Local authorities inundated with applications for Deprivation of Liberties authorisations after Supreme Court decision

I covered the Supreme Court decision on Deprivation of Liberties in the West Cheshire and other cases earlier in the year. Just an update: there is evidence of adult social services teams of an inundation of cases which can only mean that people in residential care and receiving home care are getting their rights better looked after, although it’s clear there are problems. One commentator on the Community Care website argues that this decision enshrines social work values in the law, although possibly many other professions also value respect for autonomy among vulnerable people.

Link to the Supreme Court decision

Link to ‘Community Care’ article.

A good summary of the legal effect of the decision is provided by the Mental Health Law Online website, as follows:

(1) The ‘acid test’ for deprivation of liberty is whether the person is under continuous supervision and control and is not free to leave. (2) The following are not relevant: (a) the person’s compliance or lack of objection; (b) the relative normality of the placement (whatever the comparison made); and (c) the reason or purpose behind a particular placement. (3) Because of the extreme vulnerability of people like P, MIG and MEG, decision-makers should err on the side of caution in deciding what constitutes a deprivation of liberty.

The MHLO website also has loads of relevant links to other cases and to commentary:

Link to Mental health Law Online website.

This includes a link to the video of Lady Hale announcing the decision in the Supreme Court, which itself is an admirably clear account of the decision and why it’s important.

Link to Lady Hale video.

Deprivation of Liberty Safeguards: review the constraints and get external reviews

More on the recent Supreme Court decisions on Deprivation of Liberties Safeguards; this legal commentary provides helpful guidance to local authorities, care home providers, hospices, hospitals and the like on how they should review their practice and decisions.

The helpful point is: ‘focus on the constraints’, not on the overall circumstances that a patient is in. And get independent external reviews done of long-standing arrangements; it is easy to get seduced by continuing with arrangements that seem to be working well.

Deprivation of liberty safeguards: “A gilded cage is still a cage” | Kennedys.

A gilded cage is still a cage – Supreme Court deprivation of liberties decision

A Supreme Court decision on some of the most discussed of Deprivation of Liberties cases is now reported. A legal commentary indicates that these represent major changes in the DOLS law; the legal commentary suggests:

There are likely to be thousands of people who were not considered to be deprived of their liberty yesterday who will be today in light of this judgment.

It recommends that all local authorities and NHS organisations should review their caseloads; they will probably have to issue DOLS documentation in numerous cases where it was not thought necessary.

The judgement by the respected Lady Hale reviews the history of DOLS law in the UK and European Court of Human Rights decisions, some of which took place after previous lower courts in the UK had decided the cases in question here. It’s a very good primer on the existing law, and of course, as always with Lady Hale, very clearly written and calling on the original sources. No unnecessary legal jargon here.

Here are some useful quotations:

(at 34) People who lack the capacity to make (or implement) their own decisions about where to live may justifiably be deprived of their liberty in their own best interests. They may well be a good deal happier and better looked after if they are. But that does not mean that they have not been deprived of their liberty. We should not confuse the question of the quality of the arrangements which have been made with the question of whether these arrangements constitute a deprivation of liberty.

(at 35) …it is quite clear that a person may be deprived of his liberty without knowing it. An unconscious or sleeping person may not know that he has been locked in a cell, but he has still been deprived of his liberty. A mentally disordered person who has been kept in a cupboard under the stairs (a not uncommon occurrence in days gone by) may not appreciate that there is any alternative way to live, but he has still been deprived of his liberty. We do not have any difficulty in recognising these situations as a deprivation of liberty. We should not let the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty.

(at 36) The whole point about human rights is their universal character. The rights set out in the European Convention are to be guaranteed to “everyone” (article 1). They are premised on the inherent dignity of all human beings whatever their frailty or flaws. The same philosophy underpins the United Nations Convention on the Rights of Persons with Disabilities (CRPD)…

(at 37) …what is the essential character of a deprivation of liberty? It is common ground that three components can be derived from Storck, paras 74 and 89, confirmed in Stanev, paras 117 and 120, as follows: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the state…

45. In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorably from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.

46. Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.

And even a good quality, but over-controlling, social care provision aimed at providing for a disabled person’s well-being still deprives them of their liberty, so you have to apply the safeguards.

For social workers and providers of social care, this makes it clear that even if what you are doing is for someone’s protection, and even if disability may lead to concern for someone’s safety and well-being, close supervision and restriction in the freedom to decide where you can go is still a deprivation of liberty, and requires the use of the safeguards.

Link to legal commentary: Supreme Court hands down decision on the joint appeals of Cheshire West and P&Q (MIG & MEG) – the Court ruled that all three were deprived of their liberty – Lexology.

Link to the Supreme Court Judgment Look for 19th March 2014 and click on ‘judgment’ in the right hand column in the cases of P and P and Q to get a pdf; the pdf is the same in both cases, since the judgment covers both cases. P and Q is what has been known as MIG and MEG in earlier proceedings.

Deprivation of Liberty legal and reports commentary

Useful legal newsletter reporting and commenting on latest Deprivation and Liberties decisions and reports

 

People have not lost their mental capacity just because they are indecisive

This is what the judge said:

‘…common strategies for dealing with unpalatable dilemmas – for example indecision, avoidance or vacillation – are  not to be confused  with  incapacity. We should not ask more of people whose capacity is questioned than of  those whose capacity is undoubted.

An interesting summary and legal comment on a Court of Protection case; a woman with long-standing schizophrenia, who was unable to make a decision which doctors thought was in her best interests.

Link to the report of the Court of Protection decision.

Link to the Lexology commentary from a specialist firm of lawyers.

Accepting the risks of people living in their own homes – a Court of Protection case

Any social worker with older people will have experienced the situation where the extent of care someone needs makes them unhappy: nobody likes to be dependent, and often people have to put up with it. But this is also sometimes about the end of life. It’s not possible to work in end-of-life care for long without coming across someone who wants to go home, but is putting themselves at risk by doing so, because their care cannot adequately be provided at home. The professionals often react to this by refusing to accept the risks. A Court of Protection case looked at a deprivation of liberty case that raises some of these issues.

The case was unusual in that M, a woman of 67 years, was only considered not to have mental capacity in relation to her diabetes care; she was fine in other aspects of her life. There was a record of her going home, not managing her diabetes properly and having to be expensively re-admitted to hospital. The CCG (clinical commissioning group) paying for her care would not fund 24 hour care at home,which would probably be too intrusive for M anyway, and regular nurse and carer visits were not enough to make sure she kept to her regime, so they were paying for her to be in a care home, where her condition and diabetes management had improved. But M found this particularly unpleasant, being a private person who disliked a communal lifestyle. Many of the other residents were much older and had dementia – not attractive company for a youngish woman. She also had a partner who supported her, but was not living full-time with her and could not provide for all her care needs. It seemed she was being deprived of her liberty simply to keep her alive for as long as possible. One of the witnesses said: ‘…at the care home there is almost complete certainty of physical safety at the cost of the happiness of M’ (para 32).

The decision was about the balance of risks: should she put up with a unwanted lifestyle simply in order to have her life preserved? The judge’s conclusion is:

In M’s case there is little to be said for a solution that attempts, without any guarantee of success, to preserve for her a daily life without meaning or happiness and which she, with some justification, regards as insupportable (para 38).

So he allowed some time for arrangements to be made and then withdrew authority for the deprivation of liberty order.

The judge makes the point (at para 41) that he accepts that the court should take responsibility for such decisions rather than the professionals, whose duty of care means that they should not have to make this judgement. I’m afraid I’m a bit more critical of the professionals. What is a care professional for, but to help service users balance their various needs? One of the lacks in this case seems to me to be a social work perspective which sees people holistically, not as patients having services delivered, but as human beings living a social life with relationships that are important in themselves, and whose preferences for the kind of life they want to lead having an important place in the decision-making. Also, I can’t help imagining that the CCG was not wanting a return home because it would have to pay the expenses for re-stabilising her care in hospital again if the return home failed – the care home was the cheap option. Perhaps improving the quality of care and the relationships between its staff and M and her partner was too much like expensive hard work.

The judge also commented how good it was that the judge at first instance – this was an appeal – had visited M at the care home and listened to her views. He said:

The visit has therefore had the dual purpose of informing the court of M’s views and of making M feel connected to the proceedings without putting her into the stressful position of having to come to court in person. I commend this as an approach that may be of value in other cases of this kind (para 42).

So let’s have no nonsense about courts not stirring from their imposing buildings and going out into the real world.

Link to a legal commentary. This lists the law firm’s newsletters; scroll down and click on: Mental Capacity Law Newsletter – December 2013 mc_law_newsletter_december_20132.pdf

Link to the report of the court case.

Changes in liberty safeguards:kidding yourself you’re not locking someone in

The Deprivation of Liberty safeguards are part of the Mental Capacity Act 2005 which require care agencies to get authorisation before restraining people, for example refusing to let them leave hospital or confine them in their room. An interesting result of the changes to the NHS is that local authorities are taking over as supervising bodies for hospitals, because the Primary Care Trusts are being abolished (the local authorities have been given money to do this; another example of the costs of the reorganisation which I bet the Department of Health didn’t think about).

Link to Department of Health document.

This is interesting, because there is a widespread view that hospitals don’t bother all that much with the safeguards. Neither do a lot of care homes, but at least the local authorities that are supervising them are not usually also the managers. It will be interesting to see whether this change makes much of a difference.

A related slice of information comes out of the recent CQC report on care services (see p 103).

There were a significant number of concerns about the use of seclusion to manage challenging  behaviours. Safeguards were not always implemented and, in particular, poor recording did not give a clear picture of the use of seclusion and longer-term segregation.

A range of different terms were used to describe circumstances in which people might effectively be detained in seclusion: “Nursed in his room”, “Placed in the low-stimulus area for a sustained period” or “Chose to be in the safe-care suite”.

It seems that nurses and managers may be kidding themselves that they are not locking people up, when they are doing the equivalent and calling it caring. Nurses and social and care workers (and their managers) need to be a bit more self-critical about what they are really doing.

Link to the CQC report.