Eleanor Roosevelt, 1958

'Where, after all, do universal human rights begin? In small places, close to home -- so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person... Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.' Eleanor Roosevelt, 1958

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Monday, 18 April 2011

Do the DoLS provide an Article 5 compliant right of appeal?

Article 5(4) of the European Convention on Human Rights provides that:
‘Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.’
A person deprived of their liberty under the deprivation of liberty safeguards can exercise this right by making an application to the Court of Protection under s21A Mental Capacity Act 2005. Under s21A the court may consider whether the qualifying requirements for deprivation of liberty authorisation are met (see s12 of Schedule A1), the duration of the authorisation, the purpose of the detention and any conditions that authorisation is subject to. The Court of Protection has the power to vary or terminate the authorisation, or direct the supervisory body to do so. The s21A appeal mechanism is, potentially, a very powerful safeguard. The court might consider, for instance, whether depriving someone of their liberty is in their best interests – or even whether they actually have the mental capacity to decide for themselves where they should be accommodated. It could direct that a deprivation of liberty authorisation should be terminated, in effect freeing a person to leave the place at which they are detained.  It did this in the case of Steven Neary just before Christmas and in another (unreported) case in the 39 Essex St Court of Protection Newsletter for January. Or it could place additional conditions upon on authorisation, in order to ensure that detention where it is occurring really is in somebody’s best interests, or is the least restrictive option available. The question I will be exploring in this post is – how effective is this safeguard in practice? My concern is that despite its potency, it remains inaccessible for the vast majority of people who are deprived of their liberty and their families.

Comparison with the Mental Health Tribunal system

During the drafting of the safeguards several consultation respondents expressed a preference for the existing Mental Health Tribunal (MHT) system over the Court of Protection as the site of proceedings to determine the lawfulness of detention under the safeguards. Age Concern and the Law Society stressed that the MHT system, unlike the Court of Protection, already had considerable experience of issues of detention and its judges would require only limited retraining. Several respondents stressed that the MHT was a considerably cheaper court to operate than the Court of Protection, and – being a tribunal - theoretically more accessible for users. But perhaps the most important issue was raised by Council on Tribunals: how will the right to review by a court of the lawfulness of detention be triggered? Whereas the detention of a person detained under the Mental Health Act (MHA) will automatically come before a MHT panel after 
six months1, the s21A safeguard under the Mental Capacity Act must be actively triggered by the detainee themselves, or on their behalf.

The CQC’s latest report on the MHA tells us that in 2009 there were 12,122 MHT hearings, and these ordered discharges in 12% of cases (p62). In 2009-10 there were 49,755 detentions under the MHA. There are problems marrying up these data2, but doing the best we can with what we’ve got it looks as if as many as 25% of detentions may come before the MHT for determination of their lawfulness (if anyone can point me to a better match-up I'd appreciate it!). By contrast, the DoLS impact assessment predicted that only 2.5% of authorised detentions would avail themselves of the right of appeal to the Court of Protection. In fact, the use of the mechanism seems to be significantly lower than even that projection. The Court of Protection kindly shared with me data on the number of appeals under s21A; from the period when the DoLS came into force until December 2010, there was a total of thirty appeals. Compiling all the DoLS quarterly data there were 6943 authorised detentions for that period; so the proportion of cases appealing against detention seems to be 0.4% overall. This means that the actual proportion of appeals against detention under the safeguards is almost six times lower than the impact assessment predictions, and may be up to sixty times lower than the number of detentions under the MHA that come before the MHT system.

The Court of Protection was unable to give me a breakdown as to exactly where these appeals were coming from, and who was bringing them (although, they did give me a little bit of information, which I’ll discuss as I go). Last autumn I began writing to every local authority in England to ask various questions about their DoLS activity, and one of the questions I asked was how many s21A appeals they had seen, and what the result had been. One absolutely staggering finding was that at least 10 of these 30 appeals referred to by the Court of Protection seem to have come from a single local authority area. I’m not going to say which one, but what I would say – and what I’ll come onto discuss below – is that such a high rate of appeals against detention may be far from an indicator of sinister activities – it may in fact mean that the rights of appeal of detainees in that region are being actively supported and upheld.

For the other areas though, it does seem to be the case that something is going significantly wrong in access to the s21A appeal mechanism; on any understanding of the DoLS, if people’s rights are being supported we should be seeing far more applications to the Court of Protection than this. In an ideal world, any person who is detained and who objects to their detention should be able to avail themselves of their Article 5(4) right ‘to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’. It is true that in a hospital setting, any patient who meets the criteria for the MHA and who objects to their detention should be detained under the MHA rather than the DoLS (s5 Schedule 1A), but some DoLS patients may be objecting and ineligible for the MHA, and we might expect them to make use of the mechanism. The recent Court of Appeal judgment in P & Q (MIG & MEG) suggests that the DoLS should be used whenever a person objects to their detention, and so we would anticipate a significant number of cases arising involving local authorities as well.  There are arguments in favour of a court reviewing detention even where the detainee is compliant; if, for instance, family members object (as in the original Bournewood case), or as a precaution in case compliance arises as a result of a person's disability or even medications they are placed on.  It is possible, after all, that a person's detention is not in their best interests, but they are compliant with it nonetheless.

Unfortunately the Court of Protection data doesn’t give us a breakdown as to detention settings, but this is information that the Ministry of Justice or Department of Health night consider useful to collect in the future. I’ll consider first of all the reasons the s21A mechanism may be less accessible for detainees and their family, then go on to consider the possible role of the supervisory body and other professionals involved in the case.

Awareness of the existence of the s21A mechanism of appeal

The first, and perhaps most formidable obstacle to the use of the s21A mechanism is awareness of its very existence and purpose. Applications to the Court of Protection can be made by the detainee themselves, the ‘relevant person's representative’ (RPR), or by their attorney or deputy under s21A without seeking the permission of the court first3.  For the detainee themselves, the right of appeal to the Court of Protection is mentioned in the Department of Health’s easy read guidance on the safeguards (here), and they provide a telephone number to the Court of Protection. (As an aside, were the drafters of the easy read guidance displaying a cruel sense of irony towards their target audience of detainees when they put on the cover a picture of a man strolling down the road and enjoying his freedom?). The right of appeal to the Court of Protection is also mentioned in the Department of Health guidance for RPRs (here), although there is no explicit mention of this right in the guidance for family, friends and unpaid carers (here). It would be interesting to know how many detainees and RPR’s actually receive copies of the Department of Health guidance booklets. 

Oddly enough, under s59 Schedule A1 it is the duty of the managing authority of the detaining hospital or care home – and not the supervisory body – to give information about the effect of the standard authorisation, including rights of appeal to the Court of Protection (this duty is given under s83 if an urgent authorisation applies). In view of widespread concerns that managing authorities – care home managers in particular – have very poor understanding of the safeguards (see the Mental Health Alliance and CQC reports for more on this), it may be problematic that the duty to inform detainees and RPR’s of their rights fall to them.  The obvious parallel which presumably inspired this duty was that under s132 MHA 1983 hospital managers have a duty to inform detained psychiatric patients of their rights. Disappointingly, compliance with this duty was not discussed by the CQC in their first report on the safeguards. My own review of CQC inspection reports of dementia care homes (previously discussed here) indicates that the vast majority of inspections do not make mention of the safeguards, and those that do make reference only to whether staff have been on training or the manager displays some awareness of their existence.  It is particularly important that compliance with duties to inform are checked by the regulator, because clearly uninformed detainees or RPR’s are not going to flag up any breach of that right. In any case, it might have been more sensible if the supervisory body themselves
 – who we might assume to have a better working knowledge of the safeguards - were placed under this duty, rather than managing authorities which are likely to deal with the safeguards only intermittently. A good supervisory body will nevertheless ensure that detainees and RPR’s are aware of their rights.

Support of advocates in accessing the s21A appeal mechanism

Information about rights may also come from Independent Mental Capacity Advocates (IMCA’s). Where there is no appropriate person to act as an unpaid representative of the detainee, the supervisory body must instruct either a paid representative, or an IMCA under s39C Mental Capacity Act. However, where a detainee has an unpaid representative, they and their representative still have rights to IMCA services under s39D Mental Capacity Act. The role of the s39D IMCA is often misunderstood as being to supplant the RPR in their role, whereas in fact they are there to support either, or both of, the detainee and RPR in navigating the labyrinth of the safeguards and helping them exercise their rights where appropriate. Given the complexity of the safeguards, and their heavy reliance on the RPR to ensure the detainees rights are upheld, their role may be vitally important.

Once again, the duty to inform detainees and RPR’s of their rights to support from s39D IMCAs falls to managing authorities under s59 Schedule A1, to which the same concerns about a lack of understanding and lack of scrutiny of compliance must apply as discussed above. What often seems to be forgotten, however, is that supervisory bodies are also under a duty by s39D Mental Capacity Act to instruct an IMCA not only when the RPR or detainee requests it, but wherever they have reasonable cause to believe either:

a) that, without the help of an advocate, P and R would be unable to exercise one or both of the relevant rights;
b) that P and R have each failed to exercise a relevant right when it would have been reasonable to exercise it;
c) that P and R are each unlikely to exercise a relevant right when it would be reasonable to exercise it.
It’s not enough to just inform detainees and unpaid RPR’s in writing that they have a right to support from an advocate, in some cases the supervisory body may need to be alert to, and proactive about, people failing to exercise their right of request when it might be of benefit to them. In the Mental Health Alliance report it was found that:
IMCA providers reported that requests for 39D IMCAs were very rare, and it was suggested that they were being appointed in less than five per cent of cases where relatives or friends were acting as representatives, the usual practice simply being to inform the representative in their appointment letter that the service was available if they requested it. Cost (which the Government’s impact assessment did not specifically provide for) may well be a factor, and it was suggested also that the volume of paperwork and notifications accompanying an authorisation was a disincentive for supervisory bodies to undertake any additional tasks which were not an absolute requirement.
If supervisory bodies fail to appoint an IMCA when it is abundantly clear that the detainee and their RPR are unable to, or have failed to, exercise relevant rights when it would have been reasonable to, then they are in breach of a statutory duty which is in itself an actionable oversight. However, realistically this is likely to pose little incentive for improvement; who is likely to litigate over the breach of a duty they were unaware existed? Once again it seems there is real scope for improvements driven by a strong regulator ensuring that advocacy referrals take place when they should. The Mental Health Act Commissioners (as they are still known within CQC) check every hospital ward to ensure that information about advocacy services is made available to detainees; it would be nice to see the CQC taking the same line on IMCA appointments under the deprivation of liberty safeguards. Unfortunately, however, Paul Burstow (Minister for Care Services) recently announced that annual performance assessments of councils by CQC were to come to an end. This would have been the obvious vehicle for monitoring supervisory body compliance with the DoLS, and no successor framework has yet been announced.  We can only hope it takes a more stringent line on advocacy referrals in the future.

Securing legal advice and representation

Even where a detainee or their RPR is aware of their right to appeal against an authorised deprivation of liberty under s21A, they may have significant difficulties securing legal representation in this area. Solicitors with experience and knowledge of the deprivation of liberty safeguards are in short supply. We know, from the extensive coverage around the Steven Neary case, that one reason the case did not get to court sooner was the family’s serious difficulties in finding a solicitor who could act for them. They were initially put off by solicitors who told them they had no right to legal aid to bring an appeal. In fact, this is incorrect. Currently at least, detainees and their RPR’s have an automatic entitlement to legal aid for representation for appeals brought under s21A (however, legal aid for advice on such appeals is currently means tested, and it’s worth noting that concerned third parties who were not made RPR would have no such automatic entitlement). The misconception that legal aid is not available to challenge a deprivation of liberty authorisation was further compounded by irresponsible reporting which repeated this bad advice without correcting it (I spotted this in both The Independent’s headline article on the Neary case, and in an article in The Times). And no mention at all of legal aid is made in the Department of Health guidance for RPR’s (let alone the Easy Read guidance!).

So people may be unable to avail themselves of the s21A right of appeal simply because they can’t find themselves a solicitor to help, or because they (wrongly) believe they cannot afford to take action. These obstacles could be partially overcome by better access to information; I would like to see supervisory bodies informing people both of their right to legal aid and giving details of where they can find practitioners to advise them if they need to take forwards a case. It would be helpful also if the professional bodies could compile some kind of listings of solicitors with expertise in this area – better still if they double checked they actually do have the experience of taking it on (I speak from personal experience when I say some unscrupulous solicitors may say they can take on a DoLS case when in fact they have absolutely no knowledge of the system whatsoever...). The Court of Protection data indicates that fourteen of the thirty s21A appeals have come from ‘solicitors’ – but they are unfortunately able to break that down further by saying who those solicitors acted for (presumably either the detainee, their RPR or perhaps a family member).

Further evidence that people may be unable to take advantage of their right of appeal because of difficulties securing legal representation come from the data the Court of Protection shared with me. Of the thirty s21A appeals, eight came from litigants in person. It may be that these people were friends or family members who had not been made the RPR by the supervisory body, and so were not automatically entitled to legal aid; or it may be that they were entitled to legal aid but simply struggled to find a solicitor. In any case, I salute these litigants in person for actually managing to make an application to the court at all, because it is no mean feat. There is some government guidance on making an application to the court here, but applicants would still have to figure out which of these forms they needed to complete – and then fill them out (the answer is COPDLA, and possibly COPDLB if it’s exceptionally urgent, and COPDLC if the applicant needs to seek the permission of the court – more information is available from the court’s deprivation of liberty Practice Directions). In practice, the best thing for would-be litigants in person to do is probably to telephone the court’s deprivation of liberty team themselves on 0300 456 4600, but better still – secure a solicitor if you can.

Additional obstacles for the detainee themselves

I think it is fair to say that the DoLS rely heavily on the RPR themselves bringing an appeal when it is appropriate. In some circumstances, however, the RPR and the detainee may have different views on the authorisation, and in fact the RPR may well support the placement and deprivation of liberty order whilst the detainee themselves objects. It's worth reflecting that some RPR's may also be the commissioners of the care themselves, if they placed the detainee in the care home in the first place. One such case was recently heard by the Court of Protection, A v A Local Authority [2011], and the court reiterated that even if the supervisory body, managing authority and RPR were all in agreement that the authorisation was appropriate, the court should not just act as a ‘rubber stamp’ and should conduct a review of the lawfulness of the detention itself. In that case, they sent a Court of Protection ‘visitor’ to assess the detainees mental capacity and best interests. But in reality, how eas
y is it for a person who is deprived of their liberty and who may even lack litigation capacity, to mount an appeal without the support of their RPR, the supervisory body or those who care for them (ie. the managing authority who is detaining them in the first place)?

It’s not clear how many detainees have been able to mount an appeal independently of their RPR. The Court of Protection were unfortunately unable to offer a breakdown of how many s21A appeals had been mounted by detainees themselves, and how many by their RPR – again, this would be useful information for the Department of Health or Ministry of Justice to collect to look at how the appeal process is functioning.  In the one published case just discussed, it is not stated how the case came before the court, but it does seem as if an IMCA was involved and so it is possible that they helped the detainee to find a solicitor or referred the case there themselves. According to the Court of Protection data, two s21A appeals have been brought by IMCA’s or advocates themselves (who, we should recall, incur the costs of seeking permission from the court to apply – unlike the RPR). This would be yet another reason for making s39D IMCA referrals, and rather raises the question of what happens when a person objects to their detention but a paid representative does not mount an appeal on their behalf. 

Many people who are detained under the DoLS may additionally lack litigation capacity. This means, that even in the event they are able to make contact with a solicitor, they may be considered unable to conduct the litigation themselves and a litigation friend will have to be sought. Where no appropriate person can be found, the Official Solicitor (OS) is appointed to conduct litigation on behalf of a person who lacks the capacity to do so, as a ‘litigation friend of last resort’. It is possible that in some circumstances the OS may decide not to take a s21A appeal forwards on the basis that the appeal had little prospect of success. I tried to find out how often this was happening, but unfortunately the Office of the Official Solicitor is not covered by the Freedom of Information Act (my refused request is here), and the Ministry of Justice does not collect this information. Thanks to the helpful suggestions of people at whatdotheyknow.com, I have asked my local MP to table a written question in parliament, so I’ll post an update when I hear back on that. It is of course possible that the OS takes forward all s21A appeals as a matter of course. Whilst in some respects, refusing to take forward cases on the basis that they stood little prospect of success may be protective of the public purse and act as a precaution against unduly raised hopes on the part of the detainee, it may also present problems from the perspective of Article 6 and Article 14 of the European Convention on Human Rights. The right to a fair trial, or to take proceedings to determine the lawfulness of their detention, is not restricted to those cases that demonstrate a fair chance of success. And neither do detainees under the MHA have to demonstrate this, meaning that if such practices occur they may be discriminatory against DoLS detainees, potentially engaging Article 14 as well.

Guidance for supervisory bodies to refer cases under s21A themselves

In 2010 the Department of Health issued guidance which stated that:

23. Where an authorisation and/or any of its conditions fails to stop the continuing or new opposition of a family member, then a dispute cannot be considered to have been resolved.
24. Cases which are subject to dispute and cannot be otherwise resolved will require the last resort determination of the Court of Protection, and should not be viewed as having been resolved via the MCA DOLS process.
It is of interest in itself that the guidance only refers to the opposition of a family member, and not the detainee themselves. But in any case, it does rather indicate that where there is an ongoing dispute over an authorisation, the supervisory body itself should be making an application to the Court of Protection under s21A. According to the data from the Court of Protection, of the thirty s21A appeals in total, two came from an NHS body, one came from a nursing home and three from a local authority. My independent FOI requests suggest that the three local authority requests may have come from a single local authority (the same local authority that made up one third of the s21A appeals overall, including these three). It is possible that my data is incorrect, and it is also possible that the picture has changed since December – and indeed, if anyone knows of any other local authorities that have referred cases to the Court of Protection themselves under s21A then I would be interested to hear of them. However, it does look as if local authorities and PCT’s may be disregarding this guidance. It will be interesting to see what happens in the judicial inquiry into Steven Neary, as that seems - on the surface at least –  very much like a case which the supervisory body should have been bumping into court themselves, to settle the ongoing and increasingly public dispute. 

I am not aware of any direct statutory duty upon the supervisory body to apply to the Court of Protection where there is an ongoing dispute, and there are clearly disincentives for it to do so from the perspectives of cost and scrutiny of their own decisions (including potential liability for any decisions found to be unlawful). In fact, one might even say that a supervisory body must be quite confident that its practices are well informed by the law to refer cases to the Court of Protection itself, and certainly it is one that takes the Article 5 rights of detainees seriously. In the absence of an automatic referral process like that under the MHT, it would be nice to see clearer and more prominent guidance given to supervisory bodies about when they should consider making a s21A referral themselves, and perhaps some threat of sanctions where they fail to do so.  There may also be arguments for offering supervisory bodies 'permission free' (and, perhaps more importantly, fee free) routes to apply to the Court of Protection, just as the abolition of fees for applications to the family court been recently been advanced.  Evidently in times of increasingly scarce resources, the cost of applying to the Court of Protection to settle a dispute may discourage supervisory bodies from applying when they should.

The overall picture – Article 5 compliant?

The overall picture that emerges from the data the Court of Protection kindly shared with me, is that the s21A mechanism is seeing significantly lower use than we might predict if it is to operate as an effective mechanism to review the lawfulness of detention where the detainee or their family are objecting. This may result partly out of a lack of awareness of the right to appeal, or difficulties securing legal advice or representation. In comparison to the MHT system of automatic referrals to a tribunal, the DoLS appears (once again) as very much the poor relation of the MHA. The ideal system of independent review by a court would take into account the serious difficulties people who are deprived of their liberty under the Mental Capacity Act may have in accessing justice.  In many ways the obstacles they face may be greater than most MHA patients, particularly if detainees are scared of upsetting the commissioners or providers of their care, or are simply incapable of taking legal action themselves to challenge their detention by reason of their condition. The most failsafe mechanism would be automatic referral as under the MHA, but failing that the current system could be improved:

  • Advocacy can ensure people are both aware of their legal rights to appeal, and get support in accessing them if necessary. The Mental Health Alliance recommended that people are referred automatically to advocacy services (with a right of refusal) under s39D.  This would be my preference, but referrals to s39D advocacy services by supervisory bodies should be more stringently monitored by the regulator, and non-compliance should carry potential sanctions. 
  • Guidance for RPRs and detainees should make clear that there is an automatic entitlement to legal representation to bring s21A appeals. 
  • The legal professional bodies should consider compiling approved listings of solicitors who have experience and knowledge of the DoLS system. [Edit: The Mental Health Lawyers Association have now started a listing of solicitors who do Court of Protection work, it is incomplete as yet but still quite extensive and can be found here - thanks for sending me the link Jonathan]. More training in this field must be considered in order to make up the shortfall in the number of solicitors able to take on this work. 
  • More transparency about the role of the Official Solicitor in bringing s21A appeals is desirable. 
  • Supervisory bodies must be more proactive in bringing cases to the Court of Protection where disputes are ongoing around an authorised deprivation of liberty. 
  • The Department of Health and Ministry of Justice should be collecting more detailed and accurate data on the use of the s21A appeal mechanism.  This could help shed light on questions such as how many detainees are able to make use of this mechanism, how many appeals relate to detentions in care homes or hospitals, and are disproportionate numbers of appeals from particular supervisory bodies?  In turn this information could help shape policy recommendations for improving access to justice in the future.
I have been musing on whether the system is Article 5 compliant. Is the existence on paper of an appeal mechanism, advocacy services and the right to legal aid sufficient for Convention compliance if the reality is that these safeguards are under-used, and inaccessible to many? Given the existence of the safeguards in the law books at least, the UK government seems (to me at least) to be pretty immune from challenge in the ECtHR – after all, any case would have to exhaust all domestic remedies first. The question of whether it is Article 5 compliant in spirit seems to me to be up for debate. If the purpose of the safeguards was to prevent a repeat of the embarrassment of Bournewood, then they are probably overall effective. If they are serious about protecting the right to liberty of some of our most vulnerable citizens, then I think their success may be questionable at best.  Access to justice requires supporting and ensuring the means to put rights into action, not the creation of empty rights in dusty books.

[Edit 01/06/2011: It was suggested to me that some people might be litigants in person in s21A appeals because they failed the merits test in securing legal aid.  This is a good point, but I checked it out and the LSC confirm that they have awarded legal aid in 67 s21A appeals between April 2009 - December 2010, without a single refusal.  It looks, reassuringly, as if the LSC takes the view of the Court of Protection, that the court should not just 'rubber stamp' detention and take all appeals seriously]

1 Although there is a right to apply to a MHT for discharge after 21 days.  [Edit: For some reason I put in details from the Irish system here! I blame the SLSA conference for filling my head with comparative law. The system in England is too complex for a footnote, so I direct you to this guide by Mind on discharge from hospital.  Thanks to Jonathan at Mental Health Law Online for drawing this to my attention.

2 The MHT data is for the calendar year 2009, whereas the detention data runs for the financial year. In addition, I’m also not clear whether the data on detentions only include ‘new’ detentions, or also long term detainees.

3 This is provided for by the Court of Protection practice directions for the deprivation of liberty safeguards. Anyone else with a genuine and legitimate interest in obtaining a decision in relation to a welfare matter may make an application to the Court of Protection, but they must seek permission from the court to apply. This might include the managing authority of the detaining institution or the supervisory body themselves, Independent Mental Capacity Advocates (IMCAs) involved in the case, or other family members or friends who are not the relevant person’s deputy, attorney or ‘part 10 representative’. Unless exemptions apply, a fee of up to £400 may be charged for seeking permission, in addition to charges for legal advice and representation. You can read more on making an application here.

1 comment:

  1. Fantastic post. In much fewer words, my gut response is 'no'. But you say it with much better authority!