of that place;
(d) P’s actions are controlled, whether or not in the relevant place, by the application of physical force or of restraint as defined in Article 9(2);
(e) P is subject, whether or not in the relevant place, to continuous supervision;
(f) P’s social contact, whether or not in the relevant place, with persons other than those caring for him or her in the relevant place, is restricted.
(3) A measure applicable to all residents at a relevant place (other than staff employed at the place) which –
(a) is intended to facilitate the proper management of that place; and
(b) does not excessively or unreasonably disadvantage P in particular,
shall not be regarded as a significant restriction on P’s liberty.
(4) For the purposes of paragraph (2)(b), and for the avoidance of doubt –
(a) P is not to be regarded as subject to a significant restriction on liberty where P is wholly incapable of leaving the relevant place because of physical impairment; and
(b) any limit as to the time or duration of any assistance provided to P, which does not excessively or unreasonably disadvantage P, shall not be taken to mean that assistance is not provided.
The definition is an expansive one (although with a carve-out for temporary restrictions for purpose of delivering life-saving treatment or carrying out vital acts), and arguably goes beyond Article 5 – for instance by capturing a situation where the sole relevant restriction is upon contact. Although the CSDL is silent on the matter, if the Cheshire West approach is followed, it will be irrelevant whether the person concerned is content with the arrangements if they satisfy the objective criterion of significant restriction and lack the relevant capacity to consent.
It will be interesting to see whether the States of Jersey exercise their power under Article 39(3) CSDL in due course to amend the definition by Regulations so as to narrow it. In the interim, one hopes that full benefit of it will be taken on behalf of those subject to ‘significant restrictions’ going beyond pure Article 5 ECHR territory to challenge – in particular – restrictions on contact.
The voyage into Jersey law also felt like a voyage into a parallel universe in a different way, in that their Mental Health Review Tribunal is now constituted as the route of challenge both to detentions under their Mental Health Law 2016 and to authorisations of significant restrictions under the CSDL, governed by one set of procedural rules. Many will remember the debates in England and Wales as to whether DOLS (or, in future) LPS authorisations should go to the Mental Health Tribunal/MHRT for Wales. Interested English observers will want to keep a careful eye upon how matters pan out in Jersey – including how a “fresh determination” of the relevant decision-making capacity undertaken by a three person Tribunal squares up to consideration of capacity by single judges of the Court of Protection. To this end, and for purposes both of the development of practice in Jersey and (parochially) law reform in England & Wales, it is very much to be hoped that as CSDL challenges start to make their way to the Tribunal, ways are found in which to disseminate the central features of those challenges and their determinations (Tribunal decisions not, to date, being published, and Tribunal hearings being private).
As ever, comparisons with different jurisdictions cannot solely depend upon narrow readings of individual Acts, and have to be understood (in particular) in light of the relevant professional cultures within those jurisdictions. But they always (should) serve to prompt questions and reflections on how matters are tackled in a ‘home’ jurisdiction – my trip to Jersey has definitely left me brimming with them.