By Belinda Schwehr
These questions have been raised with Belinda through her legal training sessions and webinars.
The legal problem
What is the legal problem, in a nutshell, concerning deprivations of liberty outside the DoLS framework?
In settings such as supported living, Shared Lives houses, children’s homes and residential schools, and maybe even in day care, the State (in the shape of social services and the NHS), will often and inevitably be depriving incapacitated people of their liberty. This will typically be justifiable and prudent, in terms of an appropriate regime of care, albeit one amounting to a state of confinement for a non-negligible period of time, and in a planned way, rather than in an emergency.
Human rights law holds that this conduct, if imputable to the State, is only lawful if certain procedural safeguards are available in the national law of the signatory country. But in England and Wales, the Deprivation of Liberty Safeguards (DoLS) have only ever covered care homes and hospitals. While it’s true that nobody’s likely to sue the provider or the purchaser if the person’s relatives or supporters are in favour of the regime – and they will be, of course, if the regime is benign – that makes no difference to the illegality of the conduct. In some cases where it’s happening, the regime may actually be substantively unnecessary or disproportionate. It may be being done to someone who does not actually lack mental capacity, but who can’t do anything about their effective imprisonment, without help.
Since the landmark Cheshire West judgment in March 2014, the concept of what sort of care regimes amount to deprivation of liberty, and therefore need legal scrutiny to be lawful, has been markedly broadened. This means that the rather limited DoLS regime is proving unworkable and councils can’t afford the fees or the work involved in getting people who fall outside the remit of DoLS to the Court of Protection for the necessary individual welfare orders.
Risk of damages
Are councils and providers at risk of damages claims if they do nothing about the ‘formal’ legal requirements for scrutiny?
Yes. Although the Court of Protection has jurisdiction to condone technical wrongdoing and will do so if there is nothing shockingly ignorant or cynical about it, there is no presumption that it will always see the conduct as benign.
The judge in the case of Essex Council v RF, PN, JN & CP , who found the council had unlawfully deprived a 91-year-old man of his liberty, noted the important difference between ‘procedural’ and ‘substantive’ breaches of the right to liberty. In the case of a procedural breach, the authority’s failure to secure authorisation for the deprivation of liberty or provide a review of the detention would have made no difference to P’s living or care arrangements; in the case of a substantive breach P would not have been detained, if the authority had acted lawfully. The level of damages for substantive breaches of the right to liberty is between £3,000 and £4,000 per month.
Do you think that the care providers should be the ones bringing the necessary proceedings, or the purchasers (ie the State bodies who are commissioning the deprivation of liberty in the discharge of their statutory functions)?
It is my firm view that in all publicly funded non-residential care package cases, it is the State (ie the body owing the duty to the client) that is legally responsible for getting the legal scrutiny organised, because it is commissioning the care, and primarily responsible for organising a lawful ‘appropriate’ response to eligible assessed needs (in adults’ services) through statutory duties – and legally responsible in children’s services law, too, under sections 17, 20, 25, 31 and 47 of the Children Act (or NHS legislation), too.
To my mind, expecting the application to be made by the entity which is primarily responsible for the deprivation of liberty is consistent with the most recent case in the area, Staffordshire v SRK. This looked at the private deputy’s obligation to obtain the necessary authorisation – in a case where the detention of the individual was wholly justified and appropriate and organised privately.
I acknowledge that providers of regulated care count as human rights public authorities under the Care Act in respect of council-arranged care, and as such are as liable as the council, and could also be sued for wrongful imprisonment in English common law. But human rights law has never been about holding companies to account for State wrongdoing, and it flies in the face of common sense to imagine a provider being found liable without its seeking an indemnity from the State body that was paying for the care and doing the care planning!
In privately arranged care home placement situations, the council will have become involved through being the supervisory body actually signing off the DoLS, so should be in a position to get the matter to court, if the ongoing legality of the situation is seriously disputed.
A harder question, I think, is a privately organised home care situation, where a provider has been paid by a son or daughter to deprive the parent of their liberty in their own home; a welfare order is therefore required, and the council is not involved. After SRK, looking at the positive duties of the council to keep an eye out for this sort of thing, it’s possible that the law is that no home care organisation should accept a contract for such care, without referring it to the council’s adult safeguarding service, so that a welfare order is put in train!
The austerity excuse
Is austerity a lawful excuse for not making the applications?
There is no doubt in my mind that the question will have been considered at the highest level. Niall Fry, the then Department of Health lead on the Mental Capacity Act, has gone as far as anyone can in this regard, in a letter to local authority DoLS leads in January 2015 about the consequences of Cheshire West. He said: “We do not expect that local authorities who are following national DH, ADASS [Association of Directors of Adult Social Services] and CQC [Care Quality Commission] guidance (and who have a plan in place for responding to the Supreme Court judgment in a way that makes clear that paramount importance of the well-being of vulnerable individuals) should be unfairly penalised.”
But as someone who subscribes passionately to the idea of the rule of law, in a civilised society, I can’t conceivably recommend that councils don’t make the applications, just because of the cost, or the fact that the application will have to be stayed, when I know that councils do have the funds in their reserves.
As was said earlier this year by the Court of Protection in the case of Birmingham City Council v D: “The protection of the human rights of those with disabilities or the vulnerable members of our society, most especially in respect of the protection afforded by Article 5 (1), is too important and fundamental to be sacrificed on the altar of resources.”
At least some local authorities must feel the same because they are judicially reviewing the secretary of state for health over the costs of complying with Cheshire West..
The Department of Health should be giving publicly available guidance about what to do, but it just isn’t! There is also no guidance from the CQC about what to do about the non-care home cases.
There is no guidance from the Association of Directors of Adult Social Services about how to prioritise some cases beyond others. Beyond the public’s gaze, the sector’s leadership may well be recommending a go slow, but have no legal authority to do so (ADASS being a charitable body and a member’s association and the Local Government Association being a private limited company) and no proper lawyer would advise that it is acceptable to just wait to be sued.
The proper thing to do is to commence the applications and hope for the Court of Protection’s rational leniency, because the MCA enables a court to absolve a party from incapacity related wrongdoing; damages for a breach of human rights are never an automatic response, being saved instead, for when they are needed to make up for real injustice.
What typifies the priority cases, then?
In pre-Bournewood days, we worried about the confinement of capacitated or strongly objecting people. We knew, even pre-MCA, that this must be wrong, because we’d learned somewhere that we had no powers to foist care on unwilling recipients. But we never worried about doing it for incapacitated people if it was necessary for those people’s safety. We all just made wrong assumptions about inferring incapacity from a label, such as ‘learning disabled’, or ‘dementia’. Thankfully, we have improved (somewhat) about that.
Secondly, we worried about not being assertive enough or doing enough for incapacitated people who were very stroppy and apparently articulate about not wanting our help – because again, we knew, that it must be wrong to take ‘No’ for an answer, when what they were saying was obviously delusional. Where would society have been, if we’d just walked away?
Finally, some of us worried about whether the changes we were making to the lives of incapacitated people who didn’t seem to be objecting were really for their benefit, or for ours. We knew that government policy for saving money by getting a different budget to pay for housing, for instance, doesn’t always make things legal – for example in the case of foisting direct payments and tenancies on people who could not conceivably understand the consequences, in the name of normalisation or personalisation.
These concerns stemmed from traditional social work values, and where they were absent it was on account of legal illiteracy. These values are still, really, all you need, in order to prioritise which cases you throw your resources at in terms of legal work and safeguarding. These are the groups of people who would be my recommendations for prioritising scarce resources:
- people who are telling you that they do have capacity to make decisions about care regimes (or whose relatives are telling you that that person really does);
- people who are actively trying to get out of a facility (or whose relatives are trying to get them out) – and
- people whose histories will generate a coroner’s enquiry into system failure if a state body knowingly lets them refuse services
The vice-president of the Court of Protection, Mr Justice Charles, has said that he would be joining government departments into any new cases, as parties, before staying the proceedings for want of a litigation friend or proper representative to underwrite the essential ‘participation’ of the person concerned, in order to make the backlog of cases visible. This means the judiciary is begging councils to make the applications for deprivations of liberty outside of the DoLS, in order to make the government respond. Councils do therefore need to make the applications and pay the fees; elected councillors need to be told by the monitoring officer – whose role it is to ensure the council acts within the law – that it is a legal duty. It is each council’s monitoring officer’s duty to be that clued-up, even if this is not their field of legal expertise.
All councils – whatever their politics – need to support the four councils who are judicially reviewing the Department of Health for not funding a solution. The sector’s leaders need to get MPs to ask questions in the House of Commons, and the sector needs to show commitment to the rule of law.
This is the first in a series of three linked articles on the law relating to deprivation of liberty from Belinda Schwehr that will be published over the coming weeks.
Belinda Schwehr, Care and Health Law
Tel: 01252 725890