Valley of the DoLS…. whither next?

Judicial politeness is wearing VERY thin, over Deprivation of Liberty, the suggestion by ADASS that there would be 30,000 extra cases, and the latest round of scenarios being brought to Court of Protection, such as the Rochdale, Tower Hamlets, Bournemouth and W City Council cases, as well as the fall-out from Re X.

Munby LJ’s case management approach, in Re X, whereby he secured the opportunity to get 25 varying situations to court, so he could make up some principled procedural rules for streamlining, and on which the new Rules of Court have been based, has been held to be something he had no power to do – by a Court of Appeal saying so, albeit that it admitted that it no power either even to hear an appeal from his judgment!

Mostyn J and Bodey J are fighting a rearguard action to differentiate between supported living/own home/benign relatives-driven restriction of liberty or deprivation (in the latter case on the footing that it is not imputable to the State, if ‘diluted’ by the input of benign relatives’). However, the Court of Appeal went along with the allowing of an appeal against Mostyn J’s Rochdale decision (without saying why, much to Mostyn’s tangible chagrin) presumably on the footing that a person’s physical inability to leave CANNOT CONCEIVABLY gainsay the finding of factual deprivation of liberty, if they are also incapable of asking to leave: one would still need to consider what would happen if someone else turned up to take them away, in order to determine whether they are actually NOT FREE to leave, and hence ‘deprived’ and in need of that situation being authorised.

In the children’s field, in D, a 15 year old was held to be lawfully deprived of his liberty because his parents had consented, even though the MCA applies post 16 for the last two years of a child’s minority. In the vast majority of cases, under 18 year olds in special schools and care homes will be living where they’ve been placed with parental involvement and acquiescence through the application of full or shared parental responsibility, so the approach in D’s case shows the way forwards if we do not want to extend DoLS to Ofsted settings. Seeking explicit parental consent to behavioural support plans, is my recommendation, there!

Fascinating though it is to people like me, one can easily see that this simply cannot go on – it will either fatally damage councils’ finances, the practical day to day running of the judicial system and the Official Solicitor’s viability existence, or (if we fudge it) the rule of law.

I think that we must all remind ourselves that it is not deprivation of liberty that is bad, or wrong, morally, legally or ethically: it is sometimes a Care Act need which must be funded, and often a person’s human right, precisely because of their incapacity. WHAT IS WRONG WITH IT, IS THAT IT MUST NOT BE ARBITRARY; AND IT MUST BE OPEN TO THE PERSON TO CHALLENGE THE SITUATION USING THE JUDICIAL SYSTEM. AND OF COURSE, people without mental capacity need extra help to USE the judicial system in the first place… and may just be invisible, if they have no relatives to raise their eyebrows at the care package.

A look back at the good old days…

Since the Bournewood case, in the late 1990s, we have had at least 5 years of consultation, 2 pieces of legislation, 2 tranches of guidance, about 100 cases, taking the law up some predictable twists and turns, and an industry of training, for BIAs, IMCAs and RPRs. And yet BEFORE the Bournewood case, when declaratory relief was all that there was, the same two types of cases, essentially, came to court:

a) Cases where the person confined did not accept that they actually lack capacity, in relation to the regime in which they are being managed and that they were therefore being detained without legal excuse. Such people needed to challenge the legitimacy of that detention – and therefore needed legal aid and HELP to do so – only those with litigation friends made it to court…

b) Cases where a third party was either trying to get to see the person, inside, or to improve the conditions under which the care was being delivered – in which case the person needed to bring judicial review proceedings about the appropriateness of the package – or was trying to break the person out of the setting in which they were confined – in which case they needed to make an application for asserting that the alternative they could themselves offer, was what was really in the best interests of the person concerned, or that the care package had been concluded without proper best interests decision making.

A variation on this second theme was where the State needed an injunction to make interference with the person into a contempt of court, and thus keep the package stable.

This analysis still holds good today, and explains the difference between the ADASS guestimate as to the floodgates if one followed the Cheshire West case, and the real number of cases that have been conmenced, which the Court of Protection is coping with at the moment. Where a person is being well cared for, with the wholehearted support of relatives with capacity to challenge the plan, it will be legally dubious in only a tiny percentage of cases, by virtue of the relatives’ real motives not being properly scrutinised, or the person’s capacity not being properly assessed.  

I am not knocking the emphasis in the case law on non-arbitrariness and access to judicial scrutiny under article 5.4 of the Convention is importance, but I am saying that one does not need “double” care planning (the essence of DoL Safeguards) to achieve this. What one needs is a clear system for State intervention (which the MCA and new Care Act create, in my view); actual compliance with the Care Act, by councils and the social work sector; a properly funded Official Solicitor system and rules of court allowing party status in the cases that DO have to be brought, and a properly funded IMCA system with power to challenge statutory or privately arranged care plans where an independent person thinks something is not quite right…

What happens abroad?

It isn’t happening in other European countries, as far as I can tell. They don’t even have DoLS-type regimes for administrative scrutiny in other Convention countries, let alone judicial scrutiny.

I wonder why this is? Is it that in all other Convention countries, people are simply not NEEDING to be confined by dint of uninsightful challenging behaviour, or dementia? Are they all electronically chipped or under CCTV? Is it that nobody is really bothered in those other countries whether it is a breach of human rights, if it is happening without access to legal scrutiny, and we are just much more civilised? Or is it that our care sector workforce and care homes and hospitals are regarded as of a much lower quality in terms of humanity or stimulation, than is the case, abroad? Or is it that those needing it, elsewhere, are all looked after by their relatives, with no real State intervention, and the real problem is that the majority of people who might otherwise be carers, here, don’t wish, or can’t afford, to give up work, here, in order to do it at home? Where is the research on what happens in other countries signed up to the European Convention, I am wondering? Any academics out there with the answer to that question, please?

The next steps

When the new DOLS proposals come out on 7th July, they will have to take the Care Act into account.

That Act and the guidance stresses the pervasiveness of the Mental Capacity Act at the assessment and care planning stages; it suggests that regimes for restraint and confinement be explicitly planned for and commissioned, and it makes safeguarding turn on a concern about abuse or neglect, to which well-planned and properly resourced benign care cannot ever give rise.

So it seems to me that if councils knew what they were care planning for, in light of a proper finding about capacity, we would know who was deprived of their liberty according to the acid test, and not rely on care homes and hospitals to tell us. We could return to a position whereby incapacitated people who need caring for continuously in order to be safe could be presumed to be legally detained, as of unsound mind, so long as the means to challenge that position for people lacking capacity included funded advocates who could get litigation friends or the new style representatives sorted out, to probe and take the initiative to assert that the regime should not be happening, in any given case.

Belinda Schwehr

About Belinda Schwehr

Belinda has been a lawyer (both a barrister and then a solicitor advocate), a law lecturer at a university, and a trainer and consultant specialising in Adults' Social Care legal framework issues. She first became interested in social care law when the Gloucestershire case was running between 1995 and 1997, never having met a real live social worker, before that point! She regards social care as the most interesting field of law she has ever been associated with, combining aspects of public law, the regulation of power, economics, management skills, EU law, procurement, criminal law, incapacity law, land law and contract, and doesn't expect ever to tire of the stuff. If the Care Act is going to be the last word on it, however, she would like to think it was worth all that sitting there and getting fatter whilst thinking about how it should all hang together! She does glass craftwork and house renovations for a hobby, has one son in his twenties, and about 5000 online friends... soon to be 50,000, with any luck!

2 thoughts on “Valley of the DoLS…. whither next?”

  1. Dr Prasanna de Silva

    In Newcastle, solicitors firms are specialising in challenges to DoLs and MHA in terms of Article 8 of the HRA. Involving not I<MCA's but RPR's (Relevant Person's Representative).. the cases of the articulate are taken up, not the majority who are either meek, unable to express an opinion or from BME.

    Then, the local Mental Health Trust is asked by court via Sect. 49 to prepare a capacity report fee of charge (compared to the lawyers and RPR's who get paid by the hour).. this request can occur even if the mental health trust is not providing services to the client. I think this is a money making scam, as there is conflation between being articulate (i want to go home) and actual capacity to understand risks of non-deprivation. It is also a huge drain on the legal aid budget.

    1. Belinda SchwehrBelinda Schwehr Post Author

      I can’t tell from your comment whether you think that the Mental Health Trust should be being paid, or that the lawyers shouldn’t! From my perspective, you can’t blame the lawyers for going where the market takes them – they’ve given up judicial reviews under the Care Act to all intents and purposes and gone for DoLS work because of the legal aid that exists for challenges to authorisations, and the lack of a permission hearing needed. Very often people detained under the Mental Health Act will be people who have no need to be there any longer, would have s117 status but are still in an ATU, stuck there for years because of a commissioners’ perspective that ‘there is no available care out there’ when what they really mean is that ‘there is no available care out there at the price we have been told to not go above, when looking’…To my mind, that is a stance that needs to be challenged, whether or not you are meek and fearful, or if you have a Warrior Mother from Hell behind you, as your RPR. I know it seems as if a person who can say I want to go home should not be being treated as incapax under the MCA, but in fact there is a lot of nuance as between what you have to understand in order to be seen as consenting, in legal terms, and what you might say that you understand if you have been aware that you have been detained in a psychiatric hospital and are offered freedom, but on terms, such as under a CTO. So I wouldn’t bash the lawyers, if it were me. Ending up in an ATU can happen to anyone whose parents have a crisis and need some respite, and the want of services in the community since the State gave up providing via housing law and just started buying services to deliver into houses owned by pension houses, is a non-understood scandal of our time, in a supposedly civilised society…

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