Luke Clements

Luke Clements is the Cerebra Professor of Law at Leeds University and is a solicitor.

Court of Protection in Wales

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Briefing by Roger Laidlaw[1] ~ updated October 2017.  For corrections or suggested additions please contactanjames57@gmail.com
 
 

The Deprivation of Liberty Safeguards (DoLS)

The Deprivation of Liberty Safeguards came into force in 2009.[2] They were intended to address non-compliance with article 5 of the European Convention on Human Rights (ECHR), the right to liberty, in relation to patients in hospital and residents in care homes who were not capable of giving consent to care arrangements involving decisions about residence and care arrangements which imposed restrictions and control on their movement.

The Bournewood Hospital case highlighted the lack of applicable legislation and came to the deficit being termed ‘the Bournewood gap’. HL was a man with an autistic spectrum disorder who lived with carers in an adult family placement. He had formerly been an in-patient at Bournewood Hospital. He was readmitted to the hospital following a serious episode of distress. His stay at the hospital was not authorised by the Mental Health Act and a dispute between professionals, his family and his paid carers about the appropriateness of this decision to end his placement with them highlighted the insufficiency in UK law in relation to compliance with article 5 of the European Convention on Human Rights. The culmination of a protracted series of legal hearings was the finding of the European Court of Human Rights in HL v. UK (2004)[3] was that there was neither a body of legislation or guidance defining the powers to authorise such a detention nor was there a process by which the detention could be considered speedily by a competent Court.[4] Happily, HL had returned to live with his carers in the meantime.

 

The Safeguards scheme – scope and terminology

The DoLS scheme creates a system for referrals being made and creates a framework of assessments intended to find out if the ‘relevant person’ is subject to a deprivation of their liberty because of their care plan, whether this requirement is proportionate, or could be reduced in intensity and is intended to act as an audit of achievable liberties. Care homes and hospitals responsible for the care and support of the relevant person are ‘Managing Authorities’ and the elements of the Local Authority and in Wales, in relation to detentions in private and NHS hospitals, Local Health Boards, are responsible for arranging assessments and Authorising deprivations of liberty are called ‘Supervisory Bodies’. Assessments are undertaken by both a doctor, often a psychiatrist and a Best Interest Assessor (BIA) who may be a Social Worker, Registered Nurse, Occupational Therapist or Chartered Psychologist. Assessments are completed on standard report forms. If assessment criteria are met, Standard Authorisations can be given for up to a year and can contain both conditions, which should be considered binding on the Managing Authority as well as recommendations made by the Best Interest Assessor. Conditions and recommendations may touch on issues such as support spending time away from the home or hospital, contact with families or the investigation of potentially less restrictive arrangements for support. Supervisory Bodies should be responsible for checking that the criteria for a valid deprivation of liberty are still met and for monitoring compliance with conditions set in the ‘Standard Authorisation’. The framework makes it possible for appeals against detention to be referred to the Court of Protection. Each relevant person must have a Relevant Person’s Representative (RPR) who will maintain contact with them and will support them in their dealings with the Supervisory Body. This may be a friend or family member but could be an advocate acting as a Paid Representative. The Representative should in principle be able and willing to support the relevant person with an appeal against their detention. The Supervisory Body can be asked to undertake a review as to whether conditions are still met by the person themselves or as to whether conditions need to varied, their representative or staff at the Managing Authority. This may be termed a part 8 review. Many family supporters might find it difficult to undertake this aspect of the role if they sincerely believe that support in a hospital or care home represents the best or safest option for their loved one. Lay people acting as the representative are eligible for support by a s. 39D Independent Mental Capacity Advocate (IMCA). The representative or the relevant person themselves are entitled to Legal Aid for any application to the Court of Protection.

 

DoLS Code of Practice

The Deprivation of Liberty Safeguards have a statutory Code of Practice published in 2009.[5] The procedures described in the Code of Practice remain in force but some of the judgments presented about what might constitute a deprivation of liberty are badly out of date.

 

Deprivation of liberty and the Supreme Court 2014.

Despite being crucial to the operation of the DoLS scheme, the amended Mental Capacity Act 2005 did not define the term ‘deprivation of liberty’. Cases taken to the Court of Protection in relation to welfare issues began to comment on the issue of deprivation of liberty and between 2009 and 2014 the trend of case law was to restrict circumstances that might amount to a deprivation of liberty and in effect raise the threshold at which it was considered necessary to seek a DoLS Authorisation or seek a welfare order. Two cases concerning young people with learning disabilities were particularly influential and were, in effect, chosen as test cases for the Courts to give an authoritative ruling on the threshold for a deprivation liberty.

P was a young man with a learning disability and physical disabilities who resided at a supported living setting in the Cheshire West and Chester council area. Because of the degree of his disability, his care plan included extreme restrictions, including the use of a special one-piece garment worn under his clothes intended to prevent him scratching at his skin and gaining access to his continence pads, which he could tear and stuff into his mouth. The High Court[6] initially decided that the intense restrictions in his care plan amounted to a deprivation of liberty but that they were proportionate and necessary and authorised his care arrangements. The case was referred to the Appeal Court[7] where it was held that there was in fact no deprivation of liberty.

P and Q (also known as MIG and MEG) were two sisters who had learning disabilities who were removed from their original family home because of concerns about poor parental care. Both resided in support settings commissioned by Surrey County Council, where they were subject to restrictions because their impairments undermined their ability to care from themselves independently. One sister resided with a family in an adult placement scheme and the other in a care home. In contrast to P, neither was subject to levels of restriction that would be judged to be unusually high. Their circumstances were also considered by the High Court[8] and then the Appeal Court.[9]

The two cases came before the Supreme Court as conjoined appeals :[10] the lead judgment was given by Baroness Hale (an authority on mental health and family law). The Court ruled that all three people were subject to care arrangements that amounted to a deprivation of liberty.

The judgment focused on the European Court of Human Rights judgment in HL v. UK (2004).[11] In its opinion the reason why restrictive care arrangements had to be imposed were not relevant in determining whether there was a ‘deprivation of liberty’ for the purposes of Article 5 of the European Convention on Human Rights. In a widely quoted section of the judgment, Baroness Hale commented:

‘If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage (para 46) [12]

 

Definition of a Deprivation of Liberty – ‘The Acid Test’

In the Supreme Court’s opinion, the ‘the acid test’ to be taken from the HL v. UK (2004)[13] case was that for someone to be subject to a deprivation of liberty in a hospital or social care setting, they must be subject to (para 48-49):

  • continuous supervision and control; and
  • be not free to leave.

Many people with support needs created by mental disorders that require their whereabouts to be known by staff and who need assistance in anticipating their own care needs and ensuring that their environment is free from hazards will achieve this threshold. [14] The Law Society (the body that regulates English and Welsh) solicitors has produced guidance on the case law around deprivation of liberty in hospital and social care settings.[15]

 

Impact of the Supreme Court Judgment – increase in applications

Following the Supreme Court judgment in March 2014, the number of applications under the Deprivation of Liberty Safeguards increased substantially and soon overwhelmed the arrangements made by public authorities to undertake assessments in a timely manner. It was also identified that people living in settings other than hospital and care homes, such as adult placements, supported living schemes based on tenancies and even people living with families or in their own homes could be subject to deprivations of liberty created by care arrangements. These cases began to be referred to the Court of Protection for welfare orders in much greater numbers. In the flurry of concerns about this sudden increase in responsibilities for ill-prepared and under-resourced public bodies, the fact that the Supreme Court judgment might be considered deeply reassuring can be lost sight of, namely, that an authoritative ruling has been given by the UK’s superior court that strongly affirms that people with disabilities have the same rights as other citizens.

 

The Deprivation of Liberty Safeguards in Wales

The provisions of the Deprivation of Liberty Safeguards apply in England and Wales but the Welsh Government used the opportunity presented to apply different secondary legislation and other differences have been created by the different directions of NHS reform in England and Wales. There are therefore some differences in implementation and application.

These differences amount to:

  • There are still NHS Supervisory Bodies in Wales, in England, responsibility for DoLS assessments in hospital settings passed to local authorities when Clinical Commissioning Groups (CCGs) were created
  • Minor differences in the timescales for the completion of assessments
  • Different requirements about the qualifications of Best Interest Assessors and Medical Assessors
  • Different rules about the eligibility of assessors in relation to their possible employment by the hospital or care home ‘Managing Authority’
  • There are different forms for recording assessments[16] and different guidance concerning the production of these reports in Wales[17]
  • The Deprivation of Liberty Safeguards Code of Practice applies to England and Wales and notes some differences in effect. The guidance given is incomplete and readers need to be alert to use of the phrase ‘in England’. Correct practice in Wales is described in the Guidance to Supervisory Bodies in Wales. This guidance was issued in 2009 and is also out of date in relation to changes in practice created by case law.[18]
  • There is also a document giving Guidance to Managing Authorities in Wales. Managing Authorities are the hospitals and care homes where the relevant person might reside and be cared for.[19]

 

DoLS and the Coroner

Any death in state custody, such as a death in prison, a police station, immigration and asylum detention centre or a death in hospital for someone subject to the Mental Health Act requires an automatic inquest into the circumstances of death. An inquest is a legal hearing and does not imply that a forensic autopsy needs to take place. This requirement exists because it is recognised that people in institutional care have historically been subject to neglect or abuse and it is intended as a safeguard. Before April 2017 someone passing away in a hospital or care home subject to a DoLS Urgent or Standard Authorisation was deemed to have died in state custody and there was a requirement for an automatic inquest.

This requirement became burdensome when the number of people subject to DoLS, many of whom were elderly and frail, increased in 2014 and there were concerns about the possibility of distress to families and delays to funeral arrangements.

An amendment in the Police and Crime Act 2017 changed the definition of ‘state custody’ to exclude people subject to a DoLS authorisation or detained under the authority of a welfare order made by the Court of Protection. This change became effective after April 3 2017. Changes to DoLS requirements were made in s. 178 of the Act and are discussed in from paragraph 57 onwards in the Home Office circular explaining provisions in the Act.[20]

Chief Coroner’s guidance published at this time caused confusion because of paragraph 40.[21] This gave guidance based on a judgment called Ferreira vs Senior Coroner for Inner South London, an Appeal Court case reported in January 2017.[22] The paragraph states that people who may have been kept in conditions in a care home or hospital that objectively amounted to Deprivation of Liberty need to be subject to a Coroner’s Inquest. It has been widely assumed that people awaiting DoLS assessments may fall into this category. This requirement seems perverse and puzzling as it was reported at the same time as the changes created by the Police and Crime Act. It is to be regretted that the guidance did not comment on this apparent contradiction and that this left many professionals wondering if they’d understood the guidance properly. It is anticipated that the issue may come to Court again and an application has been made for the Ferreira case to be heard in the Supreme Court.

Coroners are judicial officers who have wide discretion and extensive operational independence. The Chief Coroner is more of a ‘first among equals’ than a departmental head. It is evident that not all Coroners are currently following the advice that people on the waiting list for a DoLS assessment or otherwise held in conditions of objective detention in care homes and hospital require an automatic inquest upon death. All guidance stresses that anyone who passes away suddenly or in unclear circumstances will still need an inquest regardless of their DoLS status.

[1] Roger Laidlaw is a social worker who is the Deprivation of Liberty Safeguards Coordinator for two local authorities in south Wales. Roger began his career in social care in a direct access hostel for homeless men while completing research for a history degree. He is a an Approved Mental Health Professional and a Best Interest Assessor under the Deprivation of Liberty Safeguards scheme. He provides training for staff in various roles and is one of the administrators on a Facebook for professionals who use the Mental Capacity Act.

 

[2] The provisions derive from the Mental Health Act 2007 which amended the Mental Capacity Act 2005 https://www.legislation.gov.uk/ukpga/2005/9/schedule/A1; https://www.legislation.gov.uk/ukpga/2005/9/schedule/1A
[3] Applic 00045508/99; judgement 5th October 2004.
[4] http://www.bailii.org/eu/cases/ECHR/2004/471.html
[5] http://www.wales.nhs.uk/sites3/Documents/744/Code%20of%20Practice%20E1.pdf; http://www.wales.nhs.uk/sites3/Documents/744/Code%20of%20Practice%20W1.pdf
[6] P v. Cheshire West & Chester Council [2011] EWHC 1330 (Fam).
[7] Cheshire West & Chester Council v. P [2011] EWCA Civ 1257.
[8] Surrey CC v MEG & MIG [2010] EWHC 785 (Fam) 15th April 2010.
[9] P & Q v Surrey CC and others [2011] EWCA Civ 190.
[10] P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents) and P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent) [2014] UKSC 19.
[11] Applic 00045508/99; judgement 5th October 2004.
[12] https://www.supremecourt.uk/decided-cases/docs/UKSC_2012_0068_Judgment.pdf
[13] Applic 00045508/99; judgement 5th October 2004.
[14] https://www.supremecourt.uk/decided-cases/docs/UKSC_2012_0068_Judgment.pdf
[15] http://www.lawsociety.org.uk/support-services/advice/articles/deprivation-of-liberty/
[16] http://gov.wales/topics/health/nhswales/mental-health-services/policy/dols/?lang=en; http://gov.wales/topics/health/nhswales/mental-health-services/policy/dols/?skip=1&lang=cy
[17] http://gov.wales/docs/dhss/publications/151029guidanceen.pdf; http://gov.wales/docs/dhss/publications/151102guidancecy.pdf
[18] http://www.wales.nhs.uk/sites3/Documents/744/Guidance%20for%20Supervisory%20Bodies.pdf
[19] http://www.wales.nhs.uk/sites3/Documents/744/Guidance%20for%20Managing%20Authorities.pdf
[20] https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/604159/Home_Office_Circular_-_Policing_and_Crime_Act_2017.pdf
[21] https://www.judiciary.gov.uk/wp-content/uploads/2013/10/guidance-no-16a-deprivation-of-liberty-safeguards-3-april-2017-onwards.pdf
[22] http://www.bailii.org/ew/cases/EWCA/Civ/2017/31.html