By Roger Hargreaves
The Mental Capacity Act Deprivation of Liberty Safeguards (Dols) were introduced in April 2009 to make English and Welsh law compatible with Article 5 of the European Convention on Human Rights (the right to liberty and security of person).
However, the critical term “deprivation of liberty” was defined only by case law, leaving it open to a very wide range of interpretations; indeed, when researchers gave real-life case examples to a group of professionals, agreement between them was little better than chance.
Not surprisingly, there has been enormous variation in practice, and the House of Lords select committee on the MCA, in its report published in March, noted that “many witnesses called for a statutory definition to provide greater clarity and certainty”.
Acid test for deprivation of liberty
Their Lordships rejected this call, but just six days after they reported the Supreme Court, somewhat unexpectedly, provided greater clarity and certainty anyway. In its judgement, led by Lady Hale, on the Cheshire West and P&Q cases, the court stripped away all the layers of complexity and reduced the definition to a one-line “acid test” – that the person must be “under continuous supervision and control and not free to leave.”
The consensus is that this will drastically increase the number of applications for safeguards, either through Dols for people in hospitals and care homes, or through an order from the Court of Protection for people in other care settings. Mark Palethorpe of Cheshire West Council warned that the consequences of the judgment for health and social care nationally – both financially and in terms of care processes – would be “huge”. On 8 May, James Munby, President of the Family Division of the High Court, said that it was becoming clear that the number of people forcibly deprived of their liberty on mental health grounds had been “vastly” underestimated, and that councils could face an “immense burden” from the cost of the extra legal cases.
But will this be so? In many respects the Supreme Court has put the law back to where it was in 2004, after the European Court of Human Rights’ judgement in HL v the United Kingdom (the Bournewood case).
But when the government then asked NHS Trusts to look for patients who were deprived of liberty, they could find hardly any. More recently, the history of Dols has been of very widespread under-compliance and of sluggish responses to changes in case law. Applications have been fewer than forecast, with some areas hardly using the safeguards at all, and the Cheshire West Court of Appeal judgement in November 2011, which introduced the concept of “relative normality”, should have resulted in fewer still but in fact made little difference.
So why should things change now? Many (although not all) local authorities have experienced a sudden spike in Dols applications following the judgement, to the point where some are struggling to meet time limits, but this might be no more than a short-term reaction to all the publicity.
Less scope for ambiguity in the law
However, there are good reasons to think that it will no longer be possible to turn a blind eye to the law. The new definition is much less ambiguous than before, giving much less scope for different interpretations.
The Care Quality Commission briefing on the ruling says that “it is still not clear what exactly “continuous supervision and control” means”, and some commentators have suggested that we will have to wait for yet more court judgements on this question. But the fact is that Lady Hale’s “acid test” is a just verbatim restatement of the central conclusion of the HL judgement, and so has been part of the case law for ten years and has been relied on in many subsequent cases.
In any event, the precise meaning of these words is less important than the other elements of the judgement. Firstly, it strips away most of the “ifs”, “buts” and “on the other hands” which had accumulated from successive cases and which required assessors to balance long lists of factors for and against. In particular, the person’s own response to their situation – whether they are compliant, objecting, happy or unhappy – is no longer a factor.
Secondly, “what it means to be deprived of liberty must be the same for everyone” so the standpoint must be that of the ordinary person in the street – if they themselves were in this situation, would they feel that they were deprived of their liberty? This rules out narrow interpretations of “continuous supervision and control” since the ordinary person in the street would be unlikely to see any material difference between, say, being supported one-to-one or just being observed in-line-of-sight.
This all adds up to a test which is much more objective and which can be applied by an external observer on the basis of what they can establish on a visit, without in-depth knowledge of the individual or their overall care plan. Up to now, enforcement by the CQC has not been practicable, as an inspector’s view was very likely to be different to that of a best-interests assessor with the time to take the whole wide range of factors into account. All relevant factors will still need to be considered, but it should now be much easier for a visiting inspector (or solicitor, or independent mental capacity advocate) to spot a likely deprivation of liberty.
And if the issue is finely balanced, Lady Hale made it clear that, where the person is extremely vulnerable, any discretion must then be exercised in favour of applying a safeguard, as “they need a periodic independent check on whether the arrangements made for them are in their best interests”. The Dols code gives the message that authorisations are a last resort and should be avoided wherever possible by modifying the person’s care plan, but this judgement puts the emphasis on vulnerability and the need for protection rather than the precise nature of restrictions, and will put the onus on care providers to justify not making applications where the criteria could be met.
What the judgement does not change
What the judgement does not change, however, is the need to comply from the outset with the basic principles of the Mental Capacity Act. A hospital or care home can apply for a Dols authorisation only where “it appears to it that the person meets all of the six qualifying requirements”, which it can’t properly say unless it has conducted its own assessments, and in particular has assessed the person’s capacity to consent to the care arrangements, and whether, if they lack capacity, they are in the person’s best interests.
This in turn requires it to follow the best-interests process in Section 4 of the Act, consulting as far as possible with the person themselves and relevant others, and applying the “least restriction” principle in Section 1.
There are reports of some care providers “covering themselves” legally by making blanket applications for everyone in their establishment, thus passing the buck to the local authority’s assessors; but the law doesn’t permit that, especially where the provider is initially detaining the person on its own authority by giving itself an urgent authorisation. Even if the establishment’s regime appears to meet the “acid test”, it doesn’t follow that every resident lacks capacity to consent to it, or that it’s in every resident’s best interests to be subject to it.
Roger Hargreaves is now retired from social work but still acts on a voluntary basis as lead for the Mental Health Alliance on the Deprivation of Liberty Safeguards. This article is however written in his personal capacity.