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

The Small Places has moved...

The Small Places has moved to a new home here, including all the old posts. Any posts after 6th March 2014 will appear on the new website, but old posts are preserved here so that URLs linking here continue to work. Please check out the new site.

Monday, 14 November 2011

Commentary: Cheshire West and Chester Council v P

This is an extended version of a guest commentary kindly invited by the 39 Essex Street Newsletter editors on the Court of Appeal's recent ruling in Cheshire West and Chester Council v P.  The shorter version will be in their published newsletter, which I will post a copy of here as soon as it is released.  Meanwhile, you can read a summary of the judgment I wrote for the newsletter here, and backcopies of the 39 Essex Street Newsletter are available here.  As with the summary, all mistakes and views are my own. 


As a socio-legal researcher with a background working in social care, my commentary will take a policy view on the outcome of the ruling in Cheshire.  Arguably, this is an illegitimate approach to a ruling on the scope of Article 5, which should be settled on ‘objective’ points of law.  But since the ruling in HL v UK (2004) domestic judges have faced the difficulty that the available case law by which to decide these matters was patchy and contradictory.  At the time Schedule A1 was developed, community care settings were surely amongst the ‘borderline’ cases where pure opinion (Guzzardi v Italy, [93]) on the scope of Article 5 held sway.  This was manifest in the widely divergent predictions as to how many incapacitated people were in fact deprived of their liberty in care settings, and differing views of what the Deprivation of Liberty Safeguards (DoLS) were supposed to achieve.  The authors of the DoLS draft code of practice seemed, in part, to regard the framework as a means to drive forward ‘person centred’ approaches to care.  Earlier this month Minister for Social Care, Paul Burstow, expressed his view that the deprivation of liberty safeguards would be an appropriate framework to police anti-psychotic prescriptions for dementia patients.

Like a Rorschach test, we all read into the DoLS a framework for the ills we perceived needed fixing.  For some lawyers, the ‘real ills’ are cases like those of HL, Steven Neary and Mr DE, people whisked away from loving family homes by interfering and overbearing public authorities.  For those of us working in social care, the issues around liberty of the person could be conceived more broadly than disputes with family.  In the course of my research I have spoken with many assessors and advocates working with the DoLS who have seen it deliver significant improvements in the human rights of highly vulnerable individuals.  Speaking to many of them since Cheshire, there is disappointment and frustration that this role will now be limited to only the most extreme cases (see, e.g., this blog post by Ermintrude – a best interests assessor).

Beyond the minority of cases that actually reach the courtroom, it is worth recalling the nature of the safeguards that the DoLS offer.  The framework contains two vital elements: external scrutiny, free – in theory – from conflict of interest, and the ability to invoke the force of law to rectify arbitrary power.  In their quasi-judicial role, highly trained and experienced independent assessors ensure that any interferences with personal liberty are necessary, proportionate and promote their best interests.  Representatives and advocates have an oversight role, ensuring that where assessors’ recommendations are disputed or not complied with the force of law can be brought to bear.  Republican political philosophers conceive of freedom not as the absence of law, but as the absence of arbitrary power.  Unfreedom is a ‘state of domination’, where an organisation or individual exercise authoritarian power over others without checks or balances to ensure it is exercised in a non-arbitrary fashion and in pursuit of the public good.  ‘States of domination’ is an ugly sounding term, but much like ‘deprivation of liberty’ the term is neutral with regard to whether power is exercised in a benevolent or malign fashion.  The key insight of Republican philosophers is that without checks and balances, arbitrary power and the threat of malignity is ever present, and these are harms in themselves.  It is no great leap to suggest that those who are subject to the ‘complete and effective control’ of others may exist in a state of domination unless measures are taken to ensure that control is exercised in a lawful and appropriate fashion.  The difficulty is that without the DoLS, social care settings have very few such checks and balances for highly restricted, highly vulnerable, citizens. 

I think it is important to note that those cases that involve litigation may not be a representative sample of those to whom the DoLS are generally applied; almost all the cases that reach the courtroom have at their core a dispute between professionals and family members.  They concern, therefore, those with active and concerned family members, and often the possibility of alternative residences.  For many people in institutional care settings this is not the case: family may be non-existent, or unable for other reasons to play an active role in the lives of their relatives.  The effect of the judgment, ironically enough, may be that those without the natural safeguard of the family will also lose the safeguards of the law.  Their care will have few sources of scrutiny, and they themselves will have few avenues of representation.  In my research interviews with family carers of people with learning disabilities I was struck that many of them expressed hope that their sons and daughters would die before they did.  Simply put, they did not trust the state to care for their loved ones without somebody else watching over them.

From the sounds of things P’s own care plan was, in the end, very good.  The same could be said of many service users in England and Wales, and it is important not to construct social care as inherently malign or nationally poor.  However, it is also important not to be complacent.  As national reports frequently reveal, older adults and adults with learning disabilities in social care settings are inherently vulnerable to abuse, and to poor quality care.  The quality of a service can change very rapidly indeed, given high staff turnovers, corporate takeovers and management changes.  In the care of the elderly, national reports found than half of hospitals did not meet basic standards of dignity and nutrition, reports have condemned widespread excessive administration of dangerous anti-psychotic medications to dementia patients in care homes, and shocking findings like fitting feeding tubes to incapacitated patients simply for the convenience of staff.  In the care of adults with learning disabilities we have had a succession of high profile institutional abuse scandals.  One such scandal in Cornwall affected over 165 adults, most of them living in small supported living services just like those occupied by P and MEG.  National audits of learning disabilities services by the regulator concluded that there was a ‘lack of external scrutiny’, and they could not be sure people’s human rights were being upheld (2007, 2009).  Supported living services, like those P and MEG live in, are not visited by the regulator; the domiciliary care provider’s offices are inspected, but the sites of care themselves are not.  Even in care homes, inspection frequency has fallen through the floor in recent years.

In a recent study on the DoLS, a lawyer was quoted as suggesting that ‘An alternative approach to widespread use of DoLS might involve better inspection and regulatory regimes’.  The idea that an inspector visiting for an afternoon could detect any inappropriate or excessive restrictions in the care plans of all its service users belongs to the realm of fantasy.  It is not the role the regulator has ever played, and it is certainly not one the new regulator is resourced, mandated or keen to adopt.  We should also recall that Castlebeck services Winterbourne View, Rose Villa and Arden Vale all received glowing reports from the Care Quality Commission, despite being found only months later to have excessively restrictive and often abusive regimes.  Supported living services like those P and MEG live in are not subject to site visits at all under the current regulatory regime.  The level of protection offered by regulatory visits and DoLS to ensure human rights and the MCA are complied with bears no comparison.

It is not surprising that many of those in positions of power do not welcome the additional scrutiny DoLS requires.  Few of us, I suspect, would like the idea of another person closely examining our work, particularly with such values as liberty and best interests at stake.  And furthermore the safeguards are riddled with irritants, small and large.  From the unwieldy and impenetrable drafting of Schedule A1, through to the repetitive and badly formatted forms, they are not a legal framework that maximises clarity or ease of use.  The failure to include supported living services like P’s within the DoLS framework was an oversight that could have been remedied if the government of the day had listened to recommendations in the consultation responses.  Instead, local authorities and care providers must make burdensome applications to the Court of Protection for authorisation of detention, and the court is saddled with the prospect of reviewing each and every case on an annual basis.  The threat this poses to the infrastructure of the family court division and the office of the Official Solicitor has been noted in several cases (e.g. P & Q [4]-[5]; Re RK [5]-[13], [44]), and it is reported elsewhere that the family division has not been awarded any additional resources to deal with the growing number of Court of Protection cases (G v E, [4]).  The cases are often lengthy and highly complex, and the strain on judicial resources must be significant.  But from a policy perspective, resources and irritants are qualitatively different pressures upon the scope of Article 5 than, say, the matters of national security or public order wrestled with in the control order and ‘kettling’ cases.

We have recognised for centuries that adults with mental disorders who are confined within controlling institutional regimes are very vulnerable to abuses and excessive interferences with their rights.  These new forms of community based care are undoubtedly a vast improvement upon the asylums and long-stay hospitals of old, but for a small group of service users the element of control has remained the same.  For some people this may be the only way we can ensure their safety and welfare, which is prerequisite to the pursuit of happiness that grounds liberal values.  The central intuition of the Mental Capacity Act 2005 is that in some circumstances the exercise of authoritarian control – kept to a minimum, exercised only in best interests – is necessary and good, even in a liberal state.  But procedural checks and scrutiny are required to ensure this control is exercised in accordance with these values, and does not fester or exceed its legitimate authority.  Whilst the principles embedded in s6 MCA may be sound, it offers very few safeguards that could be triggered in circumstances where an incapacitated individuals’ rights are being abused.  The problem with the safeguards offered by the MCA proper and the Human Rights Act 1998, are that they require somebody somewhere to trigger a complaint or litigate.  This is an impossible requirement to make for an individual like P to enjoy his rights.  It seems to me a just principle that those whom we commit to the complete and effective control of others enjoy safeguards upon what liberty remains to them.

Footnotes
(Have been deleted, as with a little help from Jonathan and Google caches I've found archived versions of all the documents not on the CQC's new website).

For a contrasting view...
I realise my perspective on the Cheshire ruling comes from a very particular position and may not reflect all views, so I'll post up any contrasting views I come across here.  Please let me know if I've missed anyone.


Trinity Chambers have posted a commentary on Cheshire here.  Barrister Tim Spain comments:
A critical element in the necessary examination of the relevant circumstances will be to consider the characteristics of the appropriate comparator. It is meaningless to look at the circumstances of P and to compare them with those of a man of the same age but who has the benefit of unimpaired health and capacity.
The Official Solicitor it is believed is intent on pursuing an appeal to the Supreme Court in the case of P and Q –v- Surrey. If that be correct, logically an appeal will similarly be pursued in the instant case of Cheshire West and Chester Council –v- P. In the event that the Supreme Court were to uphold the view that the facts of the Surrey case and the case of Cheshire West in law involved a deprivation of liberty, the ramifications for care homes, for social workers, for the local authorities and then in turn the resources of the Court of Protection are very significant, serious and alarming.

If a “literal” reading is to be applied to Care Plans, to the extent that anything that might, when seen against the freedom of a healthy individual, serve as a restraint or a constraint, is to be considered as a Deprivation of Liberty, then initial recourse to the Court of Protection will surely be overwhelming in terms of the sheer number of cases and the provision for Court reviews will serve to further exacerbate a situation that it problematic in the regions at the present time.
I would comment that there is a difference between restrictions on liberty that relate to having a disability that necessitates support to access the community (e.g. somebody to push a wheelchair), and being only able to access the community when under the control of others (e.g. being strapped to a wheelchair to stop a person absconding).  In my view, only the latter would be a restriction on liberty 'imputable to the state'.

Over at the UK Human Rights Blog, Thomas Henderson - a pupil barrister at Crown Office Row - has written a commentary, concluding:
This decision will be welcomed by care providers and would seem to be a victory for common sense. Munby LJ has looked beyond the black and white of the care plan to the context and reality of P’s care.
While it is true to say that P’s life is heavily restricted, it is restricted as a result of his disability. In so far as is possible, P’s care at Z house facilitates his liberty, rather than restricting it, and the Court of Appeal has recognised that.
Another view not so far from my own comes from John Leighton at the Social Care Institute for Excellent, given in this blog post at Community Care.  

11 comments:

  1. I understand the desire to make sure people like P have as many safeguards as possible, and that his care is properly monitored and supervised. I want that, too.

    But that is either a management or a regulatory function, it seems to me, and something that ought to be done by people with experience of care and disability. I don't see how a judge can sensibly do it. I very much agree with you that local authorities and/or regulators need to be properly resourced to do this - again I don't think relying on the courts as a backstop is a good solution. I agree with you too that these sort of supported living arrangements need to be brought within the inspection regime.

    But even if some sort of tribunal or judge should have a role, it'd be much better if we simply said there needs to be some sort of special care review jurisdiction. It might sound legally purist, but I don't think it's right to say that people needing intensive care of this sort are "detained", simply so as to obtain the result of getting a judge involved.

    ReplyDelete
  2. Hi Carl,

    It's a pleasure to have you comment on my blog, and I have a lot of sympathies with a lot of what you say. In fact, I felt the same initially, but the more I think about the role of the regulator the more I think they just can't offer the kind of safeguards that are needed. Whether a judge/tribunal needs to be involved in every case is slightly separate issue, as the DoLS is a whole lot more than access to a courtroom. Very, very few cases end up in court - and those that do don't necessarily reflect most people under the DoLS. In fact, if they did it would be extremely worrying that so few end up in court. What I'd like to do is take time to write a full piece taking up the points you raise, but due to time that won't be for a week or more. I'll send you a tweet when I do!

    Cheers, L

    ReplyDelete
  3. I'll look forward to it, Lucy.

    ReplyDelete
  4. I am a Best Interests Assessor, currently working in this role full time. Oddly, although it is not in my own interest to say this, I believe that this judgement (and many others) point more and more to the fact that section 7 Guardianship under The Mental Health Act should have been ammended to safeguard mentally incapacitated people in care settings rather than the inception of a completely bureaucratic monster where we continue to have daily debates about what is and isn't a deprivation of liberty. Which way will the wind be blowing next week?
    Oh . . . and the added benefit of section 7? Access to Mental Health Review Tribunals, which are quicker, more efficient and in a local place for the person. CoP or MHRT? Know which I'd prefer as a service user or carer.
    Richard Jones has been right all along . . .

    ReplyDelete
  5. From my position as a practitioner with fairly solid experience of the social care sector and none of the legal areas, I have to say I think that it is not possible to overemphasise the toothlessness of the regulation regime. While that, alone isn't a reason to depend on a legal context, it is a fact that the knowledge of the law is not a forte of those that seek to enforce it.
    DoLs exist is to bring people in these specific circumstances the same rights under the law that everyone else enjoys and expects as a matter of course.

    As Lucy says, the role of DoLs was to give a role below the law courts to authorise deprivations of liberty in these circumstances but we mustn't brush these situations under the proverbial carpet and limit the scrutiny solely to regulators. This is an issue for everyone not just those with experience of care and disability.

    ReplyDelete
  6. Thanks for your comments Ermintrude2 and Anonymous BIA. On the Guardianship v DOLS, I think that's a really interesting point. I'd really like to do some research comparing the MHRT and CoP DoLS processes. I'm not sure that Guardianship offers quite the same protections as DoLS, and when I've talked to lawyers and judges about tribunals for DoLS they've often commented that the legal points to be determined are much more complex and contested than under guardianship. Although I definitely take your point about DoLS being a bureaucratic monsters... have you read Roger Hargreaves' paper to that effect? I really recommend it:

    HARGREAVES, R. 'The Deprivation of Liberty Safeguards - essential protection or bureaucratic monster?'. Journal of Mental Health Law, Winter 2009, 117.

    On the DoLS v regulation point, I'm with Ermintrude2, and currently in the process of writing a lengthy post about why I don't think even with a brilliant care regulator, it's the job of inspectors to 'police' the Mental Capacity Act.

    ReplyDelete
  7. I liked your commentary Lucy. I think Munby LJ and Carl miss an important point and you even understate it to some extent.

    The reason the Cheshire is catastrophic is that is founded on an assumption that the diagnosis and care assessment that underlies the restraint is true and not in error due to mistake, negligence or malice.

    The DoLS do not just cover best interests issues. They actually provide the framework for proving the disability exists. The assessments include -

    MENTAL HEALTH
    Is there a diagnosis at all?

    MENTAL CAPACITY
    The functional test.

    BEST INTERESTS
    Scrutiny of the proposed care plan.

    If it is open to a local authority to say that a restraint is not a Deprivation of Liberty because of a person's disability and therefore they do not need to use the DoLS then they sidestep the mechanism for challenging the existence, nature and degree of the disability. The purpose of the DoLS is to regulate the assessment of P that validates whether he is disabled at all and then to regulate whether the care plan is necessary to accomplish that end.

    The case of P in Cheshire makes it easy to miss the point - but what happens when it is applied to a perfectly competent old lady wrongly alleged to have (say) dementia? She should be protected by the DoLS but under the Cheshire judgement a local authority can just say "No! It is the nature of her disability! No Deprivation of Liberty here!"

    What about (say) a professional person with a disability? Imagine someone with well controlled Schizophrenia, or mild Asperger's Syndrome or a Personality Disorder. All of these conditions are not necessarily bars to an independent life and professional success, however all of them are highly variable conditions that could be used as grounds for detaining someone arbitrarily without legal right of appeal or scrutiny of the DoLS under the regime set out by Munby LJ.

    I do agree with all of you that the present system is nightmarishly bureaucratic and that the built in conflicts of interest (e.g. local Authorities paying professional RPRs on a consultancy basis) are appalling. However the solution is reform and a right of access to a cheap tribunal. I also agree with Lucy's point that a system should be designed so people without families can if necessary succeed in appealing against restraint or detention.

    ReplyDelete
  8. Put another way, one could almost paraphrase Munby by saying that if a person lacks capacity and restraints are in their best interest there is no deprivation of liberty. Since those are the key criteria for the DoLS to be used it is an absurdity.

    ReplyDelete
  9. But the DOLS framework can still be used to test whether the restriction is a deprivation. Firstly it is the DOLS assessments that determine whether the restriction is a deprivation or not, now working on the clarification from the Cheshire West appeal court judgment. So the question for the assessor is whether the measures in place are disproportionate to what P might reasonably expect were they not required. Doesn't that mean a judgment as to whether the staff were facilitating or restricting their liberty? That is surely the issue in the Cheshire case - P was not deprived of liberty but facilitated to lead as fulfilled a life as possible.
    In our authority, for settings like the one in Cheshire W., i.e. supported living arrangements, we use the assessors of the DOLS team to carry out a third party assessment as way of checking whether there could be a DOL - and if there were then we go to the COP. I do acknowledge that the judgment of relative normality might be dependent on which bus we are riding on - if is the Clapham omnibus then the danger is that the standard of comparison could be the far higher liekelihood of P being in a care home or other institutional care than if we are looking out ofthe window of the Bolton bus in a region with one of the highest levels of supported accommodation (in the case of learning disability). So the comparator needs some further development, perhaps by appeal not to relative normality but to the feasible support of positive social roles and experiences.
    But I do agree that "The failure to include supported living services like P’s within the DoLS framework was an oversight that could have been remedied if the government of the day had listened to recommendations in the consultation responses."
    I was reflecting ealier today on the arrangements I saw years ago in Victoria (Aus) in the 1980s which paralleled much ofthe work of the CoP in giving Directions and Declarations here today. It ran like a family court and was impressive in the way it worked to establish best interests on an investigative rather than adversarial model (as some of the precedents from Europe quoted by Munby and others will also have done) - whatever anyone says the CoP is an adversarial context (I know having been cross examined)that is also extraordinarily expensive to operate - a disincentive for cash strapped authorities to seek guidance.
    Now that a lot of the issues have been examined by senior legal minds it is perhaps time to move to a period of 'normal' operation (borrowing from Kuhn's notion of the normal science that goes on between the periodic scientific crises) - with a more proportionate and user friendly legal process to make impartial judgments where authorities need guidance or where there are challenges.

    ReplyDelete
  10. I may easily have 'missed the boat' on this article, but could it be that before the case in question the judicial decision-making surrounding mental capacity, the deprivation of liberty safeguards and adult safeguarding had all become hopelessly intertwined. The policy terms of these three have different objectives, and the decision in Cheshire has done little to bring clarity to the issue.
    To the writer, I was wondering if you had written any of the responses that you considered in the comments section, and where I could find these?

    ReplyDelete
    Replies
    1. Hi Anonymous,

      I think you are correct that mental capacity, DOLS and adult safeguarding are hopelessly intertwined, and not always in a particularly successful way. The policy objectives of DOLS and safeguarding are quite distinct, and the relationship between the MCA and safeguarding is unclear. If you look at No Secrets, it seems to suggest you can do anything you like to a person who lacks capacity in the name of safeguarding, without resort to a court. But rulings like A v A and C and Neary suggest that if there is a dispute, the MCA/DOLS aren't enough - you have to go to court. But they're really foggy on what constitutes a dispute, and it strikes me that LA's (and the courts?) are interpreting this to mean 'in dispute with family' not 'in dispute with P himself' about what happens to P. It's what I call in my head "safeguarding a sack of potatoes" - treating a person as an object that safeguarding is 'done to', rather than an active, empowered and often resistant, person.

      I'm not sure which responses in the comments section you're referring to, but I've written about why the regulator can't 'police' the mental capacity act here:
      http://thesmallplaces.blogspot.co.uk/2011/11/why-no-care-regulator-could-police.html

      Carl wrote a lengthier guest post making his argument, which actually I had misunderstood as him saying that the CQC should address these matters, whereas what he meant was that human rights legislation wasn't the best tool to approach this with:

      http://thesmallplaces.blogspot.co.uk/2011/11/carl-gardner-is-it-useful-to-hitch.html

      And I wrote this post responding to Carl:
      http://thesmallplaces.blogspot.co.uk/2011/11/dols-back-to-drawing-board.html

      Since the ruling in Cheshire, as you probably know, the ECtHR has issued several judgments which suggest that we have gone very far astray from Strasbourg's interpretation of Article 5:
      http://thesmallplaces.blogspot.co.uk/2012/10/thank-goodness-for-strasbourg-kedzior-v.html

      Delete