'Residual liberty' and the idea that the extent of deprivation is a relative question sit uncomfortably with the Deprivation of Liberty Safeguards, says David Hewitt
Some suggest that there is such a thing as 'residual liberty'; that although I might lose my liberty by order of the court, or because of my mental disorder, I do not lose so much of it that I cannot subsequently lose more. The Court of Appeal made this suggestion recently in Iqbal v Prison Officers Association  EWCA Civ 1310. Although it is based on an earlier case in that court, it sits uncomfortably with the view of the House of Lords in the same case (R v Deputy Governor of Parkhurst Prison and others, ex parte Hague  UKHL 8) and with a later decision of the same court (see 'Stubborn residue', Solicitors Journal 154/3, 26 January 2010). But what would be the implications of residual liberty for the Deprivation of Liberty Safeguards (DoLS)?
The DoLS are intended to protect incapable people in care homes and NHS hospitals who are deprived of liberty. There is, however, confusion about what that might mean. But what if the 'liberty' of which one must be deprived in order to come within the DoLS was to incorporate the 'residual liberty' mentioned in Iqbal? That must be a legitimate question. The nature of liberty surely cannot differ according to whether it may be taken away by the criminal law or the civil law.
A question of degree
The notion that some vestige of liberty might survive detention suggests that one may be deprived of liberty to varying degrees: I am undoubtedly deprived of liberty if I am committed to prison or detained in hospital, but it seems that is not the end of the story and that by being confined to a room or cell, perhaps, I might be further deprived of liberty. That would in itself be problematic for the DoLS: the notion is not contemplated, either in the safeguards themselves or in the accompanying code of practice, and, as a result, we are not told what 'degree' of deprivation of liberty would have to be achieved before they were engaged.
This suggests that the question not just of how far one is deprived of liberty, but also of whether one is deprived of liberty at all, is a relative one. And this in turn seems to demand a comparison between one's current and former states, and to entail that one's 'residual liberty' will only be in question if one's current state represents a further degree of confinement from one's former state. A man's 'residual liberty' is not in question if, it being lawful to imprison him, he is simply moved from one gaol to another, or from a gaol to an island. It is in question, however, if lawful authority exists simply to confine the man to a room, but he is subsequently locked in a cupboard.
But what, in this context, does the 'residual' in residual liberty actually mean? With what former state is one's current state to be compared; with some pure, absolute, antediluvian state of liberty, perhaps? (see 'Off the scale', Solicitors Journal 154/8, 2 March 2010).
An alternative view, which seems implicit in the few decisions that actually consider residual liberty, is that the comparison is not with abstract liberty at all, but with the actual state that immediately preceded the current one.
In some ways, this would be sensible: where a man confined to his own house by disability is moved to a hospital that he cannot leave for the same reason '“ and only for that reason '“ it seems odd to argue that he is deprived of liberty.
To do so would be to imply that, alongside their negative duty not to prevent the man from leaving, the proprietors of the home have a positive duty actually to enable him to do so, and that if they do not fulfil that positive duty they will have to resort to the DoLS or run the risk of being held to have unlawfully detained him.
But such a course might also produce less welcome results. Consider, for example, two men in a care home, each of whom is confined there under lock and key. Mr A came from his own home, whereas Mr B came from the maximum-security wing of a local prison.
If the question of whether a person is deprived of liberty really is a relative one, and the person's immediate past state is relevant, Mr A's current state amounts to deprivation of liberty but Mr B's does not, even where the interventions are precisely the same in the case of each man.
This curious position is the result of treating deprivation of liberty as a relative concept, as someone might do, and might have to do, who accepts the notion of residual liberty. It sits oddly with the DoLS, however, and might imply an even more damning conclusion: not just that 'deprivation of liberty' was poorly thought-through, that has been clear for some time.
Despite its crucial place in the safeguards to which it lends its name, the concept fails to address key jurisprudence and is fatally undermined as a result.