‘The simple idea that has shaken adult social care to its foundations’

By Lucy Series, research associate at Cardiff Law School

The Supreme Court’s Cheshire West judgment is based on a simple, but profound, idea: that a person with a disability who is subject to restrictions that would constitute a deprivation of liberty for a person without a disability, is entitled to the full protection of Article 5 of the European Convention on Human Rights (ECHR): the right to liberty and security of person. This simple idea has shaken adult social care to its foundations in the past six months.

Some commentators criticised the Supreme Court ruling, handed down by Baroness Hale, because they felt it departed from ‘common sense’. Others celebrated a decision they felt would better protect people’s human rights through independent assessments of capacity and best interests, independent advocacy and access to the Court of Protection.

In the weeks that followed, blogs and discussion lists were flooded with questions about Lady Hale’s ‘acid test’ for deprivation of liberty – that to be deprived of their liberty in care settings, a person must be subject to continuous supervision and control and not free to leave. How continuous and controlling must ‘continuous supervision and control’ be? What does ‘free to leave’ mean? There will still be borderline cases and no doubt further litigation on these issues.

It is clear that vastly more people than hitherto are entitled to Article 5 safeguards. A survey by the Association of Directors of Adult Social Services conducted in the wake of the Supreme Court ruling estimated that in 2014-15 there might be as many as 138,165 referrals for authorisation under the Deprivation of Liberty Safeguards (Dols) in care homes and hospitals. The survey also found that as many as 28,605 further authorisations might need to be sought directly from the Court of Protection for settings, like supported living, where detention cannot be authorised under the Dols.

The findings of Community Care’s investigation published today support Adass’s prediction of a sharp increase in Dols activity following Cheshire West. The original government assessment of the impact of Dols was based on a much narrower interpretation of deprivation of liberty, and predicted only 21,000 applications in the first year (2009-10), falling thereafter. Small wonder that local authorities are struggling, and that Community Care has found that the proportion of breached statutory timescales for Dols assessments rose from 2% in 2013-14 to 50% in 2014-15.

Adass and the Local Government Association have warned that this was taking money from social care budgets, adding that ‘if funding for extra assessments is not resolved, the significant impact on budgets will have an unavoidable and hugely damaging impact on crucial services that protect the most vulnerable people in our society’.

Adass’s predictions of additional Court of Protection applications, covering settings other than care homes or hospitals, would have more than doubled the overall number it receives every year, and represented a forty-five fold increase in its welfare work.  After Cheshire West, Sir James Munby, president of the Court of Protection, handed down guidance on a new ‘streamlined’ authorisation procedure for these cases in X & Ors. But there are concerns that this risks amounting to a ‘rubber stamp’, as – unlike the Dols – there is no requirement for an independent best interests assessment, nor independent advocacy, or non-means tested legal aid.  One of the most shocking outcomes of Cheshire West is that more people may have to pay, out of their own savings, for their detention to be authorised. Interestingly, Community Care found only a very small increase in applications to the Court of Protection to authorise deprivation of liberty; one wonders whether unlawful detentions are still widespread in supported living.

Given this fallout, was the Supreme Court wrong to decide as it did? No doubt some people reading this will think that it was. Yet the outcome seems inevitable if a universal test of the meaning of deprivation of liberty was to be adopted. There is a legal Latin phrase that runs Fiat justitia ruat caelum (let justice be done, though the heavens may fall), and the heavens do seem to be falling, at present, in the land of the Dols.

Although I have tremendous sympathy for those trying to cope with the aftermath of Cheshire West, I do not believe it is fair to blame the Supreme Court for the heavens falling. The writing has been on the wall for Dols for a long time now. Lady Hale’s ‘acid test’ was based on the formulation of deprivation of liberty in HL v the United Kingdom, the landmark Bournewood case that led the government to legislate for Dols. This formulation has been followed in European case law – most notably in Stanev v Bulgaria (2012).  The previous government, which introduced Dols, was warned by Angela (now Baroness) Browning that the Dols impact assessment was likely to be incorrect, following the ruling in JE v DE & Ors (2006). It was also warned about the danger of excluding supported living from the Dols.

The resource intensive nature of the Dols and associated litigation derives, in part, from the complexity of the schedules to the Mental Capacity Act that brought the Dols into force. The government’s decision to ask the Law Commission to review them in their entirety is long overdue.  The shortfall in funding in adult social care is a longstanding and much wider problem than the Dols. The lack of proper safeguards and the legal aid situation in supported living are the making of the government not the Supreme Court.  Many people are sceptical about the benefit brought by the Dols, yet my research, research by Bristol University, and evidence to the House of Lords Committee on the Mental Capacity Act suggests that independent scrutiny can achieve real benefits. The Dols are very far from perfect, and it is doubtful whether they comply with the ECHR, but they are certainly better than no safeguards at all.