death of DoLS?
10 November 2011
“Deprivation of Liberty” has always been a slippery concept, in
a health and social care setting, but with huge risks if you get it
wrong. A deprivation of liberty without lawful justification, and
due legal process for scrutiny, would be a breach of the person’s
rights under Article 5 of the European Convention, with all the
adverse consequences of possible liability in damages, or
punishment in legal costs and, increasingly, very public criticism
in court and the media, especially in the cases of public
authorities which fall foul of this.
The Court of Appeal Judgment in P v Cheshire West and Chester
Council (9 November 2011) raises fundamental issues which seem
likely to significantly reduce the number of cases where there is
found to be a deprivation of liberty in the first place.
P was a 39 year old man with learning disabilities and autism,
who lacked capacity to make decisions about his accommodation and
care. In April 2011 a judge held that he was deprived of his
liberty in his local authority placement at Z House, as staff had
complete and effective control of his life, sometimes using a “body
suit” zipped at the back to prevent him getting to his continence
pads, which he had a habit of eating.
The Court of Appeal says, in essence, that this care was
required as a result of his condition, was “normal” for people like
him, and therefore no deprivation.
Lord Justice Munby’s thorough review of the case law revisits
two key issues – “purpose”, and “normality”, which the court also
wrestled with in the case of “MIG and MEG” (known as “P and Q” in
the Court of Appeal).
He accepts that subjective good intentions do not render
innocuous a situation that would otherwise be a deprivation of
liberty (though he does think that acting in bad faith could turn a
situation into a deprivation of liberty) (para 71). He
distinguishes this from the objective issue of the aim of the
restrictions, put in terms of the "purpose" or "reasons", which he
says must be relevant to whether or not a situation is a
deprivation of liberty (para 75-76). This may seem a fine
distinction, but its real significance is clear when Lord Justice
Munby goes on to look at the context and "normality" of the
placement.
He said the key is to assess the “relative normality” of P’s
life, taking into account the particular care needs arising simply
from his physical or mental condition. It is not appropriate to
compare P with a healthy adult, who would clearly be deprived of
his liberty in these circumstances. “Some adults are inherently
restricted by their circumstances”, and the court of protection is
dealing with adults “with significant physical and learning
disabilities whose lives are dictated by their own cognitive and
other limitations”. The appropriate contrast to draw is with “the
kind of lives that people like [P] would normally expect to lead”
(paras 86, 97 and 102). There may be those who find the language of
judging X’s care according to the life expected by "people like X”
(para 102) a little uncomfortable, in the context of trends towards
individual care and personalisation.
The Court of Appeal said that the first instance judge failed to
see that the restrictions and limits on his life at Z house were
nothing more than "the inevitable corollary of his various
disabilities" (para 110), and “there was nothing to show the life
he is living at Z House is significantly different from the kind of
life that anyone with his concatenation of difficulties could
normally expect to lead…." The reality is that P was "living a life
which is as normal as it can be for someone in his situation", and
therefore he was not being deprived of his liberty (para 110,
116).
This is hugely significant, and seems to raise a number of
issues which the courts will have to continue to clarify over the
next few years:-
Since the introduction of the Deprivation of Liberty Safeguards
(DOLS), massive effort has been spent on education that a
"deprivation of liberty" is not necessarily a bad thing, or
inappropriate, but simply requires scrutiny and lawful
authorisation (whether through DOLS in a care home or hospital, or
the court of protection in other circumstances). Anecdotally, one
of the reasons given for apparent underuse of DOLS is that
professional staff understandably find “deprivation” a pejorative
term, and are reluctant to recognise it in the care provided which
is, usually, assessed in good-faith to meet the needs of P’s
physical and mental condition. Lord Munby’s judgement, perhaps,
shows that they have been right all along.
If it is right that restrictions imposed simply to meet the
needs of P’s condition are by definition not a deprivation of
liberty, it becomes difficult to imagine a situation that would be
a deprivation that could nevertheless be lawful (whether by DOLS
authorisation or by court of protection order) as being in P’s best
interests, necessary and proportionate, and the least restrictive
option. It would seem that all the conditions that are required to
make any deprivation lawful will, in effect, mean in most cases
that there is no deprivation at all. Education and training that
has emphasised the need to separate the primary question of whether
there is a deprivation of liberty from the secondary question of
lawful justification may now to be revised.
As with the health and social care system as a whole, the issue
of choice is paramount. If there is no realistic alternative to his
current placement and circumstances, then it seems there is no
deprivation of liberty (para 58). Taken together with the recent
high-profile case of Neary vs Hillingdon, it seems the most likely
circumstances where a deprivation of liberty is found to exist
arise when a family and a public body offer competing proposals for
care, and in particular where the state tries to assert some
control over what would otherwise be family life, protected by
article 8 as much as article 5.
If that is the case, we may wonder if there is a discriminatory
effect against those vulnerable people, lacking capacity, who do
not have family offering alternative proposals, who may therefore
be deemed not deprived of liberty, and will not have the benefit of
any scrutiny of their care, either through DOLS or the court. The
experience of recent scandals and reports about care of the most
vulnerable in society might encourage a public view that more
procedural scrutiny and safeguards are required, rather than less.
The deprivation of liberty safeguards were introduced because the
European Court of Human Rights found that HL was deprived of his
liberty at a mental hospital where he was detained as an informal
patient, for which the common law doctrine of “necessity” was
insufficient justification or safeguard. Lord Justice Munby
observes that this is a far cry from cases in which someone is in a
family or foster home, or small residential unit. Despite this
observation, apart from the fact that in HL his foster carers
wanted to bring him home it is difficult to see why such there is a
significant difference. The purpose or aim of the hospital managers
in HL was to keep him safe and to care for him in what was believed
to be the best way possible in his best interests, the same purpose
or aim as the Local Authority in this case.
In the absence of family, or others, pressing for an
alternative, the reasoning in Chester seems to risk going full
circle - back to before HL and DOLS - re-establishing deference to
a professional assessment, with any restrictions put in place in
good faith according to the physical and mental health needs being
deemed not to be a deprivation of liberty, without significant
scrutiny and perhaps not so very far, in practice, from the old
common law idea of "necessity".
Strictly speaking, there may be no need to bring cases to the
court if it is not felt, or disputed, that there might be a
deprivation but we tentatively suggest it would be prudent to
continue to seek confirmation from the court where there is any
doubt. Lord Justice Munby hints at this when he says that many
cases coming to court will be fairly obviously no deprivation - for
example “if someone is being cared for by their parents, friends or
relatives in a family home …or in a foster placement or its adult
equivalent in small specialist sheltered accommodation” (para 103)
- and the court will be able to deal with most cases of this type
"fairly but at the same time simply and quickly… on the basis that
there is no deprivation of liberty" (para 104).
This would certainly ease the pressure a little on public
authorities, the official solicitor and the court, who are all
currently snowed under with applications, particularly in the wake
of Neary, but it remains to be seen whether the notions of
"purpose" and particularly "normality" in turn raise more questions
than answers.
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