DoLS: Back to the drawing board?

Is it time to go back to the drawing board with DoLS?  This week the Mental Health Alliance (MHA) published a draft report on the DoLS (pdf) in which they declared 'The DoLS scheme  is not fit for purpose in its present form'.  The report release coincided with an excellent program by BBC Radio 4 on the DoLS, The Report, which interviewed several key players in the DoLS - including Charles J, the Official Solicitor and Roger Hargreaves who authored the MHA report.  Taken together with conflicting reactions to the Cheshire ruling, there seems to be real confusion about what the DoLS are for, and how they should be applied.  I sense a real appetite for reform, but less consensus of what those reforms should consist in.

I think part of the difficulty is that there are multiple issues around human rights in social care, and the DoLS contain various ingredients that may be useful remedies.  The situation reminds me of Maslow's Law of the Instrument: "It is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail."  One of the difficulties that has come up repeatedly under the DoLS, is of course conflict over the meaning of 'deprivation of liberty'.  As Charles J said when interviewed for The Report 'What is deprivation of liberty? ...you ask three people you’ll probably get four answers.'  And those four answers are likely to correspond to the issues those particular people are concerned about.  A comment by Carl Gardner in response to this post really made me consider: although these are 'human rights issues', is it actually helpful to hitch them to a human rights instrument?  This might sound strange, but I've posted Carl's comments as a guest blog as they contained much food for thought.  The debate about whether the DoLS should be linked to Article 5 is also raised by Roger Hargreaves in the MHA report when he says:

The term “deprivation of liberty” gives a negative impression which is creating resistance on the part of service providers. Whilst it is recognised that this term has for legal reasons to be used in the statute and guidance, the government should consider, at the first major review, whether an alternative title could be adopted for the scheme as a whole which would present it in a more positive light. The original intention was to title it “Protective Care” which had much more positive connotations

Now, I don't think the MHA is recommending that the DoLS should be decoupled from Article 5 except in name, but I wonder if we actually should consider this. The problem with hitching them to Article 5 is it leaves the degree of protection available highly vulnerable to the gusty winds of change in human rights jurisprudence.  Neither in Strasbourg nor domestically has the Article 5 jurisprudence been especially consistent or clear.  Potentially the next kettling or control order case could leave thousands of disabled people without safeguards for the restrictions they are subject to.  I personally tend towards the view that restrictive practices in care like those P are subject to do amount to detention, but I think we have to be honest and say that this is really a very subjective and almost aesthetic judgement.  And it's certainly a view that is very distasteful to many, to say that society's responses to a person's disabilities may mean that he will be detained wherever he is.  And I think the debates around this point are becoming a bit "how many angels can dance on a pinhead".  It's a distraction, when nobody is really of the view that P shouldn't be entitled to any protection to ensure that restrictions are appropriate and kept to a minimum.  So instead of arguing about whether he is detained or not, perhaps what we should look at are other ways of protecting his rights that are less clunky and controversial than DoLS.

Some issues - issues like those that came up in Neary - will certainly need access to judicial consideration, but one of the issues that was raised in The Report was whether that consideration needs to come from the Court of Protection, or could it come from a Tribunal process.  I have a bit of habit of pouncing on lawyers with this question when I meet them, and I get very mixed responses indeed.  Some, like Ben Conroy  when he was interviewed in The Report, prefer the Tribunal system as it is "fast and accessible" whereas "DoLS is extremely slow, very expensive and very time consuming."  Others raise issues about representation - why do most DoLS cases require the involvement of the Official Solicitor and barristers, when few mental health tribunals do?  Some are concerned that P, the person at the heart of the case, is unable to attend the Court of Protection because of distances, and perhaps because hearings tend to be much longer than tribunals.  But to counter that, as the Official Solicitor said in The Report 'There is a tension between the necessary protection and speed.'  It seems to me that the issues coming up in these contentious cases may be far more complex - or at least sprawling - than the issues a mental health tribunal address; they are in some respects more comparable to family law cases around child protection.  When I've asked judges this question, they've pointed out just how complex the issues of mental capacity, best interests and deprivation of liberty are to settle - but then, I suppose they have tended to hear only the most complex cases so that may not be a fair view.  Furthermore, tribunals' powers are really much more restricted than the Court of Protection, and I think it's worth considering whether if we expanded the issues and powers to those under the Mental Capacity Act the cases might end up just as lengthy as under the DoLS.  My point is - I think the delays may be a function of the Mental Capacity Act itself, and not the venue.  I think there is a real need for some detailed comparative research to compare the processes and issues that are involved in mental health tribunals and the DoLS to see if the procedures can be trimmed down in any way, and what kinds of issues are holding up the process.

I hope that when Paul Burstow reads the MHA report and listens to the BBC program he considers opening a review of the DoLS.  My feeling is that in the longer term, things cannot remain where they are.  At present it seems to me that the DoLS are costing a great deal of money to administer, and they are not being administered well.  Because of the problems in the system, the rights guaranteed are not "practical and effective", but theoretical and illusory.

And so, if you're still reading, I'd love to hear your views on the following points:

• Could guardianship replace DoLS, as some have suggested?
• What are the advantages and disadvantages of appeals going to a tribunal system rather than the Court of Protection?
• Could a tribunal system be usefully expanded beyond DoLS to address other disputes about the care and treatment of people who lack capacity?
• Could the Court of Protection process be improved or streamlined  in any ways?
• Do we need procedural safeguards in social care around restrictions on liberty under the Mental Capacity Act, and perhaps around medical treatments as well?  And do these safeguards need to come under DoLS?
• Should care providers and public authorities be subject to any penalties if they fail to follow the MCA with respect to serious medical treatments (e.g. failures in IMCA referrals) or restrictions on liberty?
• Should people still have a right of appeal if they are objecting against their confinement, but there is no viable alternative to their placement?
• How could the CQC improve their leadership around the MCA and DoLS?

If you've got any views on this, please do write them in the comments below or drop me an email (lvs202@exeter.ac.uk).  If I get enough I'll collate them and put them on the blog - so do say whether you'd be happy for me to include your comment and name or not.