deprivation and delay – the severe consequences of getting DOLS
wrong
13 June 2011
The Court of Protection last week gave judgment in a landmark
ruling in Neary v London Borough of Hillingdon [2011] EWHC 1377
(COP). The issue for determination was the lawfulness of the local
authority’s actions in keeping Steven Neary in a support unit, away
from his family, from January to December 2010.
The judgment provides important guidance on the use of the
Deprivation of Liberty Safeguards (DOLS), the decision-making
process when residence is in dispute, and the responsibility of
local authorities (both as providers of social care and supervisory
bodies). The judgment is particularly important in finding the
local authority breached Article 5 (4) of the Convention of Human
Rights in its delay in making an application to the Court.
Facts
Steven Neary is a vulnerable adult with autism and a severe
learning disability. He does not have mental capacity to make
decisions about where he should live. He is dependent on his family
and social services. Since 2007, Hillingdon has provided extremely
high levels of support to Steven and his family which, until 2010,
was provided in partnership with the family.
Steven Neary is a vulnerable adult with autism and a severe
learning disability. He does not have mental capacity to make
decisions about where he should live. He is dependent on his family
and social services. Since 2007, Hillingdon has provided extremely
high levels of support to Steven and his family which, until 2010,
was provided in partnership with the family.
Steven was placed in a support unit on 31 December 2009. Mr
Neary Snr believed this was temporary and that his son would be
returned to his care after a short period of respite. In fact,
Steven remained in the support unit until December 2010 when he was
eventually returned to his father’s care following a Court
Order.
Judgment
Jackson J found that the local authority had no lawful basis for
depriving Steven of his liberty in contravention of Article 5, and
that it had also breached Article 8 of the European Convention on
Human Rights by keeping him away from his family.
The paramount question was where he should have been living, and
the Court emphasised that family comes first. The primary
assumption must be that mentally incapacitated adults should live
at home, and that the (heavy) burden of proof must rest with the
public body to show that it will provide a better quality of life
if it intends to take them out of the family home. There was no
sign of this in the local authority’s approach here, which was a
breach of Article 8. The Judge found the local authority had
repeatedly failed to take into account the views of Mr Neary Snr
and had taken his wearied acquiescence as agreement, which it was
clearly not.
Having been placed in the support unit, the Judge had no
difficulty in finding that Steven’s life there was a deprivation of
his liberty, given his own clear objection to being there, his
father’s objection and the “total effective control of Steven’s
every waking moment” by staff. Though purportedly made lawful, as
being in his best interests, by DOLS authorisations, the Best
Interests Assessments on which these were based were “obviously
flawed” because they did not say anything about what Steven or his
father wanted.
Even though the schedule says that supervisory bodies “must”
grant standard authorisations if all assessments are positive, the
Judge found that this must not simply be “a rubber stamping
process”, and in order to discharge its proper responsibilities,
the supervisory body must scrutinise the documents (particularly
the Best Interests Assessment) and satisfy itself that they
represent a “thorough piece of work”. He went on to conclude “were
it necessary to hold Hillingdon as a supervisory body had acted
negligently in issuing successive standard authorisations on the
basis of inadequate material… I would be prepared to do so”
Practical guidance
There are many important points raised by this case, some key
ones of which are:
The purpose of DOLS authorisations and of the Court of
Protection
Significant welfare issues that cannot be resolved by discussion
must be placed before the Court of Protection as a matter of
urgency, and the burden is on the local authority to do this. The
DOLS scheme must not be used by a public body as a means of getting
its own way on the question of whether it is in the person’s best
interests to be in the place at all.
Decision-making
Where a local authority has dual roles (such as being both the
managing authority and supervisory body) it should be clear who is
responsible for making decisions and which part of the local
authority deals with which part of the application.
The responsibilities of the supervisory
body
The responsibilities of a supervisory body require it to
scrutinise the assessment it receives with independence and a
degree of care that is appropriate to the seriousness of the
decision and to the circumstances of the individual case that are,
or should be, known to it. “Insufficient scrutiny of inadequate
information” will not lead to valid authorisations.
Lessons to be learned
What public bodies should take from this judgment:
- Account must be taken of the individual’s wishes and feelings
and those of their family, to consider alternative care options and
the possible need for an IMCA - if it does not, it will be
deficient.
- It is not right to use DOLS authorisation alone, without review
by the Court, to justify the removal of a person by their family in
the face of clear opposition.
- Where there is a dispute about placement, the best interests
assessment should say so, and timely applications to the Court
should be made to resolve the issue. Failure to do so could be a
breach of Article 5(4).
- Local authorities should not leave the responsibility of making
applications to the court to the incapacitated person’s family. The
strong implication is that lack of financial resource will not be
accepted as a good reason for failure to make an application and
could lead to significant judicial criticism.
The content of this bulletin is provided for the purposes of
general interest and information. It contains only brief summaries
of aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.