Deprivation of Liberty Safeguards

The amended version of the Mental Capacity Act, in the 2007 Mental Health Act, introduced a new regime for scrutinising actual deprivation of liberty (referred to as ‘DoL’ from now on), with recourse to the Court of Protection in disputed cases. The regime does not prohibit DoL, but acts as a double check that there is really no alternative means of keeping an incapacitated person safe. The safeguards are based on Human Rights Law.

The amendments also brought in an explicit NEW basis (not new in common law legal terms, but new in formal statutory terms) for depriving people of their liberty, in an emergency for their own best interests…if and only if, the person acting in this way has considered certain things first – s4B of the MCA, which all local authority and hospital safeguarding teams should already know about, and be using in their work, as part of managing care planning and safeguarding.

Essence of the law and the DoL Safeguards:

  • Human Rights law says there is a human right to liberty, but allows narrow exceptions for persons of unsound mind, so long as the exceptions are clearly provided for in law, and necessary, and a means of challenging the situation is speedily available to the person in question.
  • The DoL Safeguards walked a tightrope between delivering this guarantee, whilst avoiding costly litigation in all but the most hotly disputed cases. They provide for an almost self-regulatory system for care homes and hospitals, where the decision-makers are very often the very same public bodies with an interest in saving money, when buying care home or hospital places. Access to a court AFTER these decisions is the only truly independent element, and that costs money, for some sorts of litigant (not all).
  • The DoL safeguards were notworded so as to apply in a person’s own home, or in sheltered or supported housing… only in care homes and places that count as hospitals. Signatory states have a European Human Rights positive duty to ensure that people are not inappropriately deprived of their liberty by their own friends or family, and this means that potential deprivation in one’s own home can still be the business of the State, to probe, at least, and to bring to court, if not convinced it’s only restriction of liberty.

What should be happening in unjustified cases of DoL?

Since the inception of the system, there have been plenty of recorded instances of cases where a person had been found to be deprived of their liberty under the process, but no authorisation resulted. In other words, one of the assessors had not recommended an authorisation – and if it was the BIA, it would have been because in their view it could not be seen as being in that individual’s best interests, because a less restrictive option was or could have been made available.

The government’s response to this is as follows:

“The Code says that the best interests assessor’s report should aim to be as useful as possible to the commissioners and providers of care in deciding on future action (for example, recommending an alternative approach to treatment or care in which deprivation of liberty could be avoided). It may be helpful for the best interests assessor to discuss the possibility of any such alternatives with the providers of care during the assessment process.”

“The DH does not know whether this occurred in each of the [125] recorded cases but the Code advises that it should have been done. A number of local authorities have “alerts” in their policies and procedures to ensure that action is taken swiftly to end what is otherwise now an unlawful deprivation of liberty as swiftly as possible. It is recommended that all managing authorities and supervisory bodies have a mechanism that permits the swiftest possible response to these circumstances”.

What was the point of the DoL Safeguards?

The deprivation of liberty safeguards addressed the October 2004 ECtHR judgment in HL –v- UK (the Bournewood judgment). This case was about a fairly incapacitated man, taken to hospital as a voluntary patient, in a crisis, but who was kept there for over 6 months and whose carers were kept away by the staff.

European Human Rights law on article 5:

– Requires signatories to abide by the principle that people of unsound mind may only be deprived of their liberty through a process set out in law that is accessible to people

– Requires procedural safeguards to prevent arbitrary detention and speedy access to a Court to review the detention

The Strasbourg court’s decision found Mr L to have been detained, in legal terms, in breach of his human rights, because of the absence of a clear legal process or safeguards. The Safeguards cover England and Wales (separate Regulations exist for Wales).

 

Who is covered by the DoL provisions of the Act?

These special provisions relate to people 18 or over in England and Wales who meet the relevant criteria: they must

  • Have a mental disorder such (as defined by Sec 1 of the MHA 1983 ie a disorder or disability of the mind
  • Lack the capacity to give their consent to the plans made for their care;

and

  • Must [in legal terms, given the facts] be deprived of their liberty within the meaning of Article 5 of the convention, despite not warranting detention under the MHA 1983 and thus deserving to be sectioned formally;
  • Only if the person is a patient in a hospital or an adults’ care home registered with CQC (nb whether placed under public or private arrangements)

 

Such people are largely those with significant learning disabilities, elderly people suffering from dementia and some others, e.g. someone suffering from a physical injury such as a brain injury.

Pros and cons of the DoLS system

  • There had to be a legislative solution to respond to the Bournewood European Court judgment – the country can’t afford court cases every time someone is cared for like this!
  • The safeguards were thought to be most appropriately set in the Mental Capacity Act as the issues raised in Bournewood were primarily mental capacity management issues rather than mental health treatment issues – e.g. the well-being of dementia and LD patients.
  • The scheme avoided the need to extend the frequency of sectioning people under the Mental Health Act which was heavily opposed during the consultation
  • The core principles of Mental Capacity Act which include supporting a person to make their own decisions whenever possible, acting in their best interests and in the least restrictive manner, would apply in the context of these safeguards.

But

  • The Safeguards put staff, acting as Best Interests assessors, in a difficult position – supposedly independent but largely employed in other roles at the same time by – often – the very same council purchasing the care that has amounted to DoL….in the first place, after supposedly principled care planning and purchasing of care arrangements;
  • And the very organisations that have to start off the process (Managing Authorities) are those (care homes) who depend on – often – the decision-making body’s purchasing decision, for improving their services to enable their staff to be less restrictive.
  • The distinction between restriction and deprivation of liberty can only be made clearer by case law, which is taking time and is a bit of a lottery…
  • The eligibility criterion about people who are disordered enough to be sectionable, but who are not being sectioned, requires surreal feats of gymnastic analysis to reach the correct outcome.

 

Let’s go back to restraint, first of all – what is it?

If you think back to the cloak of legal protection under s5 of the Act, that general legal shield can apply to restrictions of liberty and even restraint, but only applies to acts intended to restrain the person in question, if two further conditions are satisfied, on top of believing it to be in the best interests of a person:

– The restrainer must reasonably believe it is necessary to do it in order to prevent harm to the person in question

– The act done is – objectively speaking – proportionate to the likelihood of the person suffering harm, and the seriousness of the harm.

In other words, if restraint is necessary and proportionate, it’s legal, and even – in some situations, the only right thing to arrange to do…

 

A mere restriction of liberty is different from a deprivation of liberty.

The Act says that restraint is something involving the use of force or the threat of the use of force to secure the doing of an act which the person is resisting (i.e. ambulance staff suggesting that they will lift the incapacitated person’s chair into the ambulance, the GP saying that s/he will sedate the person to get them to hospital, etc)

Also something that restricts the person’s liberty of movement, whether or not they resist.

The ECtHR judgement in the HL v United Kingdom case did not define what was meant by “deprivation of liberty” but it said as follows:

“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”

  • account must be taken of the cumulative effect of the various restrictions
  • the purpose of any measures of restriction is a relevant consideration (i.e. whether it was for the interests of the individual or the public – it is more likely to count as deprivationof liberty, if it was for the public interest).

 

To put this ambiguity into context, the Government-produced guidance on the safeguards starts out with the suggestion that the mere fact of a locked door does not mean that the incapacitated person is deprived of their liberty….! That will tend to surprise people, it is thought – a lock is a lock and its purpose is to stop people getting past it; but the point is that most of us lock our doors to stop people getting in, not out; and of course, if there is a serious risk on literally the other side of the door, then it is not being done in order to stop the person getting out, but to protect the person from their own lack of insight. This clarity breaks down, though, once one starts to consider the position for people in group settings, who will all have different levels of capacity to deal with the risk, and also where the risk on the other side of the door is only unmanageable because of the lack of staffing…

 

Factors that tend to point one way or the other, or which add up…

  • Restraint was used, including sedation, to admit a person who was resisting at the time
  • Staff are exercising complete and effective control over a person’s care and movement for a significant period
  • Professionals are exercising complete control over assessments, treatments, contacts and residence arrangements
  • A person would be prevented from leaving the place if they made a meaningful attempt to do so
  • A request by carers for the person to be discharged from their care is being refused
  • A person is unable to maintain social contacts because of restrictions placed on access to other people
  • A person has lost much autonomy because they are under continuous supervision and control

 

How the amendments have changed the legislative structure concerning restraint

Originally, under the Act as it was first drafted, s6 (5) confirmed that there would be no s5 legal protection under the Act for actions that resulted in someone being deprived of their liberty. When the amendments came in, this was changed, so as to reflect that it will be lawful, if authorised by a DoLS process, or in any situation where it is vital.

The No Refusals criterion which makes someone ineligible for DoL Safeguards based detention, if someone with welfare decision making powers positively refuses consent, does not talk about any need for such person’s actual consent. Under the original Act, neither LPAs nor deputies with welfare powers had any guarantee of legal protection if they went beyond restraint and into deprivation of liberty. The provisions that stated that they had no special power of consent to DOL were removed from the legislation, but no-one is prepared to say that this amendment means that they CAN now formally consent in place of the client, to being, effectively, deprived of their liberty. If that were the case it would mean that it was not only the court that could say yes, and that would still breach the European Human Rights approach to it being LAW that determines this, not human beings.

 

The amendments to the Act – new section 4B

S4B Deprivation of liberty necessary for life-sustaining treatment etc

(1) If the following conditions are met, D is authorised to deprive P of his liberty while a decision as respects any relevant issue is sought from the court.

[note it does not say by whom, so this is not actually an enforceable duty on anyone to apply by a certain time, or anything more explicit]

(2) The first condition is that there is a question about whether D is authorised to deprive P of his liberty under section 4A.

(3) The second condition is that the deprivation of liberty—

(a) is wholly or partly for the purpose of—

(i) giving P life-sustaining treatment, or

(ii) doing any vital act, or

 

(b) consists wholly or partly of—

(i) giving P life-sustaining treatment, or

(ii) doing any vital act.

(4) The third condition is that the deprivation of liberty is necessary in order to—

(a) give the life-sustaining treatment, or

(b) do the vital act.

 

(5) A vital act is any act which the person doing it reasonably believes to be necessary to prevent a serious deterioration in P’s condition.

 

What you must evidence before using s4B

The relevant test is framed in ordinary English words that introduce elements of degree and judgment by reference to the relevant circumstances. Accordingly whether the test is satisfied, with the result that the protection and authorisation given by s. 4B applies, is a fact-sensitive issue, which the court will go into, when asked.

You can’t use this power to deprive someone of their liberty, retrospectively, if

  1. i) the evidence shows that (a) the section, itself, and (b) the tests it contains were not considered by the relevant decision-makers at the time,
  2. ii) the evidence is not directed to, and does not indicate, whether the best interests reasoning of the relevant decision-makers in fact encompassed the test set by s. 4B, namely whether the deprivation of the person’s liberty was in their view necessary to prevent a serious deterioration in her condition,and consequently that

iii) the evidence was not directed to whether that belief was, or would have been, reasonably held by the relevant persons.

 

When a council tried to rely retrospectively on this power, in a real case – the judge said this, somewhat incredulously:

“Observation and opinions made and expressed both before and after the deprivation of liberty that might have led the relevant decision makers to believe that the test set by s. 4B was satisfied are of no use, because

  1. i) they do not show or establish that this is what the relevant persons believed and/or that in reaching their conclusions their reasoning included that belief (albeit that they did not address it expressly), and
  2. ii) they do not enable the court to properly evaluate the reasonableness of the belief by reference, for example, to the impact on the person’s condition of (a) a move back home (whether or not followed shortly by another move to residential care) or (b) the lifting of a deprivation of liberty at the Residential Home, and thus whether it was (or would have been) reasonable to believe that such changes would result (or be likely to result) in a serious deterioration of the person’s mental or physical health and functioning because of the change in placement, the person’s wandering away from home or how the person would be treated at home.”

 

The DoLS system in very brief detail

  • The care home or hospital applies for an authorisation (these organisations are called the managing authority…)
  • The Supervisory Authority takes a view on whether DoL is even arguably happening, in legal terms, via a look at the papers or a visit by the BIA.
  • If there is any chance that it is, in their view, they send out appointed people to do 6 assessments – Age, Mental Disorder, Incapacity, Eligibility, No Refusals and Best Interests.
  • The six assessments have to be done by a minimum of 2 different people between them, because of the rules as to qualifications for the role.
  • All 6 assessments must all come to a positive conclusion to justify an ongoing authorisation.
  • The supervisory authority must give a standard authorisation if all assessments are positive – it has no choice or discretion.
  • But it must decide the duration for DoL – it must not exceed the maximum authorisation period stated in the best interests assessment or 1 year in any event
  • It can be subject to conditions – again the BIA makes the recommendations as to these and has a virtual power to insist on conditions they want to see in place.
  • They must give a copy to the relevant person’s representative, the managing authority, relevant person, IMCA, every person consulted by best interests assessor
  • If the authorisation is refused the supervision body must give notice to all interested parties and the regime must change by agreement, or by removal of the person from the detention.

 

Mandatory Best Interests considerations for Best Interests Assessors

Para 39 of Schedule A1 on DoL:

(1) In carrying out a best interests assessment, the assessor must comply with the duties in sub-paragraphs (2) and (3).

(2) The assessor must consult the managing authority of the relevant hospital or care home.

(3) The assessor must have regard to all of the following—

(a) the conclusions which the mental health assessor has notified to the best interests assessor in accordance with paragraph 36 (b) any relevant needs assessment;

(c) any relevant care plan.

Best interests assessors must be familiar with Section 4 of the Mental Capacity Act 2005 which sets out the best interests principles.

Chapter 5 of the general Code talks about “best interests” and includes a checklist of factors that need to be taken into account. These principles and guidance apply equally to working out a person’s best interests for the purpose of the DOL safeguards

Additional factors apply for DOL Safeguards processes, including consideration of

  • Whether any harm to the person could arise if the DOL does not take place
  • How likely that harm is to arise
  • What other care options there are which could avoid deprivation of liberty, and
  • If deprivation of liberty is currently unavoidable, what action could be taken to avoid it in the future

 

Special rights of access to ‘Advocates’ for unbefriended incapacitated people facing DoL

The Safeguards provide three circumstances when an IMCA must be appointed (in addition to the ordinary circumstances under the original MCA).

  • Section 39A IMCA – when the Managing Authority flags up the absence of any interested party at the application stage (eg suppose DoL was being proposed in a hospital, for something that was not serious medical treatment, or a private person is arranging for care in a care home but seems badly intentioned….)
  • Section 39C IMCA – when a post-authorisation appointed Representative drops out of the picture, until a new one is appointed
  • Section 39D IMCA – when a non-professional Representative asks for and seems to need help to discharge the role

 

The guidance says that where significant disagreement arises between an IMCA and an assessor(s) that cannot be resolved the supervisory body should be informed before the assessment is finalised, but that is all. The supervisory body may convene a meeting to discuss the matter. If this fails to resolve the issue, the IMCA can make an application to the Court of Protection should they consider it necessary. They are now told by case law that they should ask the BIA to recommend that it be made a condition of the authorisation that the council applies to the Court, proactively, as a genuinely unresolved and principled dispute should not just be regarded as settled by the mere fact of an authorization.

 

The IMCA’s job is to

  • Provide support to the person so that they may participate as fully as possible
  • Obtain and evaluate relevant information
  • Ascertain likely wishes and feelings, values and beliefs of the person likely to influence him or her if they had capacity
  • Ascertain any alternative courses of action available in relation to the person
  • Obtain a further medical opinion where treatment is proposed and the IMCA thinks that one should be obtained
  • Challenge or provide assistance in challenging any relevant decision.

 

What can the Court decide?

After an authorisation has been granted, the court may determine the following questions

(a) whether the relevant person meets one or more of the qualifying requirements;

(b) whether an urgent authorisation should have been given;

(c) the period during which the standard authorisation is to be in force;

(d) the purpose for which the standard authorisation is given;

(e) the conditions subject to which the standard authorisation is given.

 

If the court determines any of the previous questions the court may make an order—

(a) varying or terminating the standard authorisation, or

(b) directing the supervisory body to vary or terminate the standard authorisation.

 

Where the court makes either of the above orders, the court may make an order about a person’s liability for any act done in connection with the standard or urgent authorisation before its variation or termination. An order may, in particular, exclude a person from liability.

 

DoLS impact (in theory only – as all stakeholders would have to be aware of the rules and following them for these predictions to come true!)

  • Assessment: staff would have to specifically focus on incapacity and risk in relation to wandering and self-harm, in order to assess needs properly. In clear-cut DoL cases, the arrangements for (eg hospital discharge) will have to be coincide with a DoLS ‘urgent’ process.
  • Care planning: public bodies would have to acknowledge, at the planning stage, whether deprivation of liberty is required – they have a duty to plan for appropriatecare, and that means reasonably safe care, and lawful care.
  • Resource issues: If no certificate is granted, where is the additional expense going to fall – on purchasers, because less restrictive care tends to cost more? or on the providers – because they have to go on caring lawfully, if they are going to continue? Then again, they can give notice, but the public sector has a statutory duty to care….The guidance indicates that ultimately, the cost has to fall on the purchaser….
  • Safeguarding and abuse cases: relatives may contend that necessity is the reason for imprisoning their loved one in an own home setting, and LAs will have to respond, without any DoLS teeth – going to court will be the only response – and recent case law shows that this can lead to criticism and costs. Strict supervision in the home could be treated – in general – as protective restriction, not deprivation of liberty.

NB A bit of a fudge is happening there, though, because of the case law on normalised and benign care not amounting to Deprivation of Liberty in the first place!

 

Impact on contractors, providers and the regulator

  • Contracting: commissioners would openly be purchasing a level of care that involves providers in the deprivation of liberty safeguards.
  • PCTs would have to consider whether a need for DoL triggers continuing health care entitlement (free NHS continuing care based on Priority levels in England, regarding behavior, in the ‘decision support tool’.)
  • Providers will have to come forward and acknowledge deprivation of liberty even where the purchaser is a private person (i.e. someone’s son or daughter) and does not see why it is anyone else’s business.
  • Providers and commissioners will have to work out whether expenditure on alarms, bleeps, sensors and monitoring equipment, plus the staff to react to the bleeps when they go off, are worth it, in terms of reducing the number of people who would otherwise have to be put through the safeguards. The guidance says this: “Supervisory bodies and other commissioners of care will need to purchase care packages in a way that makes it possible for managing authorities to comply with the outcome of the deprivation of liberty safeguards assessment process when a request for a standard authorisation is turned down”
  • Monitoring: CQC will have to treat a provider’s attitude to deprivation of liberty as an aspect of fitness for the role; and a home’s equipment and ironmongery as relevant to whether deprivation of liberty is going on, in any given registered setting.
  • CQC will also also have to address whether regimes in supported living and extra care settings amount to deprivation of liberty, and take that up with the providers if so.

 

Consequences of all this activity under DoLS

Governance, risk management and safeguarding staff in Trusts and Councils, and managers in homes, hospitals, and supported living facilities, are bound to continue to need well-informed legal advice or management consultancy about :

  • when to rely on the safeguards,
  • when to rely on the Mental Health Act
  • when to use guardianship
  • when to rely on restriction without the need for a court order
  • when to rely on the emergency ‘vital act’ provisions for short term deprivation of liberty before a court order can be obtained.
  • in particular, when to go to court when a restriction on a person’s relative or family member could be said to amount to depriving the incapacitated person of any contact with the outside world;
  • And when to go to Court – how, who, where, etc.

 

Deprivation of Liberty OUTSIDE of DoLS settings

How should we do this lawfully, and cost effectively? In this country, we call it restriction of liberty, because that is all we can afford to do as a nation, in terms of time and money, courts’ workload and the Official Solicitor’s services.  That has now changed, post the appeals in  Cheshire West  and P & Q (MIG & MEG).

MIG was an 18 year old with learning disabilities, placed with a foster family – learning age of 2.5. MEG was a child in a small residential home with a learning age of 4-5. Both were under continuous supervision and control, for their own care, and both lacked capacity to make decisions about their care arrangements and residence. The both attended college during the day. The council sought declarations about the regimes they were under, and about contact with their families.

The Court agreed it is possible for a regime to amount to deprivation of liberty to occur in a domestic setting in a family home (para 199), on the facts. It regarded the adult placement carer, though self-employed, as an agent of the local authority, and therefore any deprivation of liberty by her, would have been imputable to the state (para 196).

The court held that in considering whether there is or is not a deprivation, it is relevant to consider the alternative – i.e. the life that P would be leading if ot in that placement (para 203). This is where the case becomes difficult to follow.

It held that neither MIG nor MEG were deprived of liberty in their current placements for a number of reasons, which include (at paras 233-234): “each lacks freedom and autonomy dictated by their own disability, rather than because it is imposed on them by their carers. Each is under the continuous supervision and control of her carers … so as to meet her care needs rather than to restrain her in any way…” ; “No other arrangements less restrictive or invasive could be devised that would meet their care needs” and “In neither of these homes are they principally there for the purpose of being ‘treated or managed’. They are there to receive care” (para 230); and finally, they “have no subjective sense of confinement”.

Comment – intention/purpose vs motive/reasons?

This case, taken together with the judgment in Re A, Re C  (where A and C were held not to be deprived of liberty, despite being locked in their bedrooms for 10-12 hours overnight, largely due to the setting being a loving and supportive family home) this seems to continue the dangerous conflation between the question of the existence of deprivation as a matter of analysis of the facts, and the separate issue of justification of any deprivation by reference to the person’s best interests.

The strong impression given in this judgment is that it would need a regime to impose restraint and restrictions on P that  go above and beyond what is  needed  for  P ’s  own   care and best interests, before it could be considered a deprivation.

That must be wrong – it would mean that there would never be a DoL that wasn’t justified. The purpose of the MCA and DOLS in particular is to protect people who lack capacity from well intentioned intervention without due scrutiny or process, as occurred in Bournewood. These cases make it impossible for staff to use the DoL safeguards in real life, because they collapse the distinction between the existence of the regime amounting to deprivation of liberty, and question whether the justification for the regime satisfies the best interests test. They bring the DoL regime into disrepute, and make it obvious that the DoL regime is insufficiently extensive in its scope, if it is about ensuring scrutiny.
Deprivation in an own home setting? – A, C

One child, one young woman, both cared for at home by loving parents, each locked in at night, every night, for the purposes of managing their night-time behaviour – self- harming, destructive, completely lacking in insight as to risk.

Was this deprivation of liberty?

  • Was it any of the authority’s business? The council was not providing services, after all (the council had offered night sitting services)
  • The court said it could be – but not in this case, because this was not even a borderline case, in relation to what the regime looked like.
  • Where does this leave local authorities in cases where the bona fides of the parents or other relatives is in question?

The judge’s final comments:

–   Of course if there is immediate threat to life or limb a local authority will be justified in taking protective (including compulsory) steps: R (G) v Nottingham City Council [2008] EWHC 152 (Admin), [2008] 1 FLR 1660, at para [21]. But it must follow up any such intervention with an immediate application to the court.

–   Social workers need to keep their eyes open and their professional antennae alert when meeting or visiting their clients. And if there is real cause for concern they must act quickly and decisively. But they must guard against being seen as prying or snooping on the families who they are there to help and support. Nothing is more destructive of the ‘working together’ relationship which in this kind of context, as in others, is so vitally important than a perception by family carers that the local authority is being heavy-handed or worse.

 

Cheshire West – asserted restriction of liberty = deprivation, actually – then restriction again, on appeal – and now back again!

P was a thirty-eight year old man with cerebral palsy and Down’s Syndrome and CVAs, significant physical and learning disabilities, and agreed by all to lack the mental capacity to make decisions as to his care and residence. In May 2009 as his carer’s health deteriorated, P was taken into emergency respite care. A best interests meeting (to which the family were invited but did not attend) unanimously concluded that it would be in P’s best interests to reside in a care setting.

P had his own room and 2 adapted bathrooms. The normal staffing ratio during the day amounted to two staff for all four residents. In addition, P received additional one-to- one close personal supervision during the daytime. P continued to attend a day centre five days a week, leaving Z House at 9.30 in the morning and returning at 5.00 in the evening. [NB, this must surely have been an independent living setting, not a care home, because no-one mentions the safeguards!]

He required prompting and assistance with all activities of daily living, including mobility, nutrition, eating, personal hygiene and continence. He had no teeth and therefore required a soft food diet. A speech and language therapist had recently diagnosed a problem with his swallowing reflex which, coupled with his absence of teeth, presented a risk of choking. Regular bathing was essential for P not only as a means to ensure personal hygiene but also as a method by which to obtain and improve his skin integrity.

Other problems and best interests

P has a habit of self-harming by scratching at his neck, chest and arm, and occasional smearing faeces. On occasions, he has assaulted others by pulling, pinching, grabbing and scratching. P’s challenging behaviour has been a long standing aspect of his life. As long ago as 1995, it was suggested that this behaviour was a method of communication. It is a principal reason for the close one-to one supervision which is provided for him at all waking times.

His previous carer’s practice was to allow him to be naked in the home environment, despite his double incontinence. Care staff have sometimes had to resort to physical intervention. On occasions, P has “stored” pieces of incontinence pad and faeces in the roof of his mouth. In order to remove this material, two members of staff have had to use what is known as a “finger sweep” method.

Staff at Z House had adopted a new approach, involving P wearing an all in one body suit sewn up at the front, to prevent access to his groin area, the only access being via a zip at the back. This had proved a successful way of managing his behaviour, although it was clear that there remained a risk.

What was wrong with care planning and commissioning, first of all?

Miss Whitaker expressed the view that P’s care package did not meet P’s needs and proceeded to make a number of recommendations for its adjustment. Care staff told Miss Whitaker that P is able to follow simple speech and conversation and to respond to straightforward questions either by making sounds or through gesture. Miss Whitaker stresses that it is essential that a specialist communication profile for P is developed as part of his support plan, based on continued speech and language therapy assessment.

The level of restraint or physical intervention  required in P’s case was greater than that currently being provided. She based that recommendation upon consideration of what she described as “a well- documented body of evidence – one that demonstrates how, notwithstanding the significant amount of restrictive practice outlined within this report, P continues to present a significant risk of harm to himself and others.”

Her recommendations included specific proposals concerning the use of physical restraint and other restrictive measures. She endorsed the use of an all-in-one body suit which had been introduced after her instruction, but warned that the suit might not be suitable in all circumstances, particularly warm weather, and that use of physical intervention was “highly likely” when P was not using the body suit. Miss Whitaker was of the view that the care plan needed to express more clearly the procedures to be followed if P attempted or succeeded in putting part of his pad in his mouth.

In addition, she expressed the view that the local authority needed to commission an accredited training programme for those working with P for physical intervention so as to give staff real confidence in managing the problem as opposed to merely responding to situations as and when they arose. She assessed that the training needed to be practical rather than theoretical. She expressed the view that it was not fair to P for this not to be set out expressly in the care plan.

Why – on the first appeal – did he (oops – NOT!) count as deprived of his liberty?

(1) Every aspect of P’s life is monitored and supervised by those working for the local authority. There is complete and effective control over his care and movements.

(2) P is obliged to live at Z House. He cannot return to M’s care, nor move anywhere else.

(3) He is unable to leave the premises unescorted.

(4) He has little privacy within Z House. Every aspect of his personal care is supported by staff. (5) Z House records show that his behaviour is challenging and requires management. A wide range of measures is used for that purpose.

(6) Some of his behaviour is extremely challenging and needs urgent intervention, including on occasions physical restraint.

(7) In particular, his tendency to self-harm may require physical intervention. On occasions he can assault others unless restrained. In the community, he is often restrained in a wheelchair by a strap.

(8) Furthermore, his tendency to tear off his continence pads and ingest bits of padding and the contents requires a range of measures, including the wearing of a bodysuit that restricts his freedom, and on occasions, in his own interests, intrusive physical interventions, which can include having his arms held by one member of staff whilst a second inserts a gloved finger into his mouth to forcibly remove any retained material.

(9) The use of restraint is part of his care package. The local authority has been prompted in the course of this case to introduce a new policy which clarifies and articulates the circumstances in which restraint may be used.
The Court of Appeal’s view – http://www.bailii.org/ew/cases/EWCA/Civ/2011/1257.html

Some case reports of this judgment say “He resided in a care home” – but on searching the case reports at all levels one finds that there is no suggestion whatsoever that he was in a care home, or of the DoL Safeguards, which would have been engaged, had that been the position.

How was it that he was merely restricted?

(a) the starting point was the “concrete situation”, taking account of a range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see paras 32-33, 188, 102 of judgment);

(b) deprivation of liberty had to be distinguished from restraint, because restraint alone was not deprivation of liberty (paras 23, 102);

(c) account had to be taken of the individual’s whole situation and context was crucial,

(d) mere lack of capacity to consent to living arrangements could not in itself create a deprivation of liberty and the fact that a domestic setting could involve a deprivation of liberty did not mean that it often would

(e) it was legitimate to have regard both to the objective “reason” for a placement and treatment and also the objective “purpose”,

(f) subjective motives or intentions had only limited relevance, since an improper motive or intention might have the effect that what would otherwise not be a deprivation of liberty was, for that very reason, a deprivation – whilst a good motive or intention could not render innocuous what would otherwise be a deprivation of liberty (paras 74-77, 102);

And…most importantly –

(g) it was always relevant to evaluate and assess the ‘relative normality’ of the situation,

(h) the assessment had to take account of the particular capabilities of the person concerned, since what might be a deprivation of liberty for one person may not be for another (paras 92, 97, 102);

(i) in most contexts the relevant comparator was the ordinary able bodied adult but not in the kind of cases that came before the Family Division and the Court of Protection, concerning children and adults with disabilities whose lives were dictated by their own cognitive and other limitations (paras 86, 102);

(j) in such cases, the comparator was an adult of similar age with the same capabilities as the adult concerned, affected by the same condition or suffering the same inherent mental and physical disabilities and limitations. In the case of a child, the comparator was a child of the same age and development.

Had the judge below done right?

“(2) In the instant case, the judge had not compared P’s situation with the kind of life he would have been leading as someone with his disabilities and difficulties in a normal family setting. There was nothing to show that the life he was living there was significantly different from the kind of life that anyone with those difficulties could normally expect to lead, whatever kind of setting they were living in.

On the contrary, there was a strong degree of normality in his life, assessed by reference to the relevant comparator (paras 105-112). The judge’s reasoning in relation to the measures applied to P from time to time was equally problematic. The measures involved the kind of occasional restraint that anyone caring for P in any setting would have to adopt from time to time. The finger sweep was obviously intrusive but had to be looked at in context. It was little different from what any properly attentive parent would do if a young child was chewing something unpleasant or potentially harmful. It involved a degree of restraint but that was far removed from anything approaching a deprivation of liberty. P’s care plan did not involve a deprivation of his liberty (paras 113-117)”.

Implications of this case:

Clearly the safeguards will fall into disuse, if the answer to the preliminary question as to whether there IS a deprivation going on at all, is to be determined by a close examination of the purpose for the restriction that is being provided. The safeguards were about scrutiny of and justification for deprivation, not seeking to avoid it at all costs, but this is what the outcome of these cases is likely to bring about, and by way of fudging the legally distinct questions of WHETHER a deprivation is occurring, objectively speaking, and then IF SO, whether it is JUSTIFIED….

 

So, on 19 March 2014, the Supreme Court handed down its judgment in the case of “P v Cheshire West and Chester Council and another” and “P and Q v Surrey County Council”. The full judgment can be found on the Supreme Court’s website at the following link:

http://supremecourt.uk/decided-cases/docs/UKSC_2012_0068_Judgment.pdf

 

The appeals to the Supreme Court in MIG and MEG and Cheshire West, concerned the criteria for judging whether the living arrangements made for any mentally incapacitated person amount to a deprivation of liberty. If they do, the deprivation must be authorised by a court or by the procedures known as the deprivation of liberty safeguards (DOLS) in the Mental Capacity Act 2005 (‘the Act’) (if the person is in a care home or a hospital), and subject to regular independent checks.

P and Q (otherwise known as MIG and MEG) were sisters who became the subject of care proceedings in 2007 when they were respectively 16 and 15. Both had learning disabilities. MIG was placed with a foster mother to whom she was devoted and went to a further education unit daily. She never attempted to leave the foster home by herself but would have been restrained from doing so had she tried.

MEG was moved from foster care to a residential home for learning disabled adolescents with complex needs. She sometimes required physical restraint and received tranquillising medication. When the care proceedings were transferred to the Court of Protection in 2009, the judge held that these living arrangements were in the sisters’ best interests and did not amount to a deprivation of liberty. This finding was upheld by the Court of Appeal.

In the Cheshire West case, P was an adult born with cerebral palsy and Down’s syndrome who required 24 hour care. Until he was 37 he lived with his mother but when her health deteriorated the local social services authority obtained orders from the Court of Protection that it was in P’s best interests to live in accommodation arranged by the authority. Since November 2009 he had lived in a staffed bungalow (not a care home) with other residents near his home and had one to one support to enable him to leave the house frequently for activities and visits. Intervention was sometimes required when he exhibits challenging behaviour. The judge held that these arrangements did deprive him of his liberty but that it was in P’s best interests for them to continue. The Court of Appeal substituted a declaration that the arrangements did not involve a deprivation of liberty, after comparing his circumstances with another person of the same age and disabilities as P.

The Supreme Court, unanimously in the appeal of P, and by a majority of 4 to 3 in the appeal of MIG and MEG, allowed the appeals. MIG, MEG and P had all been deprived of their liberty, so far as the facts of the regimes under which they were cared for were concerned. Lady Hale, with whom Lord Sumption agreed, gave the main judgment. Lord Neuberger agreed with Lady Hale in an additional judgment and Lord Kerr agreed with Lord Neuberger and Lady Hale, also in a separate judgment.

Lord Carnwath and Lord Hodge give a joint judgment dissenting in the appeal of MIG and MEG. Lord Clarke agreed with them in an additional judgment.

 

REASONS FOR THE JUDGMENT

The European Court of Human Rights (ECtHR) has established general principles relating to the deprivation of liberty of people with mental disorders or disabilities, albeit that it has not yet had to decide a case involving, as here, a person without capacity, who appears content with their care placement, which is in a small group or domestic setting as close to home life as possible, and which has been initially authorised by a court.

The general principles make it clear that it is important not to confuse the question of the benevolent justification for the care arrangements with the concept of deprivation of liberty. Human rights have a universal character and physical liberty is the same for everyone, regardless of their disabilities. What would be a deprivation of liberty for a non-disabled person is also a deprivation for a disabled person. The key feature is whether the person concerned is under continuous supervision and control and is not free to leave. The person’s compliance or lack of objection, the relative normality of the placement and the purpose behind it are all irrelevant to this objective question.

It follows that in P’s case the judge applied the right test. MIG and MEG were also both under continuous supervision and not free to leave the places where they lived. The deprivation of their liberty was the responsibility of the state and therefore different from similar constraints imposed by parents in the exercise of their ordinary parental responsibilities. Accordingly the decisions of the courts below must set aside and a declaration made that their living arrangements constituted a deprivation of liberty within the meaning of s 64(5) of the Act.

Periodic independent checks are needed for such vulnerable people to ensure that the arrangements remain in their best interests, although it is not necessary that the checks be as elaborate as those currently provided for in the Court of Protection or in the DOLS.

 

Reasons for the dissenting judgments

Lord Carnwath, Lord Hodge and Lord Clarke would have upheld the decision of the judge in both cases. They consider that the degree of intrusion is relevant to the concept of deprivation of liberty, and in the appellants’ cases the care regime is no more intrusive or confining than required for the protection and well-being of the persons concerned. The ECtHR has yet to decide a case of this kind and it is far from clear that it would adopt a universal test which disregarded any disabilities. It remains wedded to a case-specific test. They are concerned that nobody using ordinary language would describe persons living happily in a domestic setting, like MIG and MEG, as being deprived of their liberty.

 

For other Cheshire West commentary and analysis please follow these links:

 

The Department of Health’s advice after the judgement:

http://www.familylaw.co.uk/system/uploads/attachments/0008/4463/DoLS_Guidance_28_march_2014.pdf

Alex Ruck Keene’s (39 Essex Street Chambers, London) Articles on Cheshire West:

http://www.careandhealthlaw.com/Download/pubs/Cheshire%20West%20-%20The.pdf

http://www.careandhealthlaw.com/Download/pubs/Cheshire%20West%20%20one%20day%20on%20Alex%20Ruck%20Keene%2039%20Essex%20Street%20Chambers.pdf

Lucy Series’ Blog “The Small Places”:

http://thesmallplaces.wordpress.com/2014/03/20/the-acid-test/

Belinda Schwehr’s summary and commentary on the Select Committee on the Mental Capacity Act 2005:

http://www.careandhealthlaw.com/Download/pubs/The%20Select%20Committee%20on%20the%20Mental%20Capacity%20Act%202005%20(4).

Belinda’s approach on how to tell if you are depriving someone of their liberty:

http://www.careandhealthlaw.com/Download/pubs/For%20care%20homes%20and%20hospitals,%20considering%20the%20Deprivation%20of%20Liberty%20Safeguards.pdf

http://www.careandhealthlaw.com/Download/pubs/What%20might%20amount%20to%20deprivation%20of%20liberty,%20and%20what%20might%20not.pdf

 

 

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