There’s been a lot of reaction to the recent deprivation of liberty safeguards in which the Court of Appeal ruled that a severely disabled individual, P, was not deprived of their liberty.
We’ve already run a response from Mental Health Alliance Dols lead Roger Hargreaves.
Below is a reaction from John Leighton, who has been employed by the Social Care Institute for Excellence to help care homes implement the Dols and the Mental Capacity Act (here’s a really useful guide he did for us on Dols for care homes).
But before looking at that, the case, under which Cheshire West and Chester Council won an appeal against an earlier Court of Protection ruling that P was in fact deprived of his liberty, has prompted much reaction, some of it adverse, on the web.
Social worker ermintrude2, who works as a best interests assessor, blogged on the ruling earlier this month. She picks up on the point – also made by Hargreaves – that the judgement makes clear that a judgement on whether a deprivation of liberty has taken place must be made relative to what is “normal” for someone with similar levels of disability.
As ermintrude2 puts it: “Someone who to all intents and purposes is under ‘complete and effective’ control by members of staff in a residential home is not deprived of his liberty because it is ‘normal’ for him to treated and regarded as such.”
She is very concerned about this and draws the conclusion that the judgement “sets the barrier for a deprivation of liberty so excessively high and so narrowly in scope, is remove that safeguard from a lot of people who may need it”.
Community care law researcher Lucy Series (who blogs as The Small Places) has also written a summary and critical commentary on the judgement and its implications. The summary also draws together some other responses, so is well worth a look.
Also, a detailed summary and commentary on the judgement has been published by Mental Health Law Online.
Anyway, here’s Leighton’s response to add to the mix:
Lord Justice Munby’s judgment reminds us of some perplexing questions.
It seems intuitively correct to say that a person should not be ascribed a detained status because of her condition. It seems equally sensible to say that a care regime that promotes the most ‘normal life’ for a person should not be regarded as a deprivation of liberty: after all, what exactly is depriving about it?
And yet we become uncomfortable when we consider the judgment alongside the level of abuses uncovered in care establishments run by Castlebeck and other similar scandals. Can it be that the most vulnerable in need of protection are to be denied that very protection simply because they are the most vulnerable?
The abuses uncovered in Rose Villa and Winterbourne View fit the type of arbitrary deprivations the Dols were intended to prevent. The abuses were clearly carried out in ‘bad faith’ and were beyond any reasonable purpose.
And so we are left in the middle of competing concerns. The Dols are not intended to apply to the majority of residents in care. It is difficult to see that their origin in HL v United Kingdom was envisaged to deem a mental disorder as depriving in its very nature. On the other hand, such inherent vulnerability requires protection, doubly so when the care situation necessarily calls for such a level of control.
The solution has not yet been found. The Dols are not quite right for the use of restraint in care regimes such as for P or, for that, matter the victims of Castlebeck’s abusive failures (remember, the Dols procedure was not invoked). Nor does it seem that section 6 of the Mental Capacity Act 2005 regarding restraint is sufficiently framed to prevent abusive practice.
The Dols offer the best protection we have for the time being, so it will be unfortunate to narrow their scope. In the meantime we might ponder how statute and its attendant guidelines protect children and children with learning disabilities from the use of physical force. Government has put in place guidance that covers adults though the cases of abuse suggest that there is something amiss in it or its application . We need to find a way to further accountability within the institution and require personnel to be formally authorised in the use of physical restraint.