P & Q v Surrey County Council & Ors

The appellants (whom I prefer to describe as P and Q rather than as MIG and MEG) are sisters who have substantial and permanent learning disabilities. P was born on 27 April 1991 and so is now aged 19. Q was born on 11 April 1992 and so is now aged 18. Acting by the Official Solicitor, their litigation friend, they appeal against a declaration made by Mrs Justice Parker in the Court of Protection on 15 April 2010 that “the arrangements for [them] do not amount to a deprivation of their liberty”. As before Parker J, they argue that the arrangements do amount to a deprivation of their liberty. As before Parker J, Surrey County Council (“Surrey”), which is responsible for their care and which is the substantive respondent to the appeal, argues that the arrangements do not amount to a deprivation of their liberty. The mother and stepfather of P and Q were made respondents to the appeal but take no part in it.

The appeal raises a difficult and important issue. This court has been fortunate that Mr Richard Gordon QC was briefed, with Miss Fenella Morris, to present the appeal on behalf of P and Q. Furthermore the court was happy to accede to an application by the Equality and Human Rights Commission (“the Commission”) for permission to become an Intervener in the appeal for the purpose of adducing limited evidence and, in particular, of making submissions albeit only in writing. In the event the written submissions made on its behalf by Mr Paul Bowen of counsel have proved extremely valuable.

The issue whether the arrangements for P and Q amount to a deprivation of their liberty is an issue whether the arrangements engage Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. Article 5 provides:

“1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law –

…

(e)

the lawful detention … of persons of unsound mind …;

…

4 Everyone who is deprived of his liberty by … detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

The practical effect of a conclusion that the arrangements for P and Q amount to a deprivation of their liberty is to be found in the valuable right provided by paragraph 4 of Article 5. For in that event their right would be to take court proceedings for a decision in relation to the lawfulness of their detention and so it would extend beyond their right, which pursuant to statutory guidance Surrey recognises in any event, to a review, at least annually, on Surrey’s part into the continued aptness of the assessment under which their needs are met, including participation in the review by independent advocates on behalf of P and Q. The paragraph would impose a duty on the court itself periodically, again probably at least annually, to review the continued necessity for the arrangements which deprive them of their liberty, albeit perhaps only on paper unless requested otherwise: see Re BJ (Incapacitated Adult) [2009] EWHC 3310 (Fam), [2010] 1 FLR 1373, at [26] – [28]. The court’s review would probably again require independent representation of them.

I entirely ignore the fact that, were this appeal to be allowed, the vast, if unquantifiable, number of necessary reviews of such a character would surely be beyond the present capacity of the Official Solicitor’s department and in particular of the Court of Protection. To have an eye to that factor would be to raise to it the wrong end of the telescope. The importance of the right to liberty is paramount (McKay v. UK (2006) 44 EHRR 827, at [30]) and the state’s positive obligation to provide the facilities necessary for its effective exercise is absolute.

We are told that, since the date of the judge’s decision, the arrangements made by Surrey both for P and for Q have changed substantially: see [16] below. The enquiry whether they are deprived of their liberty requires a detailed examination of the arrangements for them: see [19] below. It would be neither practicable nor appropriate for this court to conduct such an examination in relation to the fresh arrangements for them. So we must focus on the arrangements as they stood before the judge. The recent changes will make our judgments less helpful to the parties than otherwise; but, on a wider basis, they may nevertheless have some value.

P has a mental age of two-and-a-half; her learning disability is either at the lower end of the moderate range or at the upper end of the severe range. She has problems with her sight, for which she wears glasses, and with her hearing, for which she wears a hearing aid. She communicates with difficulty, indeed hardly at all in sentences, and she has limited understanding. She lives largely in her own world and spends much of her time listening to music on her iPod.

Q has an overall mental age of four to five; her disability is at the high end of the moderate range and borders on the mild range. So her communication skills are better than those of P; indeed her language skills are at a level higher than that indicated by the overall assessment. Her emotional understanding is quite sophisticated. Like P, she has problems with her sight. But, unlike P, she is troubled in her mind, exhibits challenging behaviour and may have autistic traits. It is possible that, if she can learn to manage her emotions, Q can somewhat raise the general level of her functioning.

The impairment in the functioning of their minds renders both P and Q unable to make decisions for themselves in relation to anything other than the most trivial, day-to-day aspects of their lives. So they lack capacity in relation to all matters relevant to these proceedings for the purposes of s.2 of the Mental Capacity Act 2005 (“the Act of 2005”). Notwithstanding the potential improvement in the level of Q’s functioning, the incapacity of both of them is almost certainly permanent.

Until April 2007 P and Q lived with the mother. Their father has played no part in their lives. Also living in their home were their half-sister born in 1988 and their sister born in 1993. In 1997 the man who was to become their stepfather also moved into the home.

The life of P and Q in the family home was dysfunctional and abusive. Each of them was subjected to excessive physical chastisement, neglect and deprivation. In 2009, following their removal from the home, the stepfather was convicted on seven counts of rape of their half-sister in the home during the period when they had been living there; albeit perhaps still subject to appeal, he is currently serving a sentence of 14 years’ imprisonment. At the same time the mother was convicted on one count of indecent assault of the half-sister; she was sentenced to nine months’ imprisonment and was released in May 2009. Although not themselves the victims of direct sexual abuse, P and Q were exposed to the sight of sexual activity in the home and lived in an openly sexualised environment.

On three occasions P and Q were placed on the Child Protection Register under the category of non-accidental injury; and on a number of occasions they were taken into respite care. When in April 2007 they were finally removed from the home, P moved into the foster home in which she remained living at the time of the enquiry conducted by the judge and Q moved into the home of her former respite carer. But in the end the latter considered that she could not manage Q’s aggressive outbursts and so, by the time of the judge’s enquiry, she had moved into a small residential home.

The judge made the following determinations:

At the time of the enquiry before the judge the arrangements for P were as follows:

At that time the arrangements for Q were as follows:

Counsel tell us that the changes in the arrangements since the conclusion of the judge’s enquiry in April 2010 are that:

The European Court of Human Rights (“the ECtHR”) has made clear that a deprivation of liberty has three elements:

Neither P nor Q is in a position to give a valid consent to any arrangements for their care: so the element at [17(b)] exists. Furthermore their arrangements are imputable both to Surrey and, for that matter, also to the orders of the judge: so the element at [17(c)] exists. The element at (c) is the mechanism for the exclusion from the ambit of Article 5 of steps taken for the protection of small or disabled children, without recourse to the State, by those with parental responsibility for them in the proper exercise of their powers: A v. A Local Authority [2010] EWHC 978 (Fam). The trouble is, however, that those with parental responsibility often do need to have recourse to the State in securing necessary arrangements for the protection of, for example, disabled or disturbed children; and the question arises, beyond the scope of this judgment, whether the draftsmen of Article 5 were wise to declare that the six cases which they specified therein constituted an exhaustive list of those in which a deprivation of liberty would not amount to a breach of it. A very different situation, namely the “kettling” of demonstrators by the police in Oxford Circus in the interests of public safety, prompts the same reflection: see Austin v. Commission of Police of the Metropolis [2009] UKHL 5, [2009] AC 564.

The judge’s enquiry was therefore into the existence of the element at [17(a)] in each of the different sets of circumstances of P and Q. That said, I believe that Mr Gordon is right to submit that there is overlap between the three elements: in particular I can envisage the role of the state as being relevant to the objective element. The classic exposition of the nature of the enquiry into the objective element, on which no doubt has been cast for 30 years, is that of the ECtHR in Guzzardi v. Italy (1981) EHRR 333, at [92] – [93], as follows:

“… the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question … The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance … the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion …”

In relation to the objective element there are two more recent decisions of the ECtHR of great importance.

The first decision is HL v. UK (2005) 81 BMLR 131; and Mr Gordon submits that, in respect of both P and Q, it requires this appeal to be allowed. Mr HL was an incapable 48-year-old man who was autistic, unable to speak and had a history of self-harm. For 30 years prior to 1994 he had been an inpatient in Bournewood Hospital; and for the final seven of them he had been in its Intensive Behavioural Unit. Then, in 1994, without being formally discharged, he was moved into the home of paid carers. In July 1997, following an incident of self-harm at a day-care centre, he was readmitted to the unit at the hospital and he remained there for four months, whereupon he was returned to the carers. For the first three of those months he was an informal patient, i.e. not compulsorily detained there under the Mental Health Act 1983; and such was the period during which, so the ECtHR held, he had been deprived of his liberty in breach of Article 5. Thus did the court identify “the Bournewood gap” in our legal framework for control over the deprivation of liberty in the case of an incapable person effected otherwise than pursuant to the Act of 1983; and Parliament sought to fill the gap by making insertions into the Mental Capacity Act 2005 which, by s.4A(5) and Schedule A1, set up a framework for such control in the case of a person receiving care or treatment in a hospital or a care home and which, by s.4A(1) and (3), rendered any other such deprivation lawful only if made pursuant to a court order that such was in her (or his) best interests.

In its submissions in the case of HL the UK government had laid considerable emphasis on the fact that Mr HL had been compliant with his return to live in the unit and had never attempted to leave it nor expressed the wish to do so. But the court held, at [90], that, in that Mr HL was incapable, his compliance was not of central importance. The fact was that, irrespective of whether his ward was locked or lockable, he had not been free to leave the unit: [91] and [92]. The court said, at [91]:

“the Court considers the key factor in the present case to be that the health care professionals treating and managing [Mr HL] exercised complete and effective control over his care and movements from 22 July 1997, when he presented acute behavioural problems, to 29 October 1997, when he was compulsorily detained.”

On the back of this quotation Mr Gordon reaches the summit of his case on this appeal; but of course the unit’s complete and effective control over Mr HL was the key factor only in “the present case”. So we need to be alert to material differences highlighted in the judgment. In this respect it is helpful to note first, at [86], that the argument on behalf of Mr HL had stressed that the conditions at the unit of the hospital, which was an authorised “detaining institution”, were to be distinguished from those in the home of the carers; and second, at [93], that, in distinguishing the case of HM v. Switzerland (2002) 38 EHRR 314, the court pointed out that, in the nursing home into which the elderly Mrs HM was placed, the regime, under which, without being allowed to leave the home, she enjoyed freedom of movement and was encouraged to have contact with the outside world, was entirely different from that in the unit at Bournewood.

The second decision is the case of Storck cited above. A young woman aged 18 was placed by her father in a locked ward of a private psychiatric clinic and she remained there for 20 months. Very strong medication was administered to her, at times by force. On a number of occasions she attempted to flee from the clinic and was prevented from doing so by being fettered. Once she succeeded in escaping and the police forcibly returned her there. She was unable to maintain regular social contact with persons outside the clinic. The ECtHR held that all three elements of a deprivation of liberty were present and that, in respect of the objective element, the case was a fortiori that of HL.

At one point in her magisterial analysis of whether P and Q were deprived of their liberty Parker J made an observation, albeit not included in her final summation of relevant factors, that the fact that P and Q were happy in their respective environments had to be relevant to her enquiry into the objective element. Her observation has generated lively debate before us: is happiness relevant? Although a feature which overlaps with happiness is in my view relevant – see [25] below – I agree with the submissions on behalf of P and Q and of the Commission that a person’s happiness, as such, is not relevant to whether she is deprived of her liberty. Its relevance is as to whether any such deprivation is in her best interests: see s.4(6)(a) of the Mental Capacity Act 2005. Such is a necessary condition of its being “lawful” and thus of its not infringing Article 5.

But the overlapping feature which in my view is relevant to the enquiry is whether the person objects to the confinement which is imposed on her. While accepting of course that the objections of a person who has capacity will negate the subjective element, Mr Gordon appears to submit that, irrespective of her capacity, they are irrelevant to the objective element. I disagree. The Commission submits, by contrast, that the existence of objections is relevant to the objective element. To that extent I agree with it. Guardedly it then proceeds to submit, however, that it “is not necessarily true” that the absence of objections is relevant to it. To that extent I disagree with it. If a person objects to the confinement, the consequence will be conflict. At the very least there will be arguments and she will suffer the stress of having her objections overruled. More probably, as in the case of Miss Storck, there will be tussles and physical restraints and even perhaps her forcible return at the hands of the police. This level of conflict inherent in overruled objections seems to me to be highly relevant to the objective element. Equally, however, the absence of objections generates an absence of conflict and thus a peaceful life, which seems to me to be capable of substantial relevance in the opposite direction. In JE v. DE and others [2006] EWHC 3459, [2007] 2 FLR 1150, Munby J in my view rightly held that objections were of relevance, indeed in that case apparently of determinative relevance, to the objective element. Mr JE was aged 75 and, following a major stroke, he lacked relevant capacity. For 15 months he resided in two successive care homes. He consistently expressed the wish to return home to his wife and “vigorously objected” to his stay in each home. Munby J held, at [125], that he had been deprived of his liberty “by being prevented from returning to live where he wants and with those he chooses to live with, in other words at home and with [his wife]”.

From the relevance of objections and also of the lack of them, it is logical to move to the relevance of medication and also of the lack of it. In my view the administration to a person of medication, at any rate of antipsychotic drugs and other tranquilisers, is always a pointer towards the existence of the objective element: for it suppresses her liberty to express herself as she would otherwise wish. Indeed, if the administration of it is attended by force, its relevance is increased. Furthermore, in that objections may be highly relevant, medication which has the effect of suppressing them may be relevant to an equally high degree. But again, conversely, the absence of medication is a pointer in the other direction.

I turn to consider the alleged relevance of the purpose behind the arrangements under scrutiny. Parker J said:

“I am of the view that in this case it is permissible to look at he ‘reasons’ why they are each living where they are … there are overwhelming welfare grounds for them not to live in their family of origin. In relation to both girls, the primary intention is to provide them each with a home … In neither of those homes are they there principally for the purpose of being ‘treated and managed’. They are there to receive care.”

To the extent that, as Mr Gordon complains, the judge was there attaching significance to the fact that the purpose of the arrangements for the girls was to further their best interests, I believe that she was wrong to do so. But, although therefore to a limited extent I dissociate myself from the terminology of that passage, the judge nevertheless was there alighting on a relevant feature.

For, by her reference to the provision for the girls of care in a home, the judge was by implication stressing the relative normality of the living arrangements under scrutiny. If the person is living with her parents or other members of his natural family in their home, she is living – in that respect – the most normal life possible. Typically – but sadly not always – there will be no deprivation of liberty in such circumstances: A v A Local Authority, cited above, at [131], per Munby J. Not much less normal for this purpose is the life of a child in the home of foster parents or of an adult, such as Mr HL, in the home of carers; such Mr Gordon is constrained to accept. But, even when the person lives in an institution rather than in a family home, there is a wide spectrum between the small children’s home or nursing home, on the one hand, and a hospital designed for compulsory detentions like Bournewood; and it is in my view necessary to place each case along it.

Of course the enquiry into normality transcends an enquiry into the residential arrangements. Of potentially great relevance in the case of children or young adults is whether, as would be normal almost irrespective of the degree of any disability, they go out to some sort of school or college; and, in the case of other adults, whether they go out to college or to a day centre or indeed in order to pursue some form of occupation. “It would seem then that if the individual can maintain a (relatively) normal daily balance between work and home then there may not be a deprivation of liberty”: “Law of the ECHR”, by Harris, O’Boyle and Warbrick, 2008, 2^nd ed., 124. Furthermore, as I have shown, stress was laid in the cases both of HL and of Storck on the restrictions placed on outside social contact, i.e., another major aspect of normal life; see also LLBC v TG and others [2007] EWHC 2640, [2009] 1 FLR 414, at [105(ii)], per McFarlane J.

“Whether a certain situation constitutes a deprivation of liberty may depend on the living conditions of the person concerned and the degree of freedom he or she enjoyed otherwise”: “The European System for the Protection of Human Rights,” by Macdonald, Matscher and Petzold, 1993, 289. We did not hear argument in this latter respect, no doubt because Parker J chose not to focus on the degree of confinement – as opposed to the abuse - to which P and Q had been subjected in the family home. I note and respect the negative view clearly expressed on this point by Smith LJ at [39] below but, I prefer not to venture an opinion whether it may be relevant to focus on reductions in the level of autonomy in the arrangements under scrutiny from its level in the arrangements which were in place before the protective steps were imposed.

Factors relevant to the cases both of P and of Q were that:

Additional factors relevant to the case of P were that:

Additional factors relevant to the case of Q were that:

In the above circumstances I consider that Parker J was clearly correct to conclude that P was not being deprived of her liberty. I note that in A v. A Local Authority, cited above, Munby J (now also my colleague in this court, whose opinion on a balancing exercise such as the present is, like that of Parker J, entitled to great respect) suggested, at [148], that, in P’s case, Parker J’s conclusion had been correct and that, in Q’s case, the circumstances had been so different from those in the case before him as to make expression of his views inappropriate. On any view Q’s case was closer to the border of deprivation by virtue of the factors in [33(a), (c) and (d)] above. But, following protracted thought, I am convinced that Parker J’s conclusion in Q’s case was also correct. The small size of the home for adolescents in which she lived; her lack of objection to life there; her attendance at the educational unit; her good contact with such members of her family as were significant for her; and her other, fairly active, social life: such were the main factors which kept her case outside Article 5.

I would dismiss the appeal.

I agree with the judgment of Wilson LJ. I have, however, a reservation about one peripheral aspect of his judgment. I had not thought that this was of such importance as to warrant a separate judgment. However, as Mummery LJ has focussed on this point in his judgment, I think it right that I should put my own view into writing.

I agree entirely with Wilson LJ’s approach to the assessment of whether there has been a deprivation of liberty such as to engage article 5. He considers various criteria, including the manifestation of objections to the arrangements, the use of drugs which might suppress the expression of objections, the normality of the living arrangements and the opportunities for leaving the place of residence for the purposes of recreation, education and social contact. Those are the matters which seem to me to be important in the present case.

Wilson LJ also mentioned the possibility that it might be relevant to consider the arrangements in which the person had lived before the state became involved. He did not express any view upon this topic because we had heard no argument on it. Ms Hewson for the Council submitted that the improvement in P and Q’s situation was so marked that it amounted to an enhancement of their liberty such that it was clear that article 5 was not engaged. Mummery LJ is instinctively attracted to that submission.

I would go further than either Mummery LJ or Wilson LJ and make plain my own view which is that the previous arrangements are not relevant to the question of whether the present arrangements engage article 5. Article 5 is not concerned with any changes in the person’s situation; it is concerned with the objective question of whether there is, under the arrangements imposed by or imputable to the state, a deprivation of liberty. I envisage the possibility that the arrangements made by a Council might reduce the degree of liberty available to a person and yet still avoid being a deprivation of liberty; equally they might increase the degree of liberty and yet still represent a deprivation of it.

As the Strasbourg case law shows, it is not every restriction on freedom of movement and association which will amount to a deprivation of liberty and will engage article 5. Whether the situation amounts to a deprivation of liberty as opposed to a restriction upon it is a matter of fact and degree and will obviously be case sensitive. As I have said, I do not consider it relevant to consider whether there has been an increase or a decrease in the degree of liberty allowed. The test is an objective one but the assessment must take account of the particular capabilities of the person concerned. What may be a deprivation of liberty for one person may not be for another. The question is whether the arrangements made by the state for this individual amount to a deprivation of his or her liberty.

Subject to the small reservations expressed by Wilson LJ, I would endorse the approach taken by Parker J and her conclusion that the arrangements made by Surrey for P and Q do not amount to a deprivation of liberty so as to engage article 5.

I agree with the judgment of Wilson LJ. He rightly describes the Article 5 point as “a difficult and important issue.” Permission to appeal on it was granted at the hearing.

Wilson LJ’s clarifying judgment abounds with good sense. I have no doubt that, for the reasons given by him, we should dismiss the appeal from the excellent judgment in which Parker J carefully considered the totality of P’s and Q’s circumstances, both before and after the implementation of the Council’s care arrangements.

Without repeating or contradicting what Wilson LJ says I would like to add brief comments on just two points.

The first is procedural. An appeal under Part 52 CPR is against the order of the lower court, not against the reasons that the lower court gave for its decision: see Part 52.0.13 Civil Procedure Vol 1 at p1525. No criticism at all is made of those parts of Parker J’s order declaring that the accommodation, educational and contact arrangements for P and Q are lawful as being in their best interests. Those were the issues of substance in the case. They have been resolved. Their correctness is not challenged on the appeal. An appeal has only been procedurally possible as a result of the inclusion in paragraph 3 of the order of a formal declaration that the arrangements do not amount to a deprivation of their liberty. The arguments about the declaration are confined to the question whether, on the facts of this case, Article 5 of the Convention is engaged. If it is not engaged, that is the end of the matter. Even if it is engaged, that is the end of the matter, because it is conceded that there has been no breach of the Article.

Ms Barbara Hewson, appearing for the Council, objected that the appeal was a moot. Both the Council and this court have heavy workloads. They both face increasing strains on shrivelling resources. Little time is left for involvement in moots or interesting legal arguments about things that make no difference to the outcome of the case. I have sympathy for the Council’s objections. I would re-iterate the view, informed by more than one recent experience, that this is not a moot court, a debating chamber or a seminar centre. We can and do participate in those activities on other occasions in different places. It is not the function of this court to hand out advisory opinions in cases where there is no dissatisfaction with the outcome of the substantive issue.

That said, I agree that it would not be right for this court to decline to entertain the appeal. As a matter of procedure, Parker J formally declared something to be the case in law, which is subject to appeal on the ground that it is not the case. More important are the practical consequences of engagement with Article 5 which would carry with it the requirement of regular court reviews explained by Wilson LJ in paragraph 4 of his judgment. I recognise the importance of clarifying the scope of application of Article 5, of preserving its integrity and of emphasising, in the two stage process of establishing a breach of the Article, the distinction between engagement of the Article and of justifying a deprivation of liberty.

Secondly, in familiarising myself with the jurisdiction of the Court of Protection, I wondered by what process of legal reasoning it could conceivably be said that the residential care arrangements made by the Council (a) for rescuing two seriously and permanently disabled young people from the “dysfunctional and abusive” and other limiting conditions of their lives with their mother and stepfather and (b) for placing them in the supervised and more recognisable family conditions of physical and emotional care, protection and education described by Wilson LJ (paragraphs 14-16 and 31-33) amounted to a deprivation of their liberty so as to engage Article 5 of the Convention.

The “Core Submissions” of Mr Richard Gordon QC skilfully constructed the case for protection against deprivation of liberty on the general principles extracted by him from the Strasbourg case-law. He began with the indisputable facts that what the Council had done for P and Q was (a) without their consent, for they lack mental capacity, and (b) attributable to the State. Then he said that the twin elements of incapacity and State involvement affected the remaining consideration (c), that is the objective element of confinement by being required to live indefinitely in a particular place away from, and having only restricted contact with, their family.

Mr Gordon then criticised the substance of Parker J’s judgment contending, first, that she took into account factors which were legally irrelevant to the confinement element of the deprivation of liberty (as distinct from the legal justification of a deprivation of liberty) (e.g expressions of “happiness” by P and Q, their “best interests” being served by the arrangements and the benign nature of the reasons for the placements);and, secondly, for not taking into account factors that were relevant to the deprivation aspects of confinement (e.g. the treatment of Q with sedative medicine to manage her behaviour, the application of restraint on attempts to leave or in cases of challenging behaviour and restrictions on family contact).

On those submissions I agree with Wilson LJ’s general discussion, his detailed consideration and his overall conclusions on the balancing the totality of the various factors affecting the situation of P and Q and the question whether Article 5 has been engaged by a deprivation of their liberty.

In my judgment, the general principles extracted from the Strasbourg case law on Article 5 do not warrant the conclusion that, in any meaningful sense, P and Q have been deprived of their liberty. The general approach advocated by Ms Hewson was that, looking at the situation of P and Q in the round and taking full account of its positive as well as its negative aspects, the care plan arrangements implemented by the Council had rescued P and Q from an abusive and neglectful environment, protected them from physical and emotional harm, liberated them from conditions of deprivation and afforded them more opportunity, given the limitations that accompany their disabilities, for greater fulfilment in an environment more free than what they previously had. It had been (she submitted) in a real and positive sense an enhancement of their liberty. I confess that, instinctively, I found great attraction in Ms Hewson’s approach. But there are dangers in it: for it risks confusing matters which affect whether a deprivation of liberty is lawful with whether it exists at all.