[0:00]Oh, magical. I love that magical. Amazing. Okay. So, over to Arianna. Thank you all so much. Um, so, the, uh, the Attorney General at this, uh, the case of the Attorney General's reference for, uh, Northern Ireland on deprivation of liberty. Um, the headlines of this is that the Cheshire West acid test on deprivation of liberty has now been set aside. People who lack capacity to decide on their residence and care arrangements are considered to be able to consent to them for the purposes of Article 5 ECHR, which means that they are not deprived of their liberty. So, these are people who under the Mental Capacity Act would be found to lack capacity are considered to be able to give consent to a deprivation of liberty. This has immediate effect. The the meaning of the deprivation of liberty is set in the Medical Capacity Act by reference to Article 5. There is no pause for implementation, there is no need for any legislative change. This is now the working definition of who is and who is not deprived of their liberty for the purposes of the Medical Capacity Act, uh, as well as other legislation including the Mental Health Act. Um, so if I can go on to the next slide. In terms of the background of this reference, uh, there was no underlying court decision. This was not an appeal. This was made as a reference by the Attorney General of Northern Ireland. The Attorney General of Northern Ireland, uh, was in the process of looking at the Northern Irish Code of Practice on Deprivation of Liberty. They were implementing a scheme which was very similar to the liberty protection safeguards, and the Northern Irish Mental Capacity Act is very closely aligned with the English and Welsh Mental Capacity Act. So, similar definitions of capacity, similar definitions of deprivation of liberty. The proposed revision to the code of practice would guide professionals to identify that people could give subjective consent to confinement through words or their conduct showing contentment with their care arrangements even if they lacked capacity to take decisions as to their residence and care. However, the Northern Irish government was not seeking to alter the Cheshire West acid test for who was objectively deprived of their liberty or not. So, it would have safeguarded people being subject to continuous supervision and control and not free to leave, but if they were considered to be consenting to this even if they didn't have capacity to do that, they would be outside the definition of the deprivation of liberty. If we could go to the next slide, please. Um, I've set out just for everyone's reference what the proposed revision was to the Northern Irish Code of Practice. This is particularly because it's important to understand, this was the document before the Supreme Court that they were looking at and what they were being asked to decide, uh, whether it was lawful or not. And what it specifically said is that a person can consent to their care arrangements if they have the capacity, but the person can also be regarded as consenting even if she or he does not have that capacity, but they are actively but they actively express positive wishes and feelings about the arrangements in place. It is not enough that P does not express objection, there must be evidence of a positive attitude to the care arrangements. For example, P could be regarded as consenting if he or she regularly says that they like where they live, or appears keen to return to their home after a trip away, and in either case, there is no evidence of resistance or objection to the arrangements in place. Next slide, please. Um, the revised code of practice went on to note how this would be implemented and what they stated was that the responsibility lies for those who are confining P to be able to explain at all times how P must be regarded as consenting. If they cannot do so, then the arrangements must be taken as a deprivation of P's liberty and safeguards of the Act must immediately be put in place. Uh, one of the things I note about this is again, this was aligned with the, uh, the Northern Irish equivalent of the Liberty Protection safeguards. If we could go to the next slide, please. And it did not apply to people who were in psychiatric detention. However, the general statements about what was or wasn't a deprivation of liberty do obviously extend beyond the Mental Capacity Act framework and do extend into the Mental Health framework as well. The Attorney General of Northern Ireland's case was that this interpretation was in keeping with European case law, uh, which did and but they said it did not align the concept of deprivation of liberty with the domestic test under mental capacity act. If we could go ahead two slides, please.
[4:11]Um, DHSC became involved in this, uh, in the reference as well. They made an intervention to argue that the Cheshire West acid test was wrong and should be set aside in favor of a Guzzardi-style test, which is a fact-specific test based on the person's concrete situation. They argued that the Supreme Court should consider the objective test as well as the subjective test in order to determine the reference and argued that it was necessary to look at both. If their intervention was not accepted, to say that the Supreme Court should look at the Cheshire West test again, DHSC supported AGNI's proposal, subject to a number of caveats, um, particularly expressing some concerns about the idea of incapacity's consent, uh, in relation to sexual decision-making. Next slide, please. There were then further interventions from the charity, uh, the charities who turned I represented alongside all of the Lewis, uh, and these were Mind, Mencap, and the National Autistic Society. And what, uh, what was argued on behalf of the charities was that the Supreme Court should take particular care in determining the reference in the absence of a clear factual matrix. It was emphasized that there was a wide variety of circumstances that applied to people who were deprived of their liberty and the court was being asked to determine this in the abstract rather than in relation to any particular case. The appropriate test was whether there was a real risk that the outcome sought by the Attorney General would breach fundamental rights, and that such a risk existed where ECHR case law supported the view that people who lack the mental capacity to consent to their particular care arrangements cannot give valid consent to them. And we further argued that the objective limb of Article 5 ECHR did not fall to be considered in the reference, but if it was to be considered, Cheshire West should be followed. The Official Solicitor also raised concerns about expanding the idea of valid consent to those lacking capacity, and supported the decision in Cheshire West again.
[5:58]Um, it was also argued as as well, and I just note this because it's relevant to some of the further points that are made in the Supreme Court's case. It was noted, um, that in European case law, that where a person who was found to lack capacity was able to give valid consent, this was typically in the context of where capacity had been determined on a global basis, such as a system of guardianship, not where there had been a finding of lack capacity in relation to being able to make the decision about the particular care arrangements. Next slide, please.
[6:30]Looking into what the Supreme Court determined in this, um, they did determine that it was necessary for them to look at both the subjective and objective tests. So, they accepted DHSC's invitation to look more broadly, uh, than the Attorney General's reference and to look at both the objective and subjective sides of it. They considered that when looking at whether a person is considered deprived of their liberty, there is an overlap between the objective and subjective elements, and it was necessary to consider both parts to determine the reference. They also determined that it was appropriate to apply the House of Lords 1966 Practice Statement and overrule Cheshire West on the basis that it was wrong, had given rise to practical difficulties and unjust costs and was impeding proper development of the law due to an anticipated divergence between Strasbourg law and domestic law which could not be corrected given that public authorities have no right of appeal to the ECHR. In reaching its determination, the Supreme Court didn't fully adopt the submissions of any of the parties, but was most strongly influenced by the positions of the Secretary of State and the Attorney General. The Supreme Court reached a unanimous decision in which it determined that in considering whether a person is deprived of their liberty, uh, that again, the Cheshire West test was wrong and that it is possible for a person to give consent even if they don't have capacity to do that. They adopted the Guzzardi test, if we could go to the next slide, please. Um, the test of Guzzardi versus Italy 1981, uh, Strasbourg case. Um, I note that Guzzardi didn't relate to people who have disabilities. The case was about whether an Italian mafiosi who was deprived of his liberty by being forced to live on a small island with a prison complex on it and was subject to monitoring, a curfew and limited access to other people, uh, where the entry to the island was controlled, was deprived of his liberty. So, it's not really a close analogy to anything that people will be looking at under the, uh, the Mental Capacity Act. The Guzzardi test was, uh, also looked at very closely in Cheshire West, and it was agreed that the test to be applied was multi-factorial, looking to the concrete situation and totality of the restrictions on the individual, including their type, duration, effects and the manner of the restrictions on the person, with no single factor being determinative.
[8:37]Next slide, please. The Supreme Court held that the paradigm case of a deprivation of liberty was being in a prison cell, but this has been extended to psychiatric detention. They focused on the idea that liberty was physical liberty. Um, I note first in relation to the prison cell, that again, this was not something that the Supreme Court specifically addressed in terms of the application of Article 51A, uh, which is about penal detention and Article 51E, which is detention of people of unsound mind, which has always been the Mental Capacity Act framework, uh, for how these matters are considered. Um, in terms of the paradigmatic example, as they say, the detention of people of unsound mind, potentially be detention in psychiatric institutions rather than a prison because it is specifically for welfare purpose rather than for penal purpose. Um, but the Supreme Court in this case focused on the idea that liberty was physical liberty and found that for those who are unable to exercise physical liberty because they are unconscious, in a minimally conscious state, or so profoundly disabled that they cannot conceptualize leaving let alone physically achieve this, they are not being prevented by a third party from doing something and are not being deprived of anything.
[9:49]The state may in some circumstances be subject to positive obligations, as the Secretary of State accepts, to take reasonable steps to prevent a deprivation of liberty by, for example, providing a wheelchair or other aid to enable the individual to leave. But that is a wholly different point. Next slide, please.
[10:07]The Supreme Court also considered that this did not give rise to discrimination, uh, which was a point considered at some length in Cheshire West, uh, in the gilded cage analogy and the idea, uh, as expressed in Cheshire West that the the possibility of liberty was the same for all all people. What the Supreme Court said in the AGNI reference was that the non-disabled person is in a fundamentally different position from persons who are unconscious, or in a minimally conscious state, or profoundly mentally and physically disabled.
[10:36]The former is capable of leaving but prevented from doing so. The latter are simply, by reason of their condition, not capable of leaving. It follows that there is no less favorable treatment of people in a materially similar position. Next slide, please.
[10:52]Looking to the objective test, um, we have set out in the summary which is attached to this events page and, uh, may have been received by some of you on our Mental Capacity Report mailing list, uh, a number of different factors. I think there's approximately 10 different factors of the that the Supreme Court considered were potentially relevant, uh, to whether or not someone was deprived of their liberty. No single factor was determinative, um, and the Supreme Court considered in this case that the Cheshire West acid test was a subset of the Guzzardi factors, but not necessarily all of them. And looking at some of those factors, if we could go to the next slide, um, this included the degree of supervision and control over the person's movements, the possibility for them to leave the restricted area, the extent of isolation, the availability of social contacts, the effect of the restrictions on the individual, the duration of the restriction, which was considered in proportionality to their purpose. Uh, and specifically the Supreme Court took some time to say that the duration, while accepting that this could be for a long or indefinite period of time for people in social care detention, uh, was looked at in reference to how proportionate it was. Uh, they looked by analogy to some cases by people who had been detained in immigration, uh, or customs settings and said that if the detention had lasted longer than it was needed to achieve its purpose, then that was potentially a deprivation of person's liberty because it was disproportionate. However, if it remained proportionate to its purpose, that would potentially be a factor weighing against a deprivation of liberty. They also looked to the relative normality of the placement, and potentially the purpose of the restriction, if the place of confinement was far removed to a prison cell. There was no specific discussion of what constitutes a non-negligible period of time, which is often featured in some post Cheshire West discussions about whether a person is or is not deprived of their liberty. Next slide, please. A key factor, and this was something the Supreme Court spent a significant, uh, amount of time in the judgment talking about, was the presence or absence of objection being a key factor as to whether a person was objectively deprived of their liberty. The, uh, they they looked at the incapacitated person's subjective attitude is so expressed, carries significant indeed, usually decisive weight according to the criteria set out in Store. And conversely, if the person manifests the view that they do not accept their situation, that opinion should always be respected and will usually lead to the conclusion that the objective circumstances indicate that they are retained and they are subject to a deprivation of liberty. Coercion was also seen as a necessary element in defining a deprivation of liberty and in looking at the challenging situations that may arise for a person, uh, who was being coerced. um, in that circumstances the that was likely to lead in their care settings if their wishes and feelings were being overwritten. The Supreme Court also noted that the presence or absence of sedative medications could be relevant when they are capable of suppressing objections. Next slide, please.
[13:45]In looking at the subjective test, the Supreme Court considered that the concept of consent for the purposes of Article 5 ECHR was an autonomous one, which was not linked to the MCA test for capacious consent, or waiver of other ECHR rights, which require free and fully informed consent by a person with legal capacity to take the decision.
[14:06]Instead, set a much lower test based on the person having some conscious awareness and having acceptance of the situation. The Supreme Court noted that the autonomous concept allowed individuals who lack mental capacity to make decisions about restrictions in residence and care, despite lacking the ability to capacity to make those decisions. Next slide, please. The Supreme Court further considered that if an individual is placed in a secure care home, has de facto understanding of their situation and does not express or manifest any objection to staying there despite having a realistic opportunity to do so, they can be taken to have given tacit consent sufficient to negative the subjective element required for a finding that there has been a deprivation of liberty. I note again we've set this out in the summary, but this is expressed in a couple of different ways throughout the judgment, um, but does keep coming back to the idea of tacit consent, acceptance. It's not necessarily a verbal statement, um, that the person is happy or able to express that. The Supreme Court also found that if a person has a basic level of awareness and consciousness of their living arrangements that is sufficient to enable them to know and communicate whether they are happy or unhappy with them, they may be treated as able to give or withhold valid consent to confinement by an expression of their wishes and feelings. Next slide, please.
[15:26]Uh, however, the Supreme Court did consider that compliance or acquiescence may carry less weight if it is accompanied by the administration of sedative medication which is capable of suppressing objections. Um, this is not necessarily categorical, but it is something that would have to be weighed in the balance. The approach taken to whether a person has given the consent should be practical and realistic, and that there is serious doubt as to whether the incapacitated person's true feelings or preferences are, no valid inference of valid consent should be drawn. Finally, the Supreme Court gave some examples of people who were or were not deprived of their liberty, particularly people who were not deprived of their liberty. And if we could go to the next slide, um, the Supreme Court went back specifically to the case of Cheshire West and found that MIG in Cheshire West was not deprived of their liberty. MIG was an individual who was living in a shared lives placement, which she did not seem to have any real interest in leaving and seemed reasonably content there. They also found that Meg in Cheshire West was not deprived of their liberty. Meg was living in a children's home run by the NHS and seemed to have behavioral efforts at some points in time, but the Supreme Court said that in the reason why they didn't think Meg was deprived of their liberty, the Supreme Court found that potentially P in Cheshire West, uh, who was living in a supported living accommodation where there were various restrictive interventions used to prevent him from eating incontinence pads, uh, and who was subject to continuous supervision and control, not free to leave, was potentially not deprived of their liberty, though they didn't reach this issue or set aside this determination. They found that people in minimally conscious states were not deprived of their liberty. They found that certain hospital inpatients who are prevented from leaving if the is this in keeping with the ordinary expectations and ordinary conduct of life would not be deprived of their liberty. Giving an example of this, they state that in ordinary circumstances, an individual in hospital to receive treatment and who for their own protection would be prevented from leaving while sick, confused and unable to think because of medication, but not your guarded, has suffered a deprivation of liberty within the meaning of Article 5. Ordinary expectations and the ordinary conduct of life played significant role in the assessment of whether there is a deprivation of liberty. The presumption is that a person who is unconscious and kept in care to have medical treatment administered does not suffer a deprivation of liberty, unless there is evidence that they are in there is in fact a detention or an established pattern of behavior to show that they clearly do or would object to being care for in this way.
[17:53]Uh, final slide, uh, these are more examples of people who are not deprived of their liberty. A person who is experiencing catatonia, uh, due to severe dementia or in the aftermath of suffering a stroke or traumatic head injury, uh, I note this was a a point that came up in the hearing. The idea of catatonic dementia, if I can say there's some lack of clarity in terms of what exactly what is being talked about in relation to that, uh, but the Supreme Court described this as a person who is unable to express any view at all about what should happen to them, whether verbally or by physical manifestations of contentment or discontent cannot be derived their liberty as they lack control over their body. Uh, they also found that people who are so profoundly disabled that they cannot conceptualize leaving let alone physically achieve this, would not be deprived of their liberty by a third party from doing something and are not being deprived of anything. And finally the Supreme Court found that such individuals do not have any bodily, physical liberty to exercise, irrespective of the circumstances in which they are being cared for. Also, since there is no possibility of anyone contradicting their will in that regard, it cannot sensibly be said that anyone is subjecting them to treatment which constitutes a deprivation in relation to their physical or bodily liberty. Um, our full summary will be, uh, it is is posted now, I believe, on the website, and we'll be having, uh, some further commentary in the Mental Capacity reports, uh, speak about the whistles to work judgment. Brilliant. Thank you, Arianna. Um, excellent attempt to traverse a very long judgment in not very many minutes. Um, so, the next thing to do is hand over to Neil, who is going to provide his immediate reflections, and I think having looked at some of the Zoom questions, um, I think some of his immediate reflections and questions are the same sorts of ones that are that everyone else has, so here he comes with some questions or answers, Neil. Thanks, Tor. Um, well, like most people, I've only had a couple of hours to try and digest the 80 odd pages. Um, I think the the first thing to emphasize is that there is no delayed implementation date. So, just like when we had Cheshire West come out, um, this case, um, has immediate effect as well. Um, and obviously, it's going to have a massive impact on not just the Deprivation of Liberty safeguards, but also the Court of Protection side of things and community, so-called deprivations of liberty, as well as, I imagine, quite a big impact in relation to the Mental Health Act. Um, and I suppose the impact for those under 18, um, is, um, to be determined, uh, given that under 18s weren't explicitly sort of considered in, in the judgment. So, I thought it might be helpful just to sort of make three key points to allow plenty of time for, for questions. Um, in terms of what is a deprivation of liberty, um, well, I suppose we are back in the realm of the sort of Guzzardi list of factors, um, plus the additional factors that this court has set out. So, not just the the nature of the restrictions, their duration, the effect they have on the person, the manner in which they're implemented, um, but looking at the concrete reality, also taking into account potentially the purpose behind the arrangements, the person's choices, the the, um, impact that those arrangements have in terms of how the restrictions are being imposed on or experienced by the person. So, it's this multi-factorial approach that that will be taken. And I think there are a few interesting bits in the judgment, by interesting, obviously, I mean legal code for controversial. Um, the the first is that at one point, they talk about how confinement must last for a significant period of time. That's in paragraph 53, 2, if anyone wants to look it up, a significant period. Um, now, obviously, the European case law doesn't say that. Um, it talks about being confined for more than a negligible period, and there's a big difference between more than negligible and significant. Now, if someone's in a a placement long term, then it's not going to make a difference, but this point could be potentially relevant when you're thinking about situations where someone is in hospital, potentially awaiting an admission under the Mental Health Act, because they may not be there for a significant period of time. So, I think that's one thing that sort of struck me as a bit odd. The second thing that I think worries me quite a bit, because there's lots of sort of additional points in the judgment that weren't really argued before the court, um, is at paragraph 164, uh, the court suggests that someone that has the authority to make best interest decisions could consent on behalf of the person. Um, it's quite difficult to see how that can be right, but that's certainly at least by implication what they're suggesting. Um, and many people have best interest authority to make decisions, and I'm not just talking about LPAs for health and welfare. Um, and then obviously, one of the the main focuses, I imagine, is going to be on the issue of valid consent. Um, how do we determine that? And paragraph 135, I think is going to take some unpicking. And obviously, there's going to be a whole wealth of, of case law, I imagine, coming forward as this judgment is being implemented, um, in practice. So, are you sufficiently aware of the circumstances in which you are maintained in your confinement, as to be able to register whether you are happy or unhappy with those circumstances and to enter protests against your treatment if you are unhappy with them. So, in essence, um, it seems we have a test of happiness, very much, um, and awareness of the confinement for consent to be validly given. And obviously, the court is limiting this very much to Article 5. It's not going to drive a coach and horses through the rest of the mental capacity act, where obviously, if you can't make the decision, you can't validly consent to the care or treatment being proposed.
[24:22]So, I think valid consent is going to require some unpacking. Um, but we are pretty good at determining people's, um, wishes and feelings. And I think there might be some helpful guidance to draw from a different context, the case of R D, which is all about when to go to the Court of Protection. We'll probably do far less now, but um, there's quite a lot of useful guidance there, R D, paragraph 86, I think it is, um, which by analogy might be quite helpful when we're trying to determine valid consent. Um, so that's the first point. Secondly, um, obviously, we're looking now at dismantling the machinery of safeguards that we've been building for the last 12 years. And that is going to take some time. Um, I would not be surprised as this judgment gets, um, discussed, um, and people receive training on it. If we see quite a surge in the Dols world, in, uh, in the number of part 8 reviews, um, because I anticipate particularly care homes will be triggering part 8 reviews with best interest assessors then having to apply the judgment to see whether the person is in fact now deprived or not. Um, we're probably going to also have to think about those cases where the court has also authorized a deprivation of liberty in the community. Um, should those orders just be allowed to lapse? Um, should the public bodies be positively making applications to have those orders discharged, is something I think we're going to have to think about. Obviously, whether it's a Dols authorization or a court authorization, these authorizations are permissive, it said, um, rather than mandatory. Um, so, I think, um, we will have some time to to reflect on how best to deal with that, but obviously, if the numbers are going to drop from the 330 odd thousand that we had most recently back down towards the sort of Cheshire West era, of about 15, 20,000, um, then I think local authorities and local health boards in in Wales are going to be very busy reviewing all these, um, cases. Um, so, dismantling the machinery, I think, is going to be one of the big challenges. Um, and then the third point, really, is in relation to other safeguards because the court seems to stress quite heavily that Article 5 is not the only game in town. There's there's lots of additional safeguards out there. Um, and for me, I think this emphasizes the importance of going back to basics, really. Making sure that people are properly assessing and determining capacity, best interest, necessity, proportionality, um, advocacy, um, as well as, um, care at reviews. Um, because hopefully, the less work that BIAs will have, the more time there will be to do care act reviews. And I think that's going to be a really important way of checking, um, people's, um, arrangements and to address some of the concerns that no doubt most people will have, um, about the judgment. And there's also quite a bit of talk about Article 8 as well. Um, and I think for me, one of the most, um, important sort of principles to bear in mind, um, is that if there is a significant welfare dispute that can't be resolved by discussion, whether there's a deprivation of liberty or not, it needs to go to court, as was said, um, in the Neary case. So, um, I very much, um, remember that principle, um, all the time because I think it it's so, um, critical. Obviously, if the person is not deprived, then there might be issues about access to non-means tested legal representation. Um, but I anticipate that in the sort of Dols cases that we'll be focusing on in future, it'll either be those where the person is obviously objecting, either to where they are, or, I think, to aspects of their treatment, because that's something we'll need to think about. What if you are happy where you are, but unhappy with your care? So, an obvious example, you know, someone might be happy in a care home with dementia, but objecting, resisting to personal care. You know, is that valid consent to confinement? And again, 135 does talk about objecting to treatment, not necessarily just confinement. So, I think there is some legal argument there to be had about how broadly or narrowly valid consent should be interpreted.
[29:52]Yeah, and I I would have thought that like, in within the Dols scheme, the sort of highest priority type cases, even with this judgment, are likely, I would have thought, to still be deprivations of liberty. Um, the impact is going to be more on the lower, medium to lower priority scenarios. Um, and also, you know, for many 21A cases, I would have thought, the person is clearly objecting, um, to to their placement or at least a significant aspects of their arrangements. So, you you might not sort of see a sudden impact on the sort of clear objecting scenarios. It's it's the others. Yeah, it is, isn't it? Because we've we've got these two, two things have happened simultaneously that are massive and different. So, the first thing is there's now this whole idea of valid consent which you can give even though you lack capacity. And it seems to me that that's the first question when asking whether someone's deprived of their liberty. Because if the answer to that is they're seen pretty happy, you don't need to worry about the rest of it. It doesn't matter whether there's objective deprivation of liberty, whatever's happening to them, if they're happy with it, that's fine. That's that's what they seem to be saying. So, you could be in a setting where you have thought to one care, physical restraint, stating medication, but if you're happy with it, then that's valid consent to the arrangements, possibly. So, that's the end of the, that's the end of the story. No further questions needed to be asked. You don't need to go through your statutory authorization process of bothering with any of the other assessments because you've already asked that question. Then you've got this separate question, which is irrespective of what someone is saying, whether they're happy enough or not, um, what's actually happening on the ground and doesn't cross the line into deprivation of liberty. And I think that's where it's really difficult to know the answer because the only kind of concrete things we have to hold on to is that MIG wasn't deprived of her liberty and Meg wasn't deprived of her liberty, but HL was. That's almost all we've got left in terms of actually giving us any clarity about it. And so, um, you then with think, well, and there are some sort of examples in the judgment, you know, the the judgment says, if someone's in a care home, and the doors are locked, to stop them wandering out on the street, that's not a deprivation of liberty. That's not a, you know, that's not a big thing. Don't worry about it. Whereas previously, we would have all thought, well, that's a pretty big indicator, someone's in a locked setting. Apparently, that's not a big indicator anymore.
[32:38]So, there's going to be a huge amount of, um, work needed by everybody to try and figure out how any of this actually applies to real life situations. And, um, and that's another of the questions on the, um, Zoom chat, which is, there are a number of questions which are also similar, which is in relation to the valid consent bit.
[33:35]What does any of this mean? What is a basic level of awareness? What is being happy? What is being content? How do you get that evidence? Who's going to pick it up? How do we know? And I think, um, we're going to have to get some guidance from the Department of Health pretty urgently. Uh, there'll probably be some, possibly faster guidance from Northern Ireland, since they were a bit further ahead and this was their idea. Um, but someone's going to have to produce some guidance about all of that because one of the things that the charities were saying to the Supreme Court was you're dealing with a group of people here often where, um, is someone content with the arrangements is not an easy question to answer because you can't always take what people are saying at face value. They may be vulnerable to coercion, they may be suggestible, they may be institutionalized. Um, you can't necessarily, you know, accept that the first thing they said to you is what they really think, all of that. So, we don't really know the answer to these questions about, well, how are you going to figure out any of this on the ground, because we have no concrete examples about it. And there were no concrete examples before the court, although they do say that, for example, MIG seemed very happy with her arrangements, so that was probably fine. So, we have sort of clues, but, um, but we don't really have, um, much detail.
[35:05]So, there's going to have to be and inevitably will be cases looking at this to the extent that any of those cases now get to court. Because if there's a dispute prior to something coming to court about whether there's a deprivation of liberty, whether someone's validly consenting, then no one's going to bring that dispute before the court. Because by definition, that isn't a case where there's an obvious big objection going on. And so, it's not clear how any of those sort of potentially problematic cases will actually end up being looked at by judges. But because we already have in the system any number of court protection cases currently going on, it may be that we get some help from existing cases, even though there's a potentially other doubt there in the community that will never make it in front of a judge.
[36:34]Yeah, because you're you can only consent validly to something as serious as your own confinement. Anything less serious you can't consent to. Yeah. Yes.
[36:47]Um, so, yeah, so I think we're going to have to draw to a close because we're it's nearly two o'clock. Um, we, um, we've done our best to sort of summarize and have a bit of a discussion about what we think the implications are. We don't know the answers to lots of the questions. No one does. There's going to have to be a period of figuring it all out. There will inevitably, I suspect, we'll be back in the position we were pre-Cheshire West where you present a factual scenario to 10 people and ask them whether it's a deprivation of liberty and if so why or why not, and you get 10 different answers. Um, whether we ever get to something clearer than that, uh, in the absence of Baroness Hale's helpful acid test. I I rather suspect not, but, um, we have got some black and white answers from the Supreme Court. People in a prolonged store of consciousness, not for their liberty, no further questions needs to be asked. People with profound mental disability who are incapable of expressing a view about where they are. Apparently, not within the scope of Article 5. So, there are some, um, sort of categories of people where they've clearly said it's not going to, it doesn't, that that's just nothing, there's no possibility of Article 5 applying. But in all the others where we are, where it's all a bit less clear, um, that's going to have to somehow be some further clarification from the lower courts about what all of this means, um, and how we should be dealing with it. So, although ultimately there might be fewer court cases, I think for the immediate future, there are going to be just as many of them, while everyone tries to figure out exactly what the implications are. So, um, I think we probably have to draw that to a close. Thank you, Arianna. Thank you particularly to Neil, who has only had a couple of hours this morning to read all of that and try and get to grips with it. Thank you all for attending. I'm sorry that we didn't manage to admit more of you or answer all of your questions. Uh, one of the last questions was, is this case going to go to the European Court of Human Rights? No, it isn't. It can't do because there wasn't a claimant. It was a reference by the Attorney General for Northern Ireland. So, there isn't a victim or anyone who could bring a claim to the European, this is it. We're stuck with this until such time as another case goes through the system and potentially goes to Strasbourg. Um, so, the recording will be on the website after about 24 hours. Our written summary is already on our website, um, and no doubt there will be more webinars, opportunities for training, and so on, as everyone tries to get to grips with this, but for now, thank you all very much for joining and, um, good luck, enjoy reading all the judgment in full. Thanks, folks.
