A recent Court of Appeal judgement was described as the death of the deprivation of liberty safeguards. However, best interests assessor Lorraine Currie disagrees, and says Lord Justice Munby’s ruling provides useful tools for practitioners.
Over the last two years a wealth of case law has issued forth from the Court of Protection concerning the deprivation of liberty safeguards (Dols). In some cases, judgements have added to the definition of a deprivation of liberty (Dol), while in others, they have muddied the waters.
[Update your Dols knowledge at Community Care’s forthcoming conference on safeguarding adults at risk.]
The recent Cheshire West and Chester Council case from the Court of Appeal does both, and some are seeing it as the death of Dols, maybe even the final proof that the safeguards don’t work.
This case concerns a 39-year-old man with cerebral palsy, Down’s syndrome and a history of cerebral vascular accidents, living in local authority care in a bungalow described as large and spacious. He requires a high level of care, not least due to issues managing his continence, involving on occasions restraint to remove material from continence pads or faeces from his mouth.
He presents with five behaviours that challenge the service but the restraint used in relation to continence is the most intrusive of all the techniques used.
No deprivation of liberty
The original court decision concluded that this level of interference amounted to a deprivation of liberty. On appeal, Lord Justice Munby concluded that it did not because:
• His life is as normal as possible
• The care plan is a positive aspect of his life
• The original Judge (Baker) did not compare his life with the life he would have been living given his disabilities in a normal family setting
• There is a strong sense of normality about his life
• His life when he goes out is as normal as possible due to the support he is given
• Restraint is something which his own mother would do if he lived at home; although he is strapped into a wheelchair this is comparable to a child in a buggy
• The finger sweep of his mouth is what any attentive parent would do
• The concrete situation in which he is living is as normal as it can be for someone in his situation
The law demands that three conditions must be satisfied for a deprivation of liberty, namely:
1. An objective element of confinement in a particular restricted space for a not negligible time
2. A subjective element of lack of consent
3. The Dol must be one for which the state is responsible
Points 2 and 3 were not disputed in this case and the only issue was whether the objective element was met.
The judgement points out the difficult task of assessing a deprivation of liberty case. Munby says: “The process of classification into one or other of these categories sometimes proves to be no easy task, in that some borderline cases are a matter of pure opinion.”
This reflects the experience of best interests assessors (BIAs); only a few cases fall at the extreme edges and are easy to classify as a deprivation or not.
Munby introduces the idea of context and relative comparator. We are not to compare the person we are assessing (P) with the person on the Clapham omnibus, but with “an adult of similar age with the same capabilities and affected by the same condition or suffering the same inherent mental and physical disabilities and limitations”.
Is this not dangerously close to encouraging a view that ‘all people with learning disabilities do x, or need y’? Is it not the obverse of the Mental Capacity Act principle of not assessing capacity based on age, appearance, disability, condition or behaviour?
Even though I don’t like the phrase “relative comparator”, I believe that, as a practitioner, I would be looking at the reality of the situation in terms of P’s limitations. I would be looking holistically, in a person-centred way, at whether the restrictions in place amount to a deprivation.
The judgement also clarifies what it means if P is “required to live” somewhere. The fact that a person is provided with residential accommodation does not mean it is necessarily a deprivation of liberty. It is essential to consider if P has somewhere else to go and someone they want to live with but are prevented from doing so by a public authority.
As BIAs, we consider whether P has a viable alternative. This is part of what we weigh in our decision making when trying to determine whether a Dol is occurring. Similarly the confirmation that a lack of consent to being accommodated is not in itself enough to evidence a deprivation confirms our approach.
Now we address an issue we thought had gone away: “purpose, motive and intention”. We had been told in previous court decisions that purpose was not relevant when considering a Dol.
Purpose involves looking objectively at the reasons for the placement. BIAs predominantly are social workers or nurses, so we ask: ‘why is this person here?’; ‘what brought about the assessment of capacity and best interests decision that they needed residential care?’; ‘how often have they been home and did care break down?’; ‘what else has been tried?’.
Purpose seems to mean looking at these reasons and as such is an integral part of a best interests assessment.
I think this resonates with our experiences over the two years of Dols. Good care planning and proper application of the Mental Capacity Act in general leads to better, more robust and more defensible decision making.
The judge describes reason and purpose as objective tests and relevant considerations whereas motive and intention are subjective and of limited use except that improper motives or intentions can make a situation into a deprivation whereas good intentions are neutral.
He says: “Bad faith, deception, improper motives or other forms of arbitrary behaviour may have the effect that what otherwise would not be a deprivation of liberty is in fact, and for that very reason, a deprivation”.
The end of the judgement is an excellent summary, useful for BIAs and others when attempting to interpret a possible Dol:
1. Start with the concrete situation, taking into account type, duration, effects and manner of implementation of any measures, according to degree or intensity
2. Deprivation must be distinguished from restraint
3. Context must be taken into account
4. Lack of capacity to consent to the living arrangements alone does not amount to a DoL
5. Consider the reason why someone is placed where they are or treated as they are and the purpose of the placement but subjective motives or intentions have limited relevance. Good intentions are neutral but improper motives might turn a situation into a deprivation
6. Evaluate and assess the relative normality of the concrete situation taking account of the person’s particular capabilities
7. The relative comparator is not the ordinary adult on the Clapham omnibus but an adult the same age with the same condition, disabilities and limitations.
Does this decision constitute the death of Dols? I think not. It raises serious questions about the concept of normality but it provides tools for BIAs to use and confirms the approach to assessing a Dol most us are using already.
Lorraine Currie is a best interests assessor working in the West Midlands.