The Irish Bournewood?

In AC v Patricia Hickey General Solicitor and Ors & AC v Fitzpatrick and Ors [2019] IESC 73, the Irish Supreme Court has grappled (inter alia) with what deprivation of liberty means in the Irish context in relation to an elderly lady with dementia prevented from leaving hospital.   The case makes fascinating reading for those steeped in the English debates, who may read the sentence (at para 330) that “‘[d]eprivation of liberty’ is not a particularly complex concept” with something of a hollow laugh. They may also be interested to see that the Irish Supreme Court were invited by the Irish statutory authorities to distinguish Cheshire West on the basis that “it is inconsistent with and goes further than the Convention approach because it applies an “acid test” designed to avoid the need to consider the details of the factual situation” (para 115).

Giving the judgment of the court, O’Malley J declined this invitation:

333. On the assumption, for the purposes of this part of the discussion, that Mrs. C. wanted to leave and had capacity, I think it would be impossible to conclude that she was not deprived of her liberty in that she was physically prevented from acting on that wish. She was not free to leave. The President commented that the position of the hospital was clear – they would discharge her only if satisfied with the care arrangements. Accordingly, whether one applies the Dunne v Clinton analysis [case-law from Ireland], the Guzzardi/Stanev criteria or the Cheshire West “acid test”, she was not free to leave. The measures taken involved restraint, pursuant to which she was kept in the hospital for an indefinite period under the control and supervision of those caring for her.

334. The next question is whether that finding – that Mrs. C. was in fact detained – is in any way altered if it is assumed that she did not have capacity. In my view it cannot be, for the reasons identified in the ECtHR jurisprudence and by the UK Supreme Court in Cheshire West (and indeed, in some of the comments made by members of the House of Lords in HL). Firstly, I consider that the constitutional guarantee of the right to liberty protects mentally impaired persons to the same extent as everyone else – deprivation of liberty must in all cases be in accordance with law. To hold that persons cannot be found to be “detained” if they are not capable of making a valid decision to leave for themselves, or if they are not aware of or able to object to their situation, would not simply permit restrictions on their freedom of movement for their own protection. It would also have the far-reaching consequence of denying to vulnerable persons in this category the benefit of the constitutional guarantee that they will not be deprived of their liberty otherwise than in accordance with law. It is possible for a person of full capacity to be detained without necessarily being conscious of that situation, and, equally, it is possible in the case of a person with impaired capacity. Both are entitled to legal protection.

335. For the same reason, a benevolent or protective motivation or purpose for whatever measures have been taken cannot be considered to alter the legal fact of detention. I agree with the doubts expressed by Lord Nolan in HL and the analysis of Lady Hale in Cheshire West in this regard. If benevolent intentions meant that there was no deprivation of liberty, and therefore no grounds for inquiry into the legality of deprivation of liberty, there would be no legal basis upon which the courts could ask whether the measures taken were justified and were in fact in the individual’s best interests. This would, in fact, leave vulnerable people without legal protection against arbitrary or unnecessary detention. The persons or institution that takes charge of them would thereby appoint themselves as a substitute decision-maker without legal process. Neither the Convention nor the Constitution permit of this result.

Interestingly, however, O’Malley J then went on to grapple with the question of what a hospital is to do in the context of discharge where it appears that such would put the person at risk (in the instant case, it was feared, from the actions of her son). These issues, she considered, demonstrated:

344 […] an essential difference between the cases involving police detention under statutory power and the issues that may arise in the context of discharge from hospital. In the former, the issue is binary – the person has been either lawfully or unlawfully arrested and detained. Consent is generally irrelevant to the lawfulness of an arrest (as opposed to some of the examples found in the cases of voluntary attendance for questioning), and therefore the validity or effect of consent does not arise as an issue. However, in a healthcare system founded on the principles of voluntarism and the duty of care, hospitals will frequently have to deal with far more complex and nuanced situations. The problem in this case was how to reconcile those two fundamental principles.

Her conclusions, explained in detail in the paragraphs that follow, were then summarised as follows:

391. In the course of my analysis I have concluded that a hospital faced with a situation such as the one that arose in this case, giving rise to a concern for the welfare of a patient, should take the following steps.

392. The first question is whether the patient truly wants to leave, or is in reality being removed by third parties in circumstances where there is a real risk to her health and welfare. If it is a case of removal, rather than a wish to depart, the hospital’s duty of care extends to protecting her against such third parties. If she does indeed wish to go, and has capacity to make that decision, all that the hospital can do is attempt to persuade her that it is in her own interests to stay.

393. If, however, the hospital is concerned that the patient lacks capacity to make the decision, that issue must be addressed. Persuasion will not necessarily be the appropriate legal solution, since the lack of capacity implies an inability to process the information provided and to make decisions upon it. The hospital is entitled to take some brief period of time to make its assessment of capacity. It may be helpful if some person can be found who has not been involved in any dispute concerning the patient and who can act as her intermediary or advocate. If it is concluded that the patient has capacity, no further issue arises. If she lacks capacity, the hospital must bear in mind that it has no general power of detention and no general right to make itself a substitute decision-maker. It must therefore seek the assistance of the courts, if it is felt that the patient is at risk. In my view, the doctrine of necessity permits the hospital to detain the patient, in the interests of her personal safety, provided that such detention lasts no longer than is necessary to take appropriate legal steps. It is essential to bear in mind that compliance on the part of a patient who lacks capacity will not on its own amount to justification, since if the patient cannot give a valid consent then some other lawful authority is necessary if other persons are to make decisions for her.

394. From the courts’ point of view also, it must be borne in mind that a patient’s lack of capacity to make a decision is not, in itself, an answer to a complaint of unlawful deprivation of liberty. People with impaired mental abilities are protected by the same constitutional guarantee as any other person – that they will not be deprived of liberty otherwise than in accordance with law. Similarly, the fact that the measures taken by the hospital are in the best interests of the patient is a matter that goes to the justification of deprivation of liberty, and not to the question whether there is detention in fact. In determining whether a person has been unlawfully deprived of liberty, in breach of the constitutional guarantee, the court must start with the factual circumstances and ask whether the individual has in fact been deprived of liberty. In this case, that question is answered by the finding that Mrs. C. (if she wanted to leave) was physically prevented from so doing and was subjected to complete control and supervision.

395. The second part of the court’s analysis will then focus on the justification offered for the deprivation of liberty. If the hospital has acted in accordance with the process I suggest, then there will in my view have been no unlawful deprivation of liberty. It will then be for the court to determine whether the situation requires protective orders, in the best interests of the patient, which affect the right to liberty. Such orders must, of course, respect the substantive and fair procedure rights of the individual.

The judgment also contained detailed – and critical – considerations of the operation of the wardship jurisdiction in Ireland, which will (within the foreseeable future) be swept away by the Assisted Decision-Making (Capacity) Act 2015.

It is curious, one might think, that the Supreme Court placed reliance upon the doctrine of necessity as a lawful basis for deprivation of liberty in the context with which they were concerned, rather than examining what was (on the face of it) the rather more obvious question of whether the confinement to which the person in question would be subject would cross the line into being for a ‘non-negligible’ period of time. If it did not, then, at least through the prism of Article 5 ECHR, there would be no issue. It is particularly curious that the Supreme Court relied upon necessity on the basis that it had been approved by Strasbourg in HL (at para 349) as grounding a lawful deprivation of liberty, at least in the context of short-term detention. The plain reading of HL does not appear to support this, Strasbourg making clear that did not suffice to avoid arbitrariness (see para 119), making no distinction between short-term and long-term detention.

The dilemmas that are exposed in the passages set out above apply equally in England & Wales, where the legal basis for preventing a person leaving in emergency situations is, at present, questionable (see the discussion in the 39 Essex Chambers guidance note on deprivation of liberty in the hospital setting). The law will become much clearer as of 1 October 2020 with the introduction of the new s.4B Mental Capacity Act 2005, allowing for deprivation of liberty in the emergency context.

The Irish Government is still wrestling with its own legislative solution to the issue of deprivation of liberty (see the discussion of the Department of Health’s public consultation report on its legislative proposals in the 39 Essex Chambers July report). In that, they are grappling with the implications of the Convention on the Rights of Persons with Disabilities – it is striking that the Supreme Court in AC’s case makes essentially no reference to it, and none to the bar that the Committee assert exists to deprivation of liberty in the presence of mental impairment.   It would be particularly interesting to know what the Committee would consider would be the appropriate response to the dilemmas outlined in the case.

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