‘Why the principles of Bournewood and Cheshire West must shape Dols reform’

By Gary FitzGerald

Most people tend to think about imprisonment in terms of jail sentences meted out by courts through the justice system. They are less likely to be aware of the detentions within social and health care that affect thousands of people in vulnerable situations. And they are even less likely to know their rights when they, or a loved-one, is the subject of such detention.

In its landmark 2004 judgement in the Bournewood case (HL v the United Kingdom), the European Court of Human Rights concluded that the UK did not have the necessary procedural safeguards to protect people who lacked capacity to consent from arbitrary detention. This was contrary to Article 5 of the European Convention on Human Rights.

Why the Dols were introduced

It is important to understand the principle that this underlined. It involved a man with severe disabilities who was ‘informally’ detained in hospital under the common law doctrine of “necessity”. The European Court ruling re-affirmed a basic tenet of human rights law, that there should be effective procedural safeguards to avoid arbitrary deprivation of liberty. This was the basis for the Deprivation of Liberty Safeguards (Dols), enacted in 2007 as an amendment to the Mental Capacity Act 2005, and implemented two years later.

However, it is fair to say that the Dols have not operated as effectively as anticipated, with a House of Lords select committee concluding in 2014 that they should be replaced on the grounds that they were failing to protect many thousands of people being deprived of their liberty.

Law Commission review

While the government initially rejected the committee’s view that the Dols were “fundamentally flawed”, it eventually decided to ask the Law Commission to review the scheme in September 2014. This was made inevitable by the impact of the Supreme Court’s judgement in the Cheshire West case, in March 2014, which has led to a tenfold increase in Dols case numbers. This judgement stated that people with disabilities should not face different standards for what constituted a deprivation of liberty than people without disabilities. In judgement Baroness Hale stated:

The fact that my living arrangements are comfortable… should make no difference. A gilded cage is still a cage.”

This confirmed a second basic tenet that everyone should be treated equally in such situations.

Fundamental principles

These are fundamental principles, and they need to be uppermost when we review the Law Commission proposals to reform the law on deprivation of liberty and last month’s Department of Health response to this.

For example, the commission suggests that detention in care homes, supported living and shared lives accommodation would need immediate approval from an approved mental capacity professional (AMCP) independent of the provider. But it says a hospital detention would not (and could occur for 28 days without independent validation) because hospitals usually involve a temporary stay.

However it is difficult to see how this argument is sustainable against the ‘Bournewood principle’ of providing procedural safeguards against arbitrary detention.

Perplexing response

But it is the Department of Health’s response to the Law Commission proposals, which is the most perplexing.

Instead of evaluating the commission’s proposals against the Bournewood and Cheshire West principles, it established three new tests:

1. Realising real benefits for the person and/or their family.
2. Good use of public funding, and
3. Making it easier for the person or their family to engage with the scheme and realise the outcomes they would wish.

These ‘tests’ are so far removed from the actual issues surrounding the Dols that it is hardly surprising that the DH concluded that ‘elements of the Law Commission’s proposals do not meet these three tests’.

Missing the point

But an even more fundamental aspect, missed by the DH, is that a person who lacks mental capacity to make decisions about their care and residence is often unlikely to be able to ‘engage’ with the process. Of course, the Dols scheme, and the Law Commission’s proposals, include mechanisms to help overcome this difficulty, including the roles of relevant person’s representative (RPR) and, where applicable, independent mental capacity advocate (IMCA).

But these are unlikely to overcome someone’s difficulties in  directly expressing their wishes. The department’s response seems to ignore the impact of lack of capacity on the practical ability to engage with the Dols or a similar process.

It is of course critical to reinforce the five principles of Mental Capacity Act principles – the presumption of capacity, supported decision making, the right to make an unwise decision with capacity, best interests decision-making and the least restrictive intervention.

Spectrum of need

But these have to be considered against a background in which the MCA addresses people with a spectrum of needs, from those with minimal challenges in making decisions all the way to those who have a complete inability to express current wishes or desires. This is the whole point of the Bournewood and Cheshire principles, and yet the thrust of the DH response appears to be shaped by a perception that those impacted by Dols decisions would be ‘more comfortable’ with an approach rooted in ‘normal’ health and care structures rather than a legal approach, and would be therefore more likely to engage with the scheme.

Such an approach does not address the legality of the detention or the ability to appeal to an independent arbiter against the decision. It is this that makes the department’s ‘three tests’ questionable. Certainly, there are many practitioners, dealing with the inherent challenges of Dols who would equally struggle with such perceptions, perhaps considering them disconnected from the reality of day-to-day intervention.

Abuse by close family 

The department also seems reluctant to acknowledge that much abuse is perpetrated by close partners and families – in contrast to the government’s position on domestic violence. In relation to the Law Commission’s proposal to extend its scheme to deprivations of liberty in domestic settings, the DH states that ‘many citizens will be keen to avoid what may be perceived as unnecessary and obtrusive state involvement in their private and family affairs’.

It really is time that the domestic abuse philosophies are incorporated into adult protection. These double standards have gone on for too long.

Reluctance to legislate

Finally, while the DH has said it will await the next set of Law Commission proposals before deciding on whether there should be legislative change, its interim response implies a reluctance to do so. The department acknowledges the  ‘difficulty’ in requiring practitioners to make a legal judgement as to whether or not someone is being deprived of their liberty.

But it then says that part of the answer to this may be in giving reassurance that no action will be taken against them, provided their decision is well-reasoned and recorded. That is surely the wrong emphasis, particularly for the person deprived of their liberty. It also makes it difficult to have confidence in the argument that the approach to deprivation of liberty should be influenced by ‘cultural change’ rather than legislative directive.

Lack of evidence

It is doubtful if such an approach would be advocated as an alternative to child protection legislation but, equally importantly, there is no evidence that such an approach has worked to date.

There is no doubt that deprivation of liberty is a challenging issue, but we have to maintain the focus on the Bournewood and Cheshire West judgements.  (The Mental Capacity Act principles are fully compatible with these). Of course systems need to be cost effective and practicable. But firstly they have to be fit for purpose, and that means having effective procedural safeguards to avoid arbitrary deprivation of liberty.

Gary FitzGerald is chief executive of Action on Elder Abuse.