Amid all the developments in parliament with the Mental Capacity Amendment Bill, and the focus of debates around the role of care home managers in any future statutory regime, it is perhaps easy to forget that tens of thousands of people are currently deprived of their liberty in a whole host of community settings.
In its report on reforming the Deprivation of Liberty Safeguards (DoLS), the Law Commission estimated (and it was undoubtedly an underestimate) that some 53,000 people were deprived of their liberty outside hospitals and care homes in 2017. According to Court of Protection data, the requisite steps to obtain authorisation from the Court of Protection was taken in a very small proportion of those cases, with an average of just under 200 a month being made in 2017 (ie a total of just over 2,300 for the year).
There are several reasons for the very small number of applications. In part, it is likely to be down to expense, because applications to the Court of Protection are, on the face of it, more costly than undertaking assessment procedures for DoLS. I would note, though, that my experience is that at least some of this expense in terms of staff time is expense that should already have been incurred through good care commissioning. In my experience, a repeated feature of the process of making applications for authorisation from the Court of Protection is that it is only when this is being undertaken that the relevant public body discovers for the first time that there is, in fact, no operational day-to-day care plan in place for the person at the placement in question, despite this being the most important document for the judge to consider. Considerable staff time is then spent ensuring one is prepared – but any public body (whether that be a local authority or clinical commissioning group) commissioning care should be aware of what, in fact, is being commissioned in its name.
Another reason for not making applications is that local authorities are entirely burdened down with the DoLS backlog, and community placements are, inevitably, seen as less important in the grand scheme of things. That may be true at some level, but I would note that the (laudable) desire to seek to move individuals with impaired capacity from institutions into the community means that we are often moving such them into arrangements which are, to all intents and purposes, care homes by any other name, save that they are outside the scope and (even the notional oversight) of DoLS.
A third reason is a reluctance to seek to make applications in relation to domestic settings, out of an unwillingness to consider situations such as that of Steven Neary as a deprivation of liberty. While that reluctance is entirely understandable, so long as the definition of deprivation of liberty by Lady Hale in the Cheshire West case stands, there is no alternative to making such applications.
A final reason, perhaps, is a lack of confidence in how to make applications. That is where attending Community Care Live will help where I am holding a dedicated session looking at the law, practice and, above all, what it is the judges want to see when you make an application.
Alex Ruck Keene, barrister at 39 Essex Chambers, will be speaking on deprivation of liberty in the community at Community Care Live London, on 25 September at 9.45am. He will also be delivering a refresher on best interests decision making at 11.30am on the same day. To reserve your place on either or both sessions, register for Community Care Live and select your chosen legal learning session to attend. There is a fee of £29 plus VAT for each legal learning session you attend. The vast majority of sessions at Community Care Live remain free to attend.