healthcare update - issue 12
DOLS – more a tiger than a pussycat?
As we wrote in the last issue, it appears that the Deprivation of
Liberty Safeguards (DOLS), just past their first anniversary since
implementation on 1 April 2009, are being used considerably less
than was expected by the Department of Health.
The expectation was that there would be tens of thousands of
people in the 'Bournewood Gap' – named by the case of HL v
Bournewood Hospital, where the European Court of Human Rights held
that an incapable but compliant patient being kept in Hospital on
an informal basis was being unlawfully deprived of his liberty, in
breach of Article 5 of the European Convention on Human Rights.
DOLS fills this gap by setting out a procedural framework giving
legal authority for situations in which someone without capacity to
decide their residence for themselves is, in their best interests,
deprived of their liberty.
The reality has been very different, and although the picture
has varied enormously from one region to another, far fewer DOLS
authorisations have been processed than anticipated. Commentators
have pointed out the complexity and bureaucracy of the process, and
the lack of obvious sanctions or mechanism for enforcement. We
wondered whether use of the system might increase only when legal
challenges started to reach the courts.
That litigation has now started in earnest, with the brutal
judgment of Mr Justice Baker in G v E and others (26 March
2010). Until now, what little case law there has been has tended to
focus on some of the technicalities of DOLS, in particular the
relationship between DOLS and the Mental Health Act. G v E is a
different kettle of fish.
E was a 19 year old young man with a genetic disorder causing a
severe learning disability, so he lacked capacity on issues of his
own residence. He had been placed with a foster carer, F, for 10
years. When concerns arose about possible abuse by F, E was removed
(on 7 April 2009) into respite care, and then into a private care
placement. G, E's sister, challenged the care arrangements, and in
particular the failure to use DOLS, which the local authority
insisted did not apply, either because he was not deprived of his
liberty, or because he was not in a registered care home. The
court’s scathing judgment was that:
- DOLS did apply, despite E having 'a tenancy' with the private
care provider, which the judge heavily criticised – the fact that
the placement was not a registered care home did not prevent it
being within the definition of a care home for DOLS
- E was clearly deprived of his liberty, as the care regime
exercised complete and effective control over him, including use of
medication to control his behaviour
- The local authority's removal of E from F’s care was arbitrary,
without due consideration of his right to family life, and failed
to involve F and G in the decision making, so was in breach of E's
Article 8 right to family life
- There was a "serious breach" of Article 5, as E was deprived of
his liberty without any legal safeguard, and DOLS, which should
have been used, had been wholly ignored
- The local authority’s actions had been "lamentable", and the
council were particularly criticised for being so slow to accept
their "grievous failings"
- The key social worker was exempted from criticism, only because
she had requested training on the Mental Capacity Act, which the
Local Authority had failed to provide.
The local authority involved will be feeling very bruised by
this judgment. It was an interim hearing only, providing for E's
care in his best interests, pending a final hearing when the court
has a psychiatric report. The local authority can expect to receive
a further judicial battering at the final hearing in July.
The health and social care sector should take note of this
decision. It demolishes the idea that DOLS lacks teeth and will
undoubtedly encourage more litigation. We anticipate that G v E,
and cases like it, will increase the use of the safeguards as well
as underlining the value of investment in training and advice
before things go wrong.
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The content of this update 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.