Safeguards and secrets

The ground shifted subtly yesterday for supervisory bodies in England and Wales.  It wasn’t the earthquake of the Bournewood judgment, but tremors from the Neary ruling will be felt by local authorities and primary care trusts around the country, and perhaps best interests assessors in particular.  The deprivation of liberty safeguards – patchy, bureaucratic, labyrinthine – had finally clunked into life, albeit belatedly, and returned Steven Neary to his father last Christmas.  For everything that can be said about this ruling, about all the aspects of the safeguards that can go wrong, the ways in which they can be distorted and manipulated, and the inherent conflicts of interest at their heart, it is still heartening to hold up this judgment against the ruling of the House of Lords in R. v Bournewood Community and Mental Health NHS Trust Ex p. L and see how far we have come.  The central message of HL v UK, of the importance of due process for people with impaired capacity who are deprived of their liberty, may yet have to fully sink in for some public authorities responsible for supporting and assisting them in their lives – but we can rest assured that it has been very well understood by the judiciary in the Court of Protection.  Mr Justice Peter Jacksons’ ruling was a far cry from deference of the House of Lords’ in Bournewood to professional opinion, the message was loud and clear: the tokenistic application of the safeguards by supervisory bodies is insufficient in and of itself, the court will scrutinise your every step to ensure you have understood and acted upon their spirit.

Am I the only one to wonder if Jackson J’s ruling was carefully designed to stopper some of the glaring gaps in Schedule A1 and the code of practice?  One passage, above all, stood out to me in the ruling

...there is an obligation on the State to ensure that a person deprived of liberty is not only entitled but enabled to have the lawfulness of his detention reviewed speedily by a court. The nature of the obligation will depend upon the circumstances, which may not readily be transferable from one context to another. In the present case, I have already found that the three matters together – no IMCA, no effective review, and no timely issue of proceedings –made it more likely than not that Steven would have returned home very much earlier than he did. Those omissions had consequences, and Hillingdon thereby defaulted on its obligations towards Steven. I accordingly find that they amounted to a breach of his rights under Article 5(4). [202] (emphasis mine)

In some respects the judge is merely restating, and emphasising, the provisions of the Mental Capacity Act 2005 that cumulatively make up the right to speedy review by a court of the lawfulness of detention.  But I suspect that in the eyes of not a few supervisory bodies, the positive obligation to actively refer an ongoing dispute to the Court of Protection themselves will be read as new law.  In April last year the Department of Health did send round a reminder to supervisory bodies  that the DoLS could not be regarded as resolving an ongoing dispute.  They reminded supervisory bodies that according to the MCA code of practice:

a “court decision might be appropriate” where “there is a major disagreement regarding a serious decision (for example, about where a person who lacks capacity to decide for themselves should live)”

Quite possibly this point was not strongly enough put.  A court decision “might” be appropriate where there is a major disagreement, and besides it comes not from the DoLS code of practice but the MCA, and so it is understandable – if legally indefensible – if supervisory bodies did not consider that it seriously applied to any DoLS case where there was an unresolved dispute.  In fact, the deprivation of liberty safeguards code of practice seems to actively discourage applications to the Court of Protection:

‘Wherever possible, concerns about the deprivation of liberty should be resolved informally or through the relevant supervisory body’s or managing authority’s complaints procedure, rather than through the Court of Protection.’ [10.5]

The aim should be to limit applications to the Court of Protection to cases that genuinely need to be referred to the court. However, with deprivation of liberty at stake, people should not be discouraged from making an application to the Court of Protection if it proves impossible to resolve concerns satisfactorily through other routes in a timely manner. [10.6]

The problem is the determination of what constitutes ‘genuine need’ provides another opportunity for misjudgement and the exercise of discretion, especially where supervisory bodies may not welcome the time and costs of a court application, or the possibility of close scrutiny of their actions.

For my research I surveyed every local authority in England and asked them a series of questions about how they were implementing the DoLS (no doubt a few people reading this may have even answered those questions – thank you, I appreciated it).  One question was how many court challenges to authorised detentions they had been subject to under s21A Mental Capacity Act up until December 2010.  One local authority responded that they had been subject to seven challenges, but had referred three DoLS cases to the Court of Protection themselves.  This one local authority made up a third of all DoLS appeals by December 2010.  According to the Court of Protection, by that time there had only been three appeals lodged by the local authority themselves; thus there appears to have been only one supervisory body in the whole of England and Wales that had actually recognised the importance of enabling due process in the safeguards, and pre-empted Jackson J’s ruling.  Let us hope that others will follow in their footsteps. [Note: I have now completed collating the results of my survey, and one other local authority also reported referring three DoLS cases to the CoP themselves.  They were also a local authority with very high DoLS activity.]

A second aspect of due process emphasised by Jackson J was referral to advocacy services to support the detainee to access their Article 5(4) rights.  When I surveyed local authorities I also asked about advocacy referrals – this was one of the questions with the most mixed quality of response, as many local authorities appeared to have no idea how many referrals they had made, since it went to an outside agency.  These data are collected at a national level, but I’ve come up against endless dead ends trying to get hold of the raw data, that will let me look at advocacy referrals of different types under the DoLS for each local authority, and compare it to the number of authorisations they are granting.  You can read reports of the IMCA service, but they don’t give the breakdown I am looking for, and the Department of Health and NHS Information Centre are being less than helpful in letting me get hold of it.  So I have to make do with what patchy data I gleaned from my survey. [Update: after a year my Freedom of Information Act request to access this data received a response, see here for discussion.]

Under s39C Mental Capacity Act 2005, one of the amendments brought in under the Mental Health Act 2007, where there is no appropriate person to act as the ‘relevant persons representative’, the supervisory body must instruct a “section 39C IMCA” to act as their advocate.  In the impact assessment for the safeguards, it was estimated that this would occur in around 15% of cases.  From the data I have on IMCA referrals (105 English local authorities so far), referrals to s39C IMCAs appear to be in keeping with the predictions, 16% in fact.  The national picture regarding s39D IMCA referrals is much less reassuring.  Under s39D MCA, where a person has a representative such as a family member, there is also a right to referral to advocacy services to support the detainee (‘P’) and their representative (‘R’) through the DoLS process.  It is not, as many supervisory bodies seem to believe, merely a right upon request, they have an active duty to refer P or R to advocacy services if they have reason to believe:

(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.

This pro-active duty is unlikely to be satisfied by merely telling RPR's and detainees in a letter that they can request advocacy support.  It seems to me obvious that if either P or R are objecting to the detention, but are not accessing their rights of review by the supervisory body or the court, then they are not exercising the rights that they could reasonably be expected to.  Therefore, there must be an active duty upon the supervisory body to consider whether this is because they do not know how to exercise their rights, or are having difficulties doing so for other reasons.  They should consider making a referral; and if I were a supervisory bodies with a DoLS dispute bubbling away that might come before a court, I think I would document any reasons for deciding not to refer.

So important was the s39D IMCA expected to be, the DoLS impact assessment predicted they would be needed in 80% of cases where a person was befriended.  In the Neary ruling it transpired that although Steven and his father had been referred for advocacy support under s39D by the first best interests assessor, this had not been followed up for many months.  In fact, it seemed the advocacy services themselves hadn’t read and digested s39D MCA, and thought they weren’t eligible [76].  This doesn’t entirely surprise me; in the course of my survey of local authorities some responses indicated that they hadn’t read s39D either – at least two responded that they didn’t make IMCA referrals unless a person was unrepresented.  Of the 105 local authorities whose IMCA referral data I have compiled, 35% reported that they had never made a referral under s39D by December 2010.  These local authorities had received up to 182 applications for authorisation, so the issue cannot be merely the low level of DoLS activity.  I stupidly did not ask local authorities for figures on the number of paid and unpaid representatives, but I calculated that if the number of paid and unpaid representatives was as the impact assessment predicted, we should have seen 52% of all DoLS cases having referrals under s39D; instead my figures indicated they occurred in 19% overall, with distribution between areas being extremely uneven. 

My figures, alarming though they are, are in fact slightly more encouraging than the findings of the Mental Health Alliance in their July 2010 report, who suggested that referrals might be occurring in less than five percent of cases.  They write:

...the implication is that the requirements of Section 39D are generally being disregarded and that the vast majority of family representatives are receiving no support in grappling with an opaque and impenetrable system.

It is clear, reading the Neary judgment, that the impact of the advocacy referral when it finally did come through was transformative.  The judge found that ‘The first best interests assessment that deserves the name is the IMCA report of 18 November 2010’ [155].  It was the IMCA who lent the family the professional backing to their feeling that something was inherently wrong in the best interests assessments.  According to the data the Court of Protection supplied to me, by December 2010 two of the s21A applications for review of the lawfulness of detention came from IMCAs, and three of the fifty-six deprivation of liberty applications under s16 (usually used for settings where the safeguards do not apply) had also come from IMCAs.  Where a detainee or their representative is unable to, and the supervisory body is unwilling to, a good IMCA will act as a safeguard of last resort to ensure that where there is an ongoing dispute the case comes before the Court of Protection.

Mark Neary is a remarkable man.  It would have been easy, last summer, for supervisory bodies who became dimly aware of the case through its growing presence on blogs and media to regard him as a publicity seeking uppity family member, obstructing the plans of professionals that have the best interests of vulnerable adults at their heart, quite possibly with more sinister safeguarding issues in the background.  But Mark was not this.  He was a devoted parent who – the court found – knew his son’s needs better than any of the professionals involved in the case, and who was fighting, in the only way he could think of, to get his son back home.  The judge said:

‘I want to thank Mr Neary for the quiet way in which he has presented his case.  Several times, both during his evidence and when acting as advocate, he had the opportunity to vent grievances or launch an attack on Hillingdon in the presence of the media, but he did not do so.   I am sure that this is because his focus has been on Steven from beginning to end.  Mr Mark Neary is an unusual man and he can be proud of the way in which he has stood up for his son’s interests.’ [155]

Why did such a resourceful man, with this kind of passion and commitment to getting his son home, not trigger the court review process using the safeguards? 

It is not mentioned in the judgment, but part of the problem was securing legal representation (see article by Billy Kenber, The Times, 1 March 2011).  I confess here to a closer interest in the case than I have previously publicly described.  Mark and Steven’s case was brought to my attention last summer by another carer, and I read with interest the sprinkling of articles and Mark’s own blog on his public Facebook page.   It reached me, through subterranean carer support networks, that Mark couldn’t find a solicitor.  I offered to help him ringing round solicitors on the Mental Health Lawyers Association list (they now have a dedicated Court of Protection list).  We called tens and tens of solicitors.  Most openly admitted no knowledge of DoLS.  Some offered to take us to a mental health tribunal or seek judicial review in the administrative courts.  Others, with experience, simply did not call us back or could not take on a case.  It was sheer luck, frankly, that we found a firm 200 miles away in Exeter, who had both the experience and the availability to take on Mark’s case.  It’s a question that I don’t think is satisfactorily discussed in the judgment, how if Hillingdon had applied on October 28 2010 for various declarations from the Court of Protection, it took until December 21^st for the case to be heard by Mostyn J.  That doesn’t sound like a ‘speedy review’ to me.  I wonder whether the Court of Protection was aware from Hillingdon’s application of the deprivation of liberty authorisation, or the dispute bubbling away underneath it?  My suspicion (hope) is that it was not.  If it was, I think we should be more than a little concerned that the so-called ‘fast track’ for DoLS appeals took two months to kick in.  Two months is a long time in unlawful detention.

Another reason Mark Neary did not seek review is because he was scared to rock the boat [146].  His dependence, as a carer, upon the local authority supply the support he would rely upon if his son came home was ‘tattooed on my brain’.  I am sure that carers up and down the country will nod in recognition at this comment. Aside from the ordinary concerns about challenging authority professionals with ‘expert knowledge’, RPRs will almost always be the subordinate party in a relationship of dependence and authority, and there may good reasons why they seek not to upset the people providing, and sometimes commissioning, the care their loved ones depend upon.  Hillingdon council’s behaviour betrayed a misconception which is no doubt not unique to them, that the decision as to where a person who lacks capacity should live is entirely up to the local authority [93].  It is hardly surprising if ordinary members of the public are subject to this misconception as well.  Judgment after judgment (after judgment) has emphasised that the appropriate role of the local authority is to provide services and support, not to control or coerce those they provide that support to or their families.  The only source of authority for control or coercion ultimately comes – not from the DoLS – but the Court of Protection itself.

The reason that stands out so powerfully in the Neary ruling why the family did not trigger the court review sooner,  is the sheer duplicity of Hillingdon Council towards Steven and his father.  The litany of lies set out in the ruling is utterly unjustifiable, and the consequences for justice were very grave indeed.  Mark believed, long after Hillingdon had decided that he never would, that his son was coming home.  Sometimes, exceptionally, it can be appropriate not to be full and frank with a family member if it is felt that to tell them the truth will put a vulnerable person at risk.  Such circumstances would be expected to trigger immediate safeguarding proceedings; which were not triggered here.  Furthermore, where a family member is the welfare deputy of the relevant person – as Mark was here – the local authority should be expected to apply to the Court of Protection immediately to strip them of these powers.  Hillingdon council did not do that.  Hillingdon council sought to conceal from Mark their plans to remove Steven, permanently, from his care, to prevent him from objecting until they had accumulated enough evidence to convince a court to go along with them.  After an entire year of Steven’s detention, they did not manage to build a convincing case.  The judge commented:

Where a dilemma exists, the court provides an accessible forum. Often, parties will have a clear view of what they are proposing, but if a party needs more evidence or is uncertain about the best outcome in a difficult case, it is no shame to say so. Proceedings in the Court of Protection need not be adversarial. The fact that these have been is no more than the consequence of Hillingdon's stance. It is a great pity that it did not issue proceedings at least six months earlier, and regrettable that when it finally did so it did not share its internal doubts with others, instead pitching its case as high as it did. [142]

The message is clear: you cannot merely lock someone up pending evidence, which you do not yet have, to justify detention.  Sometimes it will be a clear cut thing that detention is in a person's best interests, but not always, and a dispute by a family member who knows the detained party very well should be a strong indicator that matters are not so clear cut, even if they seem to be in the minds of the professionals.  If there is any doubt at all, even – perhaps – if there is no explicit dispute between parties – the supervisory body must seek the guidance of the court.

One of the problems with the safeguards is the heavy burden they place upon the relevant person’s representative (RPR).  The expectation of the framers of the safeguards seems to be that if there is anything wrong in authorisation – dodgy assessments, non-compliance with authorisation conditions, ongoing disputes that are not settled ‘informally – that the RPR will bring the case to the attention of the court.  I’ve written elsewhere why this may be a fundamentally flawed assumption.  It was brought up in the consultations as well.  Age Concern wrote, in response to the original Bournewood Consultation in 2005:

We have some concerns that there appears to be an over simplistic picture of regarding the involvement of relatives as a guard against potential infringements of article 5 of the ECHR. Relatives may well have their own agendas, or as commonly happens having to reluctantly acquiesce in a care plan because care services are not available to help the individual remain in their own home or the least restrictive environment. Just because relatives have been forced into this position should not mean that the person should be denied the safeguards of Protective Care.

And the Mental Health Act Commission wrote in response to the same:

...we would question the implied emphasis upon family and friends over the independent element in the framework alluded to in the consultation document, which could limit the safeguards available for the ‘unbefriended’ patient. At the very least, therefore, the ‘independent element’ should be the core of the safeguard with family and friends playing a secondary role (this is not to say that, especially where family or friends had caring responsibilities and supported a treatment decision, that support might not be the decisive element in a judgment as to whether deprivation of liberty is at issue).

Not all RPRs will dispute the detention; indeed there may be many cases where the family, the care provider and the supervisory body are in agreement that deprivation of liberty is the right path to be taking.  What happens in these cases where the detainee themselves disputes the detention?  The logical corollary of the judgment in P & Q (2011) is that if a person is found to be deprived of their liberty in a relatively ‘normal’ setting like supported living, or an ‘ordinary’ care home, it can only be because they are objecting to their confinement there.  In such cases, if we take Jackson J’s ‘enablement’ message to heart, there should be adequate support to ensure every objecting detainee’s case is heard before the Court of Protection.  We saw in a case earlier this year, A Local Authority v A (2011), that even where the RPR and the supervisory body are in agreement that the detention is in the relevant person’s best interests, the court must not just ‘rubber stamp’ the authorisation, but should apply its own scrutiny to whether the detention is lawful if the detainee objects.  It is an interesting question how far the ‘enablement’ message of the Neary ruling will be taken up, with regard to disputes of the detainee themselves.  My contention is that if it were taken seriously, we could expect to see far, far more applications to the Court of Protection under s21A on their behalf.  By far more, I do not merely mean more than the pitiful 0.4% we are already seeing, nor even the minimal 2.5% anticipated in the DoLS impact assessment.  If detention in community care settings is primarily characterised by the objections of the detained party, and the vast majority of detentions are in community care settings, then we should expect to see the vast majority of those detainees ‘enabled’ to have their objections considered by the Court of Protection.  It is almost certain the Court of Protection could not cope with this volume of applications, and it may be that the government will have to review again whether a tribunal system may have been a more appropriate destination for appeals.

We could, if we wanted to, take this a step further to answer concerns that I and others have expressed – that the ‘objections’ requirement does not take account of those who should be expected to object, but cannot due to their disability.  Or whose objections may be unrecognised, and interpreted as a symptom characteristic of their diagnosis.  We could import into the ‘objections’ jurisprudence an important idea from the Mental Health Act 1983 revised code of practice, that ‘If there is reason to think that a patient would object, if able to do so, then the patient should be taken to be objecting’ [4.19].  Horribly subjective, yes, but it might pick up those cases where a person is not vocally objecting, but is in a situation that departs so far from Wilson LJ’s vision of ‘normality’ that any reasonable person should be expected to object.  Places like Winterbourne View, for instance.

Does this projection sound like hyperbole, an extension too far of Jackson J’s intended meaning?  Perhaps it is.  And yet, I hope that this is what he meant.  It seemed to me that the ruling shifted the burden of ensuring the Article 5(4) rights of detainees under the DoLS squarely back onto the shoulders of the supervisory body – where it always should have been – from the RPR.  The supervisory body, not the RPR, will be held accountable if authorisation conditions are not monitored and complied with, if advocacy referrals are not made when they should be, if authorisations rest upon assessment reports that ‘resemble a bag of spanners’ (to quote a BIA), if the review of the court is not requested.  If they do not, they may not merely be in breach of the DoLS and their obligations under s6 Human Rights Act 1998, they may – and this should awaken the interests of litigation-fearing supervisory bodies – be held to be negligent [191].  

We take very seriously the right of review of the lawfulness of detention under the Mental Health Act 1983.  Why is DoLS the poor relation, relying on a ‘maybe system’ to protect the rights enshrined in Article 5(4)?  Maybe a person – who is so incapacitated they quality for the DoLS – will be able to trigger a s21A appeal; failing that, maybe their RPR will be able and willing to object on their behalf; and failing that, maybe the supervisory body will have thought to make a referral to an IMCA who themselves will make an application or maybe the supervisory body will risk seeking the scrutiny of the court themselves.  What are the odds, currently, of this happening?  Ooh, about 0.4%.

Further reading

Here are some excellent blogs I've found time to read though...

• Fighting Monsters is a practising Best Interests Assessor, they write about the ruling from that perspective here
• Stuart Sorenson is a Mental Capacity Act and DoLS trainer, and he writes about the ruling here
• And we could hardly leave this post without mentioning Anna Raccoon, whose blog coverage got the case into the public eye in the first place.  Her work is largely uncredited by the mainstream media, but followers will note large segments of her material making their way into their reports.  We can credit Anna for ensuring this case does not slip by unnoticed under the noses of supervisory bodies, the wider public, and figures in Whitehall and Parliament, who should sit up and take notice of how their badly drafted legislation is being patched up by the 'unelected' judges of the Court of Protection.

Mark gave an interview in the Independent yesterday; here is a picture of the cover.  It says it all: