Keywords: DoLS; least restrictive; best interests decision making; duration of DoLS authorisation.
The case was brought by P’s mother (acting as his litigation friend), who was also his relevant person’s representative in respect of the standard DoLS authorisation in issue. P, a young adult with severe learning disability and autistic spectrum disorder, was placed in urgent circumstances in a Care Home which all parties agreed was not a particularly suitable placement. After one month, the care home decided that P required two-to-one staffing during the day and one-to-one at night, evidence he was sufficiently in need of care as to be under continuous supervision and control and not free to leave. After P had been residing at the care home for 11 weeks and four days the home issued an urgent DoLS authorisation covering a period of 7 days. A further three weeks and one day after the expiry of the urgent authorisation, Mr Butler (an officer of Surrey County Council acting as its Supervisory Authority) issued a standard authorisation in respect of P’s stay in the care home for a period to expire 10 months later.
A DST assessment for CHC was completed prior to the issuing of the urgent authorisation and concluded that he met the criteria. One month after the standard authorisation was issued, Surrey Downs CCG accepted that he met the criteria for CHC. However they disputed that they were the responsible commissioner.
It was not disputed that P was deprived of his liberty under the Cheshire West definition throughout his stay in the care home. Therefore P had also been unlawfully deprived of his liberty during those periods when no DoLS authorisation was in place.
The central issue in the case was whether P had been unlawfully deprived of his liberty during the period when the standard authorisation was in place. A key issue was the length of time for which the standard authorisation was issued.
The best interests assessor had consulted P’s mother and P’s advocate before making recommendations as per the DoLS structure. Both expressed the view that the care home was an unsuitable placement.
The best interests assessment concluded that the care home was the least restrictive option available only in the short term and identified a consensus that a more suitable placement with a younger client group and more specialised support would allow P to be cared for with a lower level of supervision.
P’s mother had identified a specific alternative placement which she considered more suitable and had provided this information to the best interests assessor. The local authority sought to argue that it was for P’s mother, as the relevant person’s representative, or his advocate to prove that a place was available. This argument was rejected. The local authority had a duty to investigate whether a less restrictive alternative was available and could not delegate its responsibility to the relevant person’s representative or advocate. “Being in possession of that knowledge, the obligation was on the first respondent to be proactive, and they failed in that obligation.” (para 32). Further, “it was incumbent on the best interests assessor to investigate her proposal to see whether in fact it offered a less restrictive, more suitable environment in which P could be cared for and, to the extent necessary in his best interests, to have his liberty circumscribed. The alternatives had to be considered by the supervisory body as part of its determination independent of the best interests assessor’s” (para 27).
The local authority argued that only the placement for which the authorisation was issued needed to be considered and that the only alternatives that need to be considered were those which would avoid deprivation of liberty at all. These arguments were rejected because “there are clearly questions about whether in P’s case the need for deprivation of liberty is only binary, i.e. is or is not in P’s best interests, or whether questions of degree enter into the case.” (para. 24)
In deciding on the duration for which to issue the standard authorisation, Mr. Butler had given considerable weight to limiting the need for further assessments, despite the lack of any evidence that the assessment process had caused P any distress. He should have considered and given greater weight to the suitability of the placement and the time-limited nature of that suitability (as determined by the best interests assessor). The proper decision, therefore, would have been to authorise P’s deprivation of liberty for a short period only and to request detailed information about suitable alternatives to accompany any further application in respect of P’s stay at the care home. Alternatively, he should have called for further information before granting the standard authorisation at all or for the duration in question.
“What was, in my judgment, not open to the supervisory body, was to do what it did, namely to receive uncontradicted information from three separate sources that the care home was only suitable in the short term or for a short period and then proceed to grant the standard authorisation for a substantial period, i.e. 80% of the maximum permitted duration.” (para. 19)
The supervisory body had argued that the duration for which the authorisation had been granted did not breach P’s rights because P’s condition was such that he would always need to be cared for in circumstances where he was deprived of his liberty. In rejecting this argument, the judgement makes the important point that “the deprivation of liberty authorisation relates to the circumstances in which P is deprived of his liberty, not to his condition, i.e. it is situation-specific, not person-specific. It does not authorise P’s detention in any other location, and so, on moving P to a different care facility, a fresh deprivation of liberty authorisation would have had to have been applied for.” (para.21)
The supervisory body also contended that P’s rights were not breached by the duration of the standard authorisation because it was open to P or those acting on his behalf to apply to discharge the authorisation. This approach was held to be wrong. “It is for the supervisory body to ascertain the least restrictive alternative, including the question of duration. It is not for the family to apply, although they have the opportunity to do so under the Act.” (para. 33).
Judge Cushing (applying London Borough of Hillingdon v Neary & Anor ) concluded that neither the best interests assessor nor Mr. Butler had adequately analysed the four necessary conditions. The answers in relation to both best interests and necessity should have been qualified, in that depriving P of his liberty in the circumstances of this placement was only in P’s best interests and only necessary for a short period. Taking into account the degree of deprivation of liberty experienced by P in the circumstances of the care home combined with the limited benefits to P of that less suitable placement and the potential detriment to his development and social opportunities (which is in itself a form of harm), the deprivation of liberty was not (or not for more than a short period) a proportionate response to the likelihood of P suffering harm. Ultimately Mr. Butler’s reasons for authorising P’s deprivation of liberty for 10 months “did not relate to the qualifying requirements or the least restrictive principle.” (para. 29)
By the time the case was heard, all parties agreed on a suitable autism-specific placement for P and the court issued a declaration of best interests for residence at that placement following a suitable transition process.