What use are the Deprivation of Liberty Safeguards?
How do the safeguards work in relation to the Human Rights Act, the European Convention on Human Rights, No Secrets and section 16 Mental Capacity Act 2005?
I have been working with the Safeguards and Deprivation of Liberty issues now for quite sometime.
There are 3 roles which I undertake; Independent Social Worker, Trainer and Chief Executive of a Managing Authority working with people with autistic spectrum disorder, learning disabilities and behaviour which challenges services. These roles bring me into close contact with issues around Deprivation of Liberty and the Safeguards.
I work as an Independent Social Worker providing reports on Best Interests for matters relating to capacity, residence, care and contact being decided in the Court of Protection. I have been doing this since around 2000; originally relating to common law issues decided in the High Court under its inherent jurisdiction but since 2007 of course, such matters are decided in the Court of Protection. In that time I have worked in several cases where Deprivation of Liberty has been an issue.
Through my training and work in the Courts I have started to become increasingly uncomfortable about how the safeguards can be used effectively and lawfully. Sometime ago I attended a seminar arranged by the Legal Action Group in London. This was prior to the implementation of the safeguards. At that seminar Justice James Munby told the group present, what I understand to be, that he felt the safeguards were not really needed as, through the Inherent Jurisdiction of the High Court and now the Court of Protection, a methodology and framework had developed that would allow matters of Deprivation of Liberty to be dealt with by the Courts. This statement had really set me thinking and I have followed matters with a keen interest since then.
At the time of that statement I felt that Justice Munby perhaps had no real knowledge of the amount of people actually deprived of their liberty across the country. From a social work practice base and from my training courses I was well aware that there was, and is, a vast underbelly of complex cases, where people are deprived of their liberty, that were, and still are, getting nowhere near the Courts. I felt that I could see the thinking behind creating a system where “basic” cases could be sorted out without recourse to the Courts. I realise today that those comments were perhaps related to the number of none “basic” cases that schedule A1 (the Deprivation of Liberty Safeguards) does not get to the heart of. The safeguards, in my opinion, may only be used to resolve the most basic of cases.
So why do I think this and what distinguishes a basic case from a complex case?
The definition of what is and what is not a deprivation of liberty is still very vague. The leading case law, at the time of writing, is still Justice Munby’s ruling in the case of DE and JE versus Surrey County Council. The DoLs Code of Practice also cites HL v UK and LLBC v TG, but each has its own specific issues that seem to cloud the matter. I have a feeling that there are many red herrings that arise from these latter cases. Firstly TG; most of the ruling is taken up with the lawfulness of a “Without Notification” application to the Court. There is no concentration on the Deprivation of Liberty issue and Justice Macfarlane limits himself to a very short ruling in relation to the actual issue of “was it a deprivation of liberty?” We really get to know very little from the ruling about TG, his need and circumstances – unlike Munby J’s ruling on DE. It is almost as if the deprivation of liberty is a peripheral issue. All we really have is what follows and is included in the Code of Practice:
• The care home was an ordinary care home where only ordinary restrictions of liberty applied.
• The family were able to visit TG on a largely unrestricted basis and were entitled to take him out from the home for outings.
• TG was personally compliant and expressed himself as happy in the care home. He had lived in a local authority care home for over three years and was objectively content with his situation there.
• There was no occasion where TG was objectively deprived of his liberty.
The judge said:
‘Whilst I agree that the circumstances of the present case may be near the borderline between mere restrictions of liberty and Article 5 detention, I have come to the conclusion that, looked at as a whole and having regard to all the relevant circumstances, the placement of TG in Towerbridge falls short of engaging Article 5.’
The reason I am interested in Macfarlane J’s ruling on TG is that he described the matter as “borderline”. Logic therefore tells me that anything that is borderline is very close to being a deprivation of liberty and it would not take very much to take it over that borderline. We have to remember the basics, from HL v UK in the European Court of Human Rights:-
‘to determine whether there has been a deprivation of liberty, the starting-point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance.’
In many ways this statement has served to cloud the issue for many. Whilst it is no doubt the leading statement on the matter and one which I respect, it does set us on a course that creates, in my opinion, masses of needless bureaucracy at a time when the country can least afford it. The ruling on TG, in my opinion as I have no evidence from the text of the ruling to support it, is that the Judge believed that the “degree and intensity” was not sufficient, although close, enough to say that this was a deprivation and not a restriction. Further, the third of the bullet points, which is the one that appears to look at degree and intensity, is extremely worrying in so much as it suggests that if a service user or patient is happy and compliant, then a deprivation of liberty is less likely to take place. Apart from the methods used to get HL to the assessment and treatment unit; he would appear to have been happy and compliant whilst he was there – these two cases are fairly contradictory, but of course we are lead to the “specific situation of the individual”.
The case of DE leads us more to believe that in circumstances where professionals take the important decisions – such as where a person lives, whether they can leave, and whether they can be with their wife – a deprivation of liberty is more likely to have taken place. We see from Munby J’s extensive ruling that DE was not objectively content.
I have looked at the ruling in TG and created a simple “box tool” to help me decide whether a deprivation of liberty is taking place. I have to say; however, that I am cautious about the tool simply because of the issue of whether a person is happy or objectively content muddying the waters. Some people are not content, they are institutionalised. Others are compliant simply because they are clinically depressed in old age. Never as a direct result of old age; more likely as a result of the immense social and physical losses that accompany old age for so many who find themselves in care homes. We have heard the term, “pleasantly confused” many times, never as a clinical description I hope, but more a descriptive term used by carers. If we are to take Macfarlane’s ruling and run with it we would have to distinguish between those people with dementia who are “happy” and those who are not and this could be the deciding factor. I feel this would be dangerous.
The “ box tool” below takes the ruling in TG and separates out four distinct elements. It places Macfarlane’s statements about TG below the borderline and looks for a converse statement and places that above the borderline:
Macfarlane sees a person; TG, who lacks capacity to decide where he lives and upon his care and treatment as not being deprived of his liberty. It is almost certain that the carers at the Towerbridge residential home would not have allowed TG to leave; in any case, he was there by Court Order. So we see a person who lacks capacity and is not free to leave as not being deprived of his liberty. To create the box tool I had to look at the difference between TG and DE; the latter clearly being above the borderline and deprived of his liberty. If we look at the issue of “intensity and degree” then we have consider that TG was below the line due to there being no identifiable “impact” of the restrictions in place. Conversely DE is above the line in this box as there was a clear and identifiable impact; he was distressed about not being able to go home most of the time he was in the care setting.
The next box is perhaps easier to consider. TG was in an ordinary care home; however, so was DE. It is therefore clear that the particular setting does not make a difference over all; however, it might if we were considering the converse; a specialist care home. To provide the converse statement here I feel that had TG been happy and objectively compliant, yet in a specialist care home, MacFarlane may have taken a different view – given that he needed to draw attention in such a limited ruling on the “ordinariness” of the setting. It must have been a factor.
To put the term “specialist care home” as the converse to “ordinary care home” seemed logical. So what is a specialist care home? To me, it is one where the Statement of Purpose declares it as providing specialist care to people with cognitive impairments or mental illness; where there must always be staff on duty professionally qualified to work with people with cognitive impairments or mental illness, where the environment may have key features designed to prevent the general population of the care home leaving; one where staff may also be specifically trained in physical interventions. In my view, had TG been in a care home with the aforementioned characteristics, MacFarlane would probably have considered that the case crossed the borderline and he was deprived of his liberty.
When we look at what “ordinary restrictions of liberty” might be, I tend to think of those that are the natural consequences of sharing living space and communal areas with several other people. These types of restrictions will most likely be those that occur almost naturally in a residential care home, a hospital, or even a hotel. These might be set meal times, limited menu choice, not having a personal telephone but using a pay phone, and some limitations on visiting. Conversely, there may be specific restrictions on the individual and to define these I look to another paragraph from the European Court’s ruling on HL v UK:
“the key factor in the present case [is] that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements” and “the applicant was under continuous supervision and control and was not free to leave”
The two important factors in respect of this element of the box tool are highlighted in blue above as we are not concerned here with “not free to leave”. Generally speaking many staff attending training from care setting such as EMI, or EMD residential care homes and care settings, such as our own that work with people whose behaviour is described as challenging, agree that the primary reason the service users are living with their care is because their care and movements needs complete and effective control and continuous supervision. Nobody has ever said that continuous supervision had to be 1:1 staffing levels or higher but that is a good indicator of continuous supervision. In EMI nursing homes with staffing levels at around 1:6 staff would have a great deal of explaining to do if they were not continuously supervising their residents throughout the time they are awake. In our own care settings we have extremely high staffing levels and very thorough active support protocols that do both supervise continuously control behaviour; hopefully completely and effectively.
One might argue that if a service user is in a specialist care home as defined above, they will almost certainly have individual specific restrictions at the level I have described; so why have two boxes? The reason is that it is possible to apply such restrictions in ordinary care settings.
The final box is the one I do not like – it is the TG box! It may be disrespectful to call it the “MacFarlane ruling box” but in many respects that is what it is. How does one measure “objectively content”? To do so we must be very careful to understand institutions, institutional behaviour, and that older people in particular, are not simply depressed because they are old. I have to leave it in the tool for now because of the current state of case law but as soon as I can I would like to address this issue and remove it. I have a very strong belief that a person is deprived of their liberty if they are not free to leave if they made a meaningful attempt to do so and if they lack capacity to decide where they should live and on their care and treatment that the Mental Capacity Act with its amendments applies.
To me, if there are any elements in the specific situation of the individual that take us into the top four boxes; any of them and just one of them, then there is almost certainly going to be a need to apply the safeguards and to have the deprivation of liberty authorised.
The first question I asked was about how much use are the safeguards? I have mentioned that I believe they can only really be of significant use in straightforward or basic cases. This is due to the impact of the Human Rights Act and the European Convention on a person’s situation and what can be done through the safeguards alone. Note the following from the Code of Practice where the safeguards are described:
What are the deprivation of liberty safeguards?
1 .1 The deprivation of liberty safeguards provide legal protection for those vulnerable people who are, or may become, deprived of their liberty within the meaning of Article 5 of the ECHR in a hospital or care home, whether placed under public or private arrangements.
The European convention rights also include article 8 which refers to the right to respect for private and family life as well as article 5 regarding deprivation of liberty. It is clear that article 8 human rights cannot be interfered with disproportionately when using the Mental Capacity Act to deprive a person of their liberty. The type of situation where the safeguards can be used is therefore limited to those that only involve a potential infringement of article 5 rights. This is the type of situation where everybody involved with person, including close relatives, partners and friends agrees that the deprivation of liberty is in the person’s best interests.
In situations involving the safeguarding of vulnerable adults where the action intended by those safeguarding the person is intended to remove them from their home and family, partners or friends against the wishes of those concerned then a Personal Welfare Order will be needed from the Court of Protection. This is because such an act will interfere with article 8 rights and the safeguarding authority needs the Court to determine whether such an act will be lawful as per s15 and s16 Mental Capacity Act 2005:
15(1) The court may make declarations as to —
(a) whether a person has or lacks capacity to make a decision specified in the declaration;
(b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration;
(c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person.
(2) “Act” includes an omission and a course of conduct.
Section 16 of the Act gives the Court powers to make decisions on behalf of a person:
16(1) This section applies if a person (“P”) lacks capacity in relation to a matter or matters concerning —
(a) P’s personal welfare, or
(b) P’s property and affairs.
(2) The court may —
(a) by making an order, make the decision or decisions on P’s behalf in relation to the matter or matters, or
Section 17 describes the types of decisions that the Court may make under section 16:
17(1) The powers under section 16 as respects P’s personal welfare extend in particular to —
(a) deciding where P is to live;
(b) deciding what contact, if any, P is to have with any specified persons;
(c) making an order prohibiting a named person from having contact with P;
(d) giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P;
(e) giving a direction that a person responsible for P’s health care allow a different person to take over that responsibility.
The above sections of the Act coupled with the fact that the Safeguards only make deprivation of liberty under article 5 lawful, as opposed to disproportionate interference with article 8 lawful mean that an adult who lacks capacity should only be taken into care subject to a Personal Welfare Order from the Court making the Deprivation of Liberty safeguards unusable, in isolation, from the Court Order.
How do the safeguards work in relation to the Human Rights Act, the European Convention on Human Rights, No Secrets and section 16 Mental Capacity Act 2005?
I have been working with the Safeguards and Deprivation of Liberty issues now for quite sometime.
There are 3 roles which I undertake; Independent Social Worker, Trainer and Chief Executive of a Managing Authority working with people with autistic spectrum disorder, learning disabilities and behaviour which challenges services. These roles bring me into close contact with issues around Deprivation of Liberty and the Safeguards.
I work as an Independent Social Worker providing reports on Best Interests for matters relating to capacity, residence, care and contact being decided in the Court of Protection. I have been doing this since around 2000; originally relating to common law issues decided in the High Court under its inherent jurisdiction but since 2007 of course, such matters are decided in the Court of Protection. In that time I have worked in several cases where Deprivation of Liberty has been an issue.
Through my training and work in the Courts I have started to become increasingly uncomfortable about how the safeguards can be used effectively and lawfully. Sometime ago I attended a seminar arranged by the Legal Action Group in London. This was prior to the implementation of the safeguards. At that seminar Justice James Munby told the group present, what I understand to be, that he felt the safeguards were not really needed as, through the Inherent Jurisdiction of the High Court and now the Court of Protection, a methodology and framework had developed that would allow matters of Deprivation of Liberty to be dealt with by the Courts. This statement had really set me thinking and I have followed matters with a keen interest since then.
At the time of that statement I felt that Justice Munby perhaps had no real knowledge of the amount of people actually deprived of their liberty across the country. From a social work practice base and from my training courses I was well aware that there was, and is, a vast underbelly of complex cases, where people are deprived of their liberty, that were, and still are, getting nowhere near the Courts. I felt that I could see the thinking behind creating a system where “basic” cases could be sorted out without recourse to the Courts. I realise today that those comments were perhaps related to the number of none “basic” cases that schedule A1 (the Deprivation of Liberty Safeguards) does not get to the heart of. The safeguards, in my opinion, may only be used to resolve the most basic of cases.
So why do I think this and what distinguishes a basic case from a complex case?
The definition of what is and what is not a deprivation of liberty is still very vague. The leading case law, at the time of writing, is still Justice Munby’s ruling in the case of DE and JE versus Surrey County Council. The DoLs Code of Practice also cites HL v UK and LLBC v TG, but each has its own specific issues that seem to cloud the matter. I have a feeling that there are many red herrings that arise from these latter cases. Firstly TG; most of the ruling is taken up with the lawfulness of a “Without Notification” application to the Court. There is no concentration on the Deprivation of Liberty issue and Justice Macfarlane limits himself to a very short ruling in relation to the actual issue of “was it a deprivation of liberty?” We really get to know very little from the ruling about TG, his need and circumstances – unlike Munby J’s ruling on DE. It is almost as if the deprivation of liberty is a peripheral issue. All we really have is what follows and is included in the Code of Practice:
• The care home was an ordinary care home where only ordinary restrictions of liberty applied.
• The family were able to visit TG on a largely unrestricted basis and were entitled to take him out from the home for outings.
• TG was personally compliant and expressed himself as happy in the care home. He had lived in a local authority care home for over three years and was objectively content with his situation there.
• There was no occasion where TG was objectively deprived of his liberty.
The judge said:
‘Whilst I agree that the circumstances of the present case may be near the borderline between mere restrictions of liberty and Article 5 detention, I have come to the conclusion that, looked at as a whole and having regard to all the relevant circumstances, the placement of TG in Towerbridge falls short of engaging Article 5.’
The reason I am interested in Macfarlane J’s ruling on TG is that he described the matter as “borderline”. Logic therefore tells me that anything that is borderline is very close to being a deprivation of liberty and it would not take very much to take it over that borderline. We have to remember the basics, from HL v UK in the European Court of Human Rights:-
‘to determine whether there has been a deprivation of liberty, the starting-point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance.’
In many ways this statement has served to cloud the issue for many. Whilst it is no doubt the leading statement on the matter and one which I respect, it does set us on a course that creates, in my opinion, masses of needless bureaucracy at a time when the country can least afford it. The ruling on TG, in my opinion as I have no evidence from the text of the ruling to support it, is that the Judge believed that the “degree and intensity” was not sufficient, although close, enough to say that this was a deprivation and not a restriction. Further, the third of the bullet points, which is the one that appears to look at degree and intensity, is extremely worrying in so much as it suggests that if a service user or patient is happy and compliant, then a deprivation of liberty is less likely to take place. Apart from the methods used to get HL to the assessment and treatment unit; he would appear to have been happy and compliant whilst he was there – these two cases are fairly contradictory, but of course we are lead to the “specific situation of the individual”.
The case of DE leads us more to believe that in circumstances where professionals take the important decisions – such as where a person lives, whether they can leave, and whether they can be with their wife – a deprivation of liberty is more likely to have taken place. We see from Munby J’s extensive ruling that DE was not objectively content.
I have looked at the ruling in TG and created a simple “box tool” to help me decide whether a deprivation of liberty is taking place. I have to say; however, that I am cautious about the tool simply because of the issue of whether a person is happy or objectively content muddying the waters. Some people are not content, they are institutionalised. Others are compliant simply because they are clinically depressed in old age. Never as a direct result of old age; more likely as a result of the immense social and physical losses that accompany old age for so many who find themselves in care homes. We have heard the term, “pleasantly confused” many times, never as a clinical description I hope, but more a descriptive term used by carers. If we are to take Macfarlane’s ruling and run with it we would have to distinguish between those people with dementia who are “happy” and those who are not and this could be the deciding factor. I feel this would be dangerous.
The “ box tool” below takes the ruling in TG and separates out four distinct elements. It places Macfarlane’s statements about TG below the borderline and looks for a converse statement and places that above the borderline:
Macfarlane sees a person; TG, who lacks capacity to decide where he lives and upon his care and treatment as not being deprived of his liberty. It is almost certain that the carers at the Towerbridge residential home would not have allowed TG to leave; in any case, he was there by Court Order. So we see a person who lacks capacity and is not free to leave as not being deprived of his liberty. To create the box tool I had to look at the difference between TG and DE; the latter clearly being above the borderline and deprived of his liberty. If we look at the issue of “intensity and degree” then we have consider that TG was below the line due to there being no identifiable “impact” of the restrictions in place. Conversely DE is above the line in this box as there was a clear and identifiable impact; he was distressed about not being able to go home most of the time he was in the care setting.
The next box is perhaps easier to consider. TG was in an ordinary care home; however, so was DE. It is therefore clear that the particular setting does not make a difference over all; however, it might if we were considering the converse; a specialist care home. To provide the converse statement here I feel that had TG been happy and objectively compliant, yet in a specialist care home, MacFarlane may have taken a different view – given that he needed to draw attention in such a limited ruling on the “ordinariness” of the setting. It must have been a factor.
To put the term “specialist care home” as the converse to “ordinary care home” seemed logical. So what is a specialist care home? To me, it is one where the Statement of Purpose declares it as providing specialist care to people with cognitive impairments or mental illness; where there must always be staff on duty professionally qualified to work with people with cognitive impairments or mental illness, where the environment may have key features designed to prevent the general population of the care home leaving; one where staff may also be specifically trained in physical interventions. In my view, had TG been in a care home with the aforementioned characteristics, MacFarlane would probably have considered that the case crossed the borderline and he was deprived of his liberty.
When we look at what “ordinary restrictions of liberty” might be, I tend to think of those that are the natural consequences of sharing living space and communal areas with several other people. These types of restrictions will most likely be those that occur almost naturally in a residential care home, a hospital, or even a hotel. These might be set meal times, limited menu choice, not having a personal telephone but using a pay phone, and some limitations on visiting. Conversely, there may be specific restrictions on the individual and to define these I look to another paragraph from the European Court’s ruling on HL v UK:
“the key factor in the present case [is] that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements” and “the applicant was under continuous supervision and control and was not free to leave”
The two important factors in respect of this element of the box tool are highlighted in blue above as we are not concerned here with “not free to leave”. Generally speaking many staff attending training from care setting such as EMI, or EMD residential care homes and care settings, such as our own that work with people whose behaviour is described as challenging, agree that the primary reason the service users are living with their care is because their care and movements needs complete and effective control and continuous supervision. Nobody has ever said that continuous supervision had to be 1:1 staffing levels or higher but that is a good indicator of continuous supervision. In EMI nursing homes with staffing levels at around 1:6 staff would have a great deal of explaining to do if they were not continuously supervising their residents throughout the time they are awake. In our own care settings we have extremely high staffing levels and very thorough active support protocols that do both supervise continuously control behaviour; hopefully completely and effectively.
One might argue that if a service user is in a specialist care home as defined above, they will almost certainly have individual specific restrictions at the level I have described; so why have two boxes? The reason is that it is possible to apply such restrictions in ordinary care settings.
The final box is the one I do not like – it is the TG box! It may be disrespectful to call it the “MacFarlane ruling box” but in many respects that is what it is. How does one measure “objectively content”? To do so we must be very careful to understand institutions, institutional behaviour, and that older people in particular, are not simply depressed because they are old. I have to leave it in the tool for now because of the current state of case law but as soon as I can I would like to address this issue and remove it. I have a very strong belief that a person is deprived of their liberty if they are not free to leave if they made a meaningful attempt to do so and if they lack capacity to decide where they should live and on their care and treatment that the Mental Capacity Act with its amendments applies.
To me, if there are any elements in the specific situation of the individual that take us into the top four boxes; any of them and just one of them, then there is almost certainly going to be a need to apply the safeguards and to have the deprivation of liberty authorised.
The first question I asked was about how much use are the safeguards? I have mentioned that I believe they can only really be of significant use in straightforward or basic cases. This is due to the impact of the Human Rights Act and the European Convention on a person’s situation and what can be done through the safeguards alone. Note the following from the Code of Practice where the safeguards are described:
What are the deprivation of liberty safeguards?
1 .1 The deprivation of liberty safeguards provide legal protection for those vulnerable people who are, or may become, deprived of their liberty within the meaning of Article 5 of the ECHR in a hospital or care home, whether placed under public or private arrangements.
The European convention rights also include article 8 which refers to the right to respect for private and family life as well as article 5 regarding deprivation of liberty. It is clear that article 8 human rights cannot be interfered with disproportionately when using the Mental Capacity Act to deprive a person of their liberty. The type of situation where the safeguards can be used is therefore limited to those that only involve a potential infringement of article 5 rights. This is the type of situation where everybody involved with person, including close relatives, partners and friends agrees that the deprivation of liberty is in the person’s best interests.
In situations involving the safeguarding of vulnerable adults where the action intended by those safeguarding the person is intended to remove them from their home and family, partners or friends against the wishes of those concerned then a Personal Welfare Order will be needed from the Court of Protection. This is because such an act will interfere with article 8 rights and the safeguarding authority needs the Court to determine whether such an act will be lawful as per s15 and s16 Mental Capacity Act 2005:
15(1) The court may make declarations as to —
(a) whether a person has or lacks capacity to make a decision specified in the declaration;
(b) whether a person has or lacks capacity to make decisions on such matters as are described in the declaration;
(c) the lawfulness or otherwise of any act done, or yet to be done, in relation to that person.
(2) “Act” includes an omission and a course of conduct.
Section 16 of the Act gives the Court powers to make decisions on behalf of a person:
16(1) This section applies if a person (“P”) lacks capacity in relation to a matter or matters concerning —
(a) P’s personal welfare, or
(b) P’s property and affairs.
(2) The court may —
(a) by making an order, make the decision or decisions on P’s behalf in relation to the matter or matters, or
Section 17 describes the types of decisions that the Court may make under section 16:
17(1) The powers under section 16 as respects P’s personal welfare extend in particular to —
(a) deciding where P is to live;
(b) deciding what contact, if any, P is to have with any specified persons;
(c) making an order prohibiting a named person from having contact with P;
(d) giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P;
(e) giving a direction that a person responsible for P’s health care allow a different person to take over that responsibility.
The above sections of the Act coupled with the fact that the Safeguards only make deprivation of liberty under article 5 lawful, as opposed to disproportionate interference with article 8 lawful mean that an adult who lacks capacity should only be taken into care subject to a Personal Welfare Order from the Court making the Deprivation of Liberty safeguards unusable, in isolation, from the Court Order.
Chris Wall – Independent Social Worker
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9 Comments
I would argue that where people feel vulnerable to the control of others there is a universal human reaction which would include (to use colloquialisms) keeping your head down, not upsetting those in charge, making the best of a bad job, trying to ‘make friends’ with people in control, trying to be higher in the pecking order than others who are vulnerable, using humour to diffuse anger, keeping anger under control, and developing a camaraderie with peers. From the outside a person employing some or all of these tactics may well appear to be objectively happy. Someone who reacts with anger and consistently objects (as in the case of JE and DE) I would suggest is quite unusual.
Prior to the MCA, I worked with a client who was under Guardianship in a Care Home and who was also not free to leave. Arguably she lacked capacity to decide where she lived and her care arrangements (but all the same was v articulate). She consistently confided in me that she did not want to be there, and explained to me how she used some of the above tactics to get by. However, the Care Home staff and others involved were convinced that she was happy, and when I supported her to raise concerns they thought that I was the problem for stirring things up! Another client I worked with more recently was highly complimentary about the Care Home where he lived and appeared happy – always smiling and friendly, but then described the Home as a ‘posh prison’.
As an advocate I have worked with many people who seemed to the staff to be objectively happy, but who would often tell me in confidence that they were not, but quite often didn’t want to make this know for fear of repercussions. My favourite quote of all time came from a patient detained under the Mental Health Act who was not happy with the role of the social worker in detaining him . He described all ASWs (now AMHPs) as ‘Sate-sponsored terrorists on the NHS.’ Yet you couldn’t have met a more jovial good-humoured personable inpatient – no doubt considered by staff to be ‘objectively happy’!
I would be very interested to read your thoughts on “objectively content” and what you feel could replace this with if you did, indeed, remove it from the tool?
I agree that perceived happiness does appear to play a part in whether a person is deemed to be deprived of their liberty. I do not agree; however, that is should be. If we make a comparison with the Mental Health Act we find a much more objective criteria. If a person is to be taken compulsorily to a hospital where they will be detained and treated under the MHA they are clearly deprived of their liberty for the purposes of the treatment – whether they have an appearance of happiness, or are objectively content would have nothing to do with the matter.
If in the above example the person is able to consent to the treatment and the admission then they would not be deprived of their liberty; they would be there informally. Consent is therefore an issue. To me it is all about “consent” and in the absence of consent (perhaps through mental incapacity) admitting and keeping a person somewhere in order to treat them or care for them. In my opinion, nothing else should matter.
Basically I would not replace the fourth box in the tool – I would just lose it, as I would alter the first box and only have it above the line; effectively I would only have a criteria that if a person lacks the capacity to consent to being in a place, is there for care or treatment and is not free to leave that place they are deprived of their liberty.
Even if there is some doubt about whether the above would meet a Court’s definition of Deptivation of Liberty; surely people detained in care homes and hospitals for the purposes of being given treatment or care should have some built in safeguards outside of the commissioning process. I do stress; however, that such safeguards need not be as unecessarily bureacratic as the process that we now have.
I share your concern about DOLS as an effective measure. How can such laborious, bureacratic time consuming and confusing measures be an effective tool to deal with physical containment and constraint let alone the true assessment of “contentment” or “objective happiness”? Perhaps the DOLS’ legacy will be to raise the difficulty of legally defining what liberty, dignity and protection truely mean to the most vulnerable in our society?
In my opinion any admission into care of a person who lacks capacity has the potential to interfere with article 8 ECHR; however, such an admission would normally be deemed to be a proportionate response to the need to care for or treat the person whose capacity is such that they cannot consent to the treatment or care. In effect, I do not believe this porportionality would breach the convention rights. Article 5(4) allows us to also take a proportionate response to the detention of a person with mental disorder for treatment and care as long as this is through a procedure prescribed by law. The DoL Safeguards give us this procedure so a basic, or straightforward admission with the agreement and involvement of those caring for or interested in the person’s welfare should be fine.
The difficulty and potential breaches come when the interference with article 8 rights becomes potentially disproportionate – this will be where families and/or friends totally disagree with the removal of a person to a care setting. Usually such situations will be found in relation to safeguarding and the need to “take an adult into care.” Further, normal visiting times would be expected to not disproportionately interfere with article 8 rights; however, limited and supervised contact almost certainly has the potential to do this and hence the need to get orders from the Court of Protection to ensure that the act we are about to do (taking the person into care) is lawful and also have the Court declare the person’s best interests in respect of care, treatment, contact and residence.
We have to remember that in the first place our safeguarding duties relate, in the main, to the protection and conservation of the vulnerable person’s article 8 rights and safeguarding them from the interference of those rights by others – often, but not exclusively, families. When we instigate taking a person into care families would argue that we are interferring with their human rights – whilst we argue we are prtoecting their relative’s.
I do not think that we need trouble ourselves within the DoLs process to start to interpret what is and what is not family life. The simple rule of thumb would perhaps be that once families raise significant objections to our actions around residence or contact then we need to be considering the need for a Court Order. Clearly, we would all do our best to resolve matters outside of Court but when drastic action is required under safeguarding this is often not possible. There are parallels in Child Protection and the need for Court Orders and there is much we can learn from those.
I totally agree with your comments in your last paragraph and apart from the feeling of drowning in this ridiculously bureacratic process it is the definition of deprivation of liberty that is casuing the most difficulties. Please see my response to Stuart Pountley above regarding definitions. It surely should not have been beyond the wit of legislators to set a criteria that is low enough to ensure that all of the vulnerable are protected without putting alongside it an unecessary bureacracy that nobody can effectively use.
A simple safeguarding system independent of commissioning to support a lower threshold definition is what is required. We have what we have; however, and I doubt that the legislation will change. The bureacracy needs to and we should be careful to note what is in statute and what is advisory from the DH. As long as we meet statute and regulation then surely we can set about working on something less bureacratic that will better safeguard people because everyone can understand it and is not put off using it due to the weight and intensity of it.
The questions I have are;
What training is available across the country?
Is the training the same across each county/ country?
After the training do Best interest assessors have clinical supervision with their peers from other authorities?
Is there follow up training available?
What tools are given for the assessment process?
Kind Regards
Cleo Roberts
I am a Social Worker, and I work for an independent care provider rather than a Local Authority. My position has afforded me a valuable viewpoint, and I would like to highlight what, from my professional experience of making applications for Standard and Urgent authorisations of Deprivation of Liberty, has become a very important gap in the legislation as it is currently written. Simply, that there appears to be no clear course of action for a care provider to take if that provider disagrees with the decision made by the Local Authority.
In other words, if the care provider makes an application, believing that a person they provide support to is deprived of their liberty, and the Supervisory Body subsequently declines the application on the grounds that the person is not deprived of their liberty, there is simply no provision within the Act, for that care provider to challenge the Supervisory Body’s decision, short of making an application to the Court of Protection.
I believe that this undermines the professionalism of care providers. It is disempowering to care providers. I am a qualified, registered social worker; I therefore have a responsibility to my regulatory body and most importantly to the people I work with, to understand this law. And I am employed by a provider, a Managing Authority.
I find that the legislation is fundamentally flawed because all of the decision-making power lies with the Supervisory Body; the Act assumes, therefore, that the care provider must have insufficient understanding of the law and must accept the Supervisory Body’s decision without question.
To conclude, I think that some provision for Managing Authorities to formally disagree with Supervisory Body’s decision, must be added to the Deprivation of Liberty Safeguards.
This leads on to the question of 1-to-1staffing. I think there’s a very big cultural difficulty in that care providers describe this as “support” and assume that very close “support” can’t amount to deprivation – indeed they would argue the contrary, that it avoids use of physical or chemical restraints and enables the person to exercise as much freedom as possible. That may well be the case, but “support” is a euphemism which describes what the staff think they’re doing rather than what an objective outsider would perceive them as doing. An outsider (such as a judge) would describe it as “supervision”, and as Chris says, 1-to-1 supervision then raises the possibility of deprivation as per the HL definition.
The question of the person’s own perception then becomes important – do they feel that they are being supported or supervised ? If I had to have a minder following me around all day at arm’s length I would almost certainly feel the latter (and would probably thump them and end up with two minders !)
One of the things that’s becoming apparent nationally is that there are huge variations in the way in which deprivation of liberty is being defined, which have inevitably led to huge variations in application rates. I suspect that these variations probably reflect differences in teaching on BIA courses, which then affect the perceptions of everybody in a particular area because the BIAs are virtually the only people (apart from IMCAs) who’ve had any training at all. However, even if training could be centralised and standardised as Cleo suggests, I don’t think it would make much difference whilst the Code remains the official “definition”, as its guidance is so vague, tentative and open-ended that it’s bound to result in interpretations which are all over the place. In training I virtually ignore the Code and instead base my presentation around the two lists of factors in Richard Jones’s Mental Capacity Act Manual (now updated in the 12th edition of his Mental Health Act Manual); people find these much easier to relate to their practice, and I’m sure they would result in much more consistency, but the Code is the document which people must “have regard to” and any judgement based on it is therefore legally defensible even if somebody down the road interprets it in a totally different way.
Re Article 8, I follow Chris’s argument, but I can’t see any support for it in current caselaw – rather the contrary, in fact, as several cases, and in particular HL and JE/DE, were brought by close relatives/carers who wanted the person to be returned to live with them, but in no case did the court distinguish Article 8 from Article 5 issues. The DoLS scheme is based very closely (perhaps too closely) on the HL case, and in the absence of any judgement to the contrary can be presumed to be HRA-compliant when used to address circumstances similar to that case. Interference with the right to live where and with whom you choose is inherent in almost any deprivation of liberty, so any lawful deprivation under Article 5 must potentially interfere with an Article 8 right also, and deprivation under DoLS is expressly limited to situations where it is a proportionate response to the likelihood and seriousness of harm.
However, notwithstanding that I think there are very strong arguments for going to the Court of Protection rather than using DoLS (or guardianship + displacement) where the main issue is a disagreement with close family or carers. The CoP is an inherently suitable forum for resolving these issues in a constructive way, whereas displacement involves proving that the Nearest Relative is either “unsuitable” or “unreasonable” and DoLS allows the relatives only as much say as the BIA chooses to give them – and I’m already hearing reports of “awkward” relatives being passed over for appointment as representatives, hence denying them an automatic right to appeal to the CoP (and to access the non-means-tested Legal Aid). I’m currently dealing with a case where a displacement action was thrown out in favour of an application to the CoP, and the local authority has now effectively conceded the relative’s point of view and the court is chasing it to make sure it provides what she’s asking for.
Finally, just to pick up on Fiona’s point about the lack of an “appeal” against a BIA’s (NOT the SB’s) decision that a situation doesn’t amount to deprivation. First of all, I’m not clear why a managing authority would want to challenge such a decision, since it gives it legal protection for doing whatever it’s doing or is proposing to do, but without all the tiresome paperwork. It’s more likely to want to appeal a decision that what it’s doing/is proposing isn’t in the person’s best interests, which is a different matter. However, if it does want to, then since a BIA is an independent quasi-judicial body, it has to go to the next judicial body up the line, which is the Court of Protection. The Court can’t review the BIA’s decision, but it can (if it gives permission) hear an application from a MA for an order allowing deprivation based on the situation as it is at the time of the application.
Alternatively, there’s no reason why a MA can’t immediately make a fresh DoLS application and invite the SB to appoint a different BIA. The SB doesn’t have to, however, and (as with the similar situation where an AMHP’s decision is challenged) it would be very bad practice for it to do so unless it has reason to believe that the BIA may have “misdirected themselves” on the law. Given the vagueness of the Code guidance, it’s inevitable that MAs and BIAs will come to different conclusions on the same facts, and indeed two BIAs within the same SB may well do so, but if they don’t conflict with the Code then all those opinions are legally valid and reasonable. I’m hearing of cases where BIAs do seem to have misdirected themselves – for instance, where they’ve refused an authorisation on the basis that the person has capacity, although the capacity assessor had already decided that they didn’t, but the SB should perhaps have spotted that and bounced the assessment without waiting for the MA to complain.