By Lucy Series
During its consultation on responding to the European Court of Human Rights’ Bournewood judgement in 2005-6, the government made a decision which would eventually prove fatal for the Mental Capacity Act 2005 Deprivation of Liberty Safeguards (Dols). Several bodies – including the Commission for Social Care Inspection (CSCI), the Mental Health Act Commission (MHAC) and the British Psychological Society – argued that the Dols must include modern care settings such as supported living and extra care housing, as well as care homes and hospitals.
These concerns were not addressed in the government’s consultation response; apparently it was considered ‘less likely that severe restrictions would be placed on people in supported living arrangements, who would tend to lead more independent lives’. Whilst this may be true of many supported living services, it cannot be said of all.
This was an especially odd conclusion less than a year after CSCI found serious abuse of many adults in supported living services in Cornwall in circumstances amounting to unlawful detention.
Shortly after the Dols came into force in 2009, the Court of Protection found a deprivation of liberty in a supported living setting, and held that the only way to bring these situations into compliance with Article 5 of the European Convention on Human Rights (ECHR) was to make an application to the court, which must be reviewed at least annually (Salford City Council v BJ, 2009). This has very significant resource implications: in research on court applications during 2013-14, we estimated that these cases cost local authorities around £12,000.
The difficulty of dealing with large numbers of court applications was clearly an influential factor in the Court of Appeal decision in P and Q and other cases before the Supreme Court’s ‘acid test’ ruling in Cheshire West.
Cheshire West impact
Following Cheshire West, the Association of Directors of Adult Social Services and the Local Government Association estimated that as many as 31,000 people might be deprived of their liberty in supported living services. If correct, and if legal costs remained at the levels we found in our study, this could represent over £300m in legal costs alone. It would more than double the total number of applications the Court of Protection receives in a year, and increase the number of welfare related applications – which absorb more time and resources than property and affairs cases – by a factor of more than 60. Clearly, if this flood materialised, no part of the system – from local authorities, to the court itself – could cope.
Impossible for councils to bring court applications
Even if the government had brought supported living and similar services within the Dols framework under Schedule A1 to the MCA 2005, compliance with Cheshire West would have been challenging given the backlogs we are already seeing with ordinary Dols applications. However, it will be impossible for local authorities to find the resources needed to make tens of thousands of court applications.
I am not surprised that Community Care found that the anticipated flood of court applications has not materialised. Their findings echo our study on court applications – there are wide variations between local authorities in use of the Court of Protection, with a small number making up a large proportion of applications, and many not making any at all.
Freely admission of unlawful detention
What is perhaps surprising is that local authorities freely admitted to Community Care that they had identified thousands of instances of cases that might be a deprivation of liberty and should go to court, but they had not applied to the court. In other words, they freely admitted that thousands of people in their care were being unlawfully deprived of their liberty.
The President of the Court of Protection, Sir James Munby, anticipating a flood of applications, set out a new ‘streamlined procedure’ for managing them in two judgments known as Re X (Deprivation of Liberty). This week the Court of Appeal handed down a judgment saying that the President did not have the requisite powers to introduce procedural changes in this way. The Court of Appeal judges expressed sympathy with the President’s intentions, but held that if the Re X judgments on the streamlined procedure had been legally binding, they would have held that the procedure was unlawful.
Lack of independent representation
The Court of Appeal expressed concern that the ‘streamlined’ procedure did not provide any independent representation for the individual, comparable to an independent mental capacity advocate (IMCA) or a relevant person’s representative (RPR) under the Dols. The court would have to base its decisions on information supplied by the applicant, who would have a conflict of interest as in the majority of cases they would presumably be of the view the deprivation of liberty was justified. Relying on the relevant person to raise objections was, they felt, inappropriate, given that they might have capacity issues and might have difficulty protecting their own interests.
Since the Court of Appeal has held that the CoP did not have jurisdiction to determine the procedure as it did in Re X, and that the procedure which the court devised did not meet the requirements of Article 5 of the European Convention on Human Rights, the whole deprivation of liberty process is yet again bedevilled by massive uncertainty.
The Court of Appeal decisions leave unanswered challenging questions about how local authorities and the courts can deal with these supported living cases. It is likely that the relevant person will now need to be made a party to the court application, which in turn means they will need some form of legal representation, which in turn will need to be funded. But people who are deprived of their liberty outside of the Dols framework are not entitled to non-means tested legal aid. The House of Lords Committee on the Mental Capacity Act raised concerns about this, but the government chose not to provide legal aid on the same terms as the Dols for people who are deprived of their liberty in these settings. We have already seen one published instance of a case where the relevant person’s savings ‘would soon be consumed in legal costs’, and there are likely to be others in unpublished cases. This raises real moral dilemmas for local authorities and courts, if they know that the court process may deplete the relevant person’s financial resources. It may also be very difficult to find sufficient numbers of litigation friends for people in Re X cases.
Human rights violations
Most importantly of all, however, people who are deprived of their liberty in settings such as supported living are potentially at greater risk of human rights violations than those who fall within the Dols framework. Supported living settings are not subject to on-site inspections by the CQC, meaning detention in these settings violates international legal obligations to monitor places of detention. Local authorities clearly are not making court applications in many cases, often for understandable reasons. Where this happens there are no Article 5 safeguards in these settings. Should the relevant person or their family object to detention in supported living, they may incur very significant legal costs if they seek to challenge the detention. It is hard to see why somebody who is deprived of their liberty in supported living should not benefit from the full protection of the Dols, when we know that serious disputes can arise in these settings. The whole purpose of Article 5 is, as it was put in the Bournewood case, to offer protection against ‘misjudgments and professional lapses’. There is a high risk of misjudgements and professional lapses in the current system.
New framework needed
The only solution to these problems is to revise and replace the Dols with a framework which extends to settings such as supported living, so that people’s human rights can be protected without such a resource intensive process as a court application. Fortunately, the Law Commission is bringing forward the deadline for their work on revisions to the Dols so that a report and draft Bill will be published at the end of 2016. Although there is a glimmer of light on the horizon, there is a strong possibility that the system of safeguards around deprivation of liberty will become even more clouded in controversy in the meantime.