Why no care regulator could ‘police’ the Mental Capacity Act 2005

Last week, in my commentary on the Court of Appeal ruling in Cheshire West and Chester Council v P, I expressed my disappointment that the deprivation of liberty safeguards would no longer apply to many thousands of adults like P, who as a result of an ‘impairment of the mind or brain’ are subject to very restrictive forms of care.  One of the responses my commentary received was from Carl Gardner, a very talented legal blogger and experienced barrister and government lawyer in his own right.  Carl wrote:

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.

I think Carl has posed a really important challenge to my commentary – that proper monitoring and supervision of the care of P and adults like him is a managerial and regulatory role - and it’s one that I want to take time to respond to in detail.  I want to make it clear that my argument doesn't hang on the current problems within the CQC's regulatory framework, these are problems that would apply to any system that regulated social care providers.

This is an extremely lengthy post (even by my standards), but in a nutshell, my argument is this:

• The kinds of restrictions on liberty permitted by the Mental Capacity Act (MCA) are extremely ethically and legally complex, and require a much higher degree of external scrutiny and expertise than any regulator could ever realistically provide.  
• Many of the issues around restrictions on liberty go far wider than the remit of the regulator, including commissioning decisions (by public authorities or an individual's own family), or decisions by others like doctors.
• The responses of the CQC target the care provider, and yet many of the restrictions on liberty may not be under their control; the levers of the DoLS, however, can target other actors or organisations.

Restrictions on liberty under the MCA touch upon many common law and Convention rights, including Articles 3 and 8 as well as 5 (not to mention equalities and other 'liberty' rights).  I have to say I don't particularly care whether we provide safeguards under Article 5 or under other rights, but my point is that the ingredients contained within the DoLS framework are far more suitable to providing real and effective rights protection for social care service users than other legal instruments.  The issues around Cheshire for me aren't about whether P or others are detained, it’s about whether people as restricted as P and MEG are in any position to defend their rights if they are violated, without a framework like the DoLS.

‘Restrictions on liberty’ under the MCA are never ‘natural’, ‘inherent’ or obvious

Let’s be quite clear that when we’re talking about ‘restrictions on liberty’ under the Mental Capacity Act (MCA), we are not talking about the kinds of restrictions on liberty a person may experience because their physical condition directly limits their activities.  I am talking about restrictions on liberty that are imposed by caregivers, yes - in response to a person’s disability, but nonetheless they arise from social activity not physical impairment.  So, for instance, ‘M’ in W v M [2011] is in a minimally conscious state; she does nothing without the assistance of those caring for her.  I think in the case of M it would be fair to say she is restricted directly by her disability; it is not that she is attempting to undertake activities and being prevented by those caring for her.  To my mind, this stands in direct contrast with the condition of adults who are physically prevented by their caregivers from undertaking certain activities.

I think we should be very cautious about running together disability and restrictions on liberty imposed by caregivers as if they were natural and inalienably conjoined.  To my mind, the following kinds of statements to the effect that people like P are restricted not by their carers but by their disability are highly problematic:

‘Each lacks freedom and autonomy dictated by their own disability, rather than because it is imposed on them by their carers. Each is under the continuous supervision and control of her carers (and in the case of MIG, of her foster family rather than “staff”) so as to meet her care needs rather than to restrain her in any way’ MIG & MEG (2010), [233]

‘...some people are inherently restricted by their circumstances and that the “normality” with which we are here concerned is the normality of the life of someone with the relevant condition, not the normality of the life of the able-bodied man or woman on the Clapham omnibus.’ Cheshire appeal, [87]

The comment from MIG and MEG seems to me to be both factually and legally incorrect.  It is true that the restrictions they are subject to are related to their disabilities, inasmuch as they would doubtless not be subject to those restrictions if they had no disability, but it is obviously true that their carers are imposing restrictions.  And it is also legally true that the restrictions MEG is subject to do amount to restraint, as defined under s6 Mental Capacity Act:

(4)For the purposes of this section D restrains P if he—

(a) uses, or threatens to use, force to secure the doing of an act which P resists, or

(b) restricts P's liberty of movement, whether or not P resists.

And it is true that P is subject to some ‘inherent restrictions’ as a result of his impairment, but wearing a bodysuit, and being subject to continuous supervision and control by his carers are neither natural nor essential to his condition.  They are a social response to his condition.  I’m not saying that these social responses are necessarily wrong, I’m just saying that they carry ethical and legal considerations that are skimmed over in these medicalised and individualised accounts that glibly attribute restrictions to disabilities.

The danger with naturalising or essentialising such restrictions on liberty, rather than acknowledging that they are externally imposed by caregivers, is that we banish them from proper scrutiny.  It may be comforting to think that certain restrictions follow naturally from certain kinds of disabilities, and that caregivers always get these restrictions right because it’s just obvious and common sense what restrictions a disabled person should be subject to, but this is not the case.  If it were obvious how to respond to such disabilities we should not see such massive historical and cultural variance in what restrictions are applied to disabled people.  Cage beds in Eastern Europe would not be a subject for international outcry (see also this BBC report), we would not recoil in horror from schools in the USA that administer electric shocks as ‘correctives’ to autistic behaviours, nor respond with shock to a Dutch psychiatric hospital tethering a young man with learning disabilities to a wall.  Whilst undoubtedly one can attribute a certain amount of abuses domestically to foul play and a shocking lack of empathy, many abuses arise not because carers act ‘unnaturally’, but because they lack the experience, skills, expertise or resources to do otherwise.

Restrictions are highly context sensitive and contestable

I want to take a few examples of the kinds of restrictions on liberty that are endemic in social care and destabisise the idea that caregivers will always get them right, then consider whether it is realistically plausible that a CQC inspector – say one that visits annually – could pick up on these.  The examples I will deal with are: sedating medications (‘chemical restraint’); ‘mechanical’ restraint; physical restraint; seclusion; access to the community; contacts with people outside the institution.  These are – I will argue – the types of issues that mental capacity and best interests assessors could very well pick up on under the DoLS.  Furthermore, the responses available under the DoLS are much more appropriate for dealing with these kinds of issues than the powers available to the CQC.

Sedating medications

Sedating medications are very much a live issue in social care.  Research for the Department of Health found that annually 180,000 people with dementia were medicated with anti-psychotics, of which only 36,000 (20%) may derive some benefit, and 1,800 deaths and 1,620 cerebrovascular adverse events may be attributed to their use.  Even if they do not cause injury or death, their effects can be extremely harmful (see, e.g., this film).  I am unaware of any equivalent research conducted into the administration of sedatives and other kinds of anti-psychotics for other groups in social care, but my own experience suggests it may be fairly widespread among adults with moderate or severe autism, although the effects are not always so extreme.  Certainly I have worked with people who, like MEG, are prescribed Risperidone to manage their behaviour – and although the prescription will always ostensibly be for therapeutic purposes, often the reality is that it is administered because staff cannot find a better way to respond to challenging behaviours.

By way of contrast to community settings, if patient detained under the Mental Health Act (MHA) were prescribed anti-psychotics for longer than three months, then a Second Opinion Appointed Doctor’s (SOAD) approval would be required.  This procedural safeguard is imposed because prescribing such powerful psychoactive medications without consent is a very serious decision, often made upon finely balanced issues that require considerable expertise and experience.  According to the Mental Health Act Commission (MHAC) in 2010, almost a quarter of SOAD’s make some change to the treatment (p85).  Under the MCA any treatment to an patient who cannot consent must be in their best interests and the least restrictive option, but there are no automatic safeguards to check this is the case.  The report cited above suggests that often it is not the case, and worryingly so.  If a psychiatrist in a hospital can get treatment decisions wrong, then it is likely they can in the community as well, and even more likely perhaps that a non-specialist general practitioner might.  But it is obviously not the role of a CQC inspector visiting once a year to check the prescriptions of all care home residents.  They are there to monitor the care home, not the doctor, and I doubt many CQC inspectors would feel confident challenging medical opinion.

Minister for Social Care Paul Burstow told The Telegraph that ‘prescription of antipsychotic drugs “without clear clinical justification”, amounted to “a deprivation of liberty”’ that should –according to the Minister – be dealt with under the safeguards.  There’s a problem here: nobody is going to invoke safeguards on the basis that they are administering dangerous sedating medications “without clear clinical justification”.  The whole point of procedural safeguards is to circumvent a person’s assumption that they are doing the right thing, to introduce a fresh pair of eyes who may see it from a different perspective.  If procedural safeguards are going to apply at all, they must apply even where people are acting in good faith.  I’m not convinced that the DoLS are the best framework for addressing this issue, but I do feel confident that a DoLS mental health assessor (who must be a doctor approved under s12 MHA or have 3 years of post-registration experience of the diagnosis and treatment of mental disorder, see Code [4.32]) would query whether such medication was appropriate.  And a best interests assessor would be likely to ask probing questions about how and why it were administered, and whether other approaches might be less restrictive and more beneficial.  Other procedural approaches than the DoLS could certainly remedy this issue, but currently there are none.  Without DoLS ask yourself this: what are the odds of a heavily sedated dementia patient challenging an inappropriate, soul destroying and potentially lethal prescription in court?  From the perspective of providing people with ‘real and effective rights’ what does it matter what the MCA says on paper, if the prospects of it being enforced in practice are vanishingly small?

Environmental and mechanical restraint

Environmental and mechanical restraints are measures that are put in place by a care provider that restrict a person’s liberty of movement, without necessarily requiring the ongoing presence of staff.  Environmental restraints include locks and ‘baffle locks’ on interior or exterior doors, which only staff can operate.  Some mechanical restraints are very deliberately intended to restrict movement, others may not always be deliberately imposed to restrict liberty, but might serve as a form of restraint all the same. Mechanical restraints include, for instance, bed rails to keep people from leaving their beds.  Low seating may mean physically frail patients cannot get up and walk around.  Lap-straps may tether people to their wheelchair.

Use of mechanical restraints have been implicated in serious cases of abuse.  In Cornwall, inspectors found a man with learning disabilities who had been tied to his wheelchair for 16 hours a day and then to his bed at night.  I have personally seen a service where a man with severe autism was continuously restrained by staff for most of the day using a rope, tied around the service users’ waist, and held by a lanyard on the staff member’s wrist.  Such practices are not generally perpetrated because staff are wicked, but because either they lack the skills, knowledge and confidence to challenge or question these practices, or because the environment itself is entirely inappropriate for that service user.  In the situation I witnessed, I believe the service itself was unsuitable for this individual; the grounds were open, the building full of potential risks to staff and service users, and part of the source of the individual’s aggravated behaviour was the presence of other service users.  That, and boredom I suspect.  Of all the forms of restrictions I will discuss here, mechanical restraints are probably the most likely to be spotted by an inspector.

But an inspector is only likely consider whether restraints are the ‘least restrictive’ possible within a particular service, not whether the placement of the individual in that service is itself inappropriate.  CQC inspectors do not inspect local authorities any more, their role is not to question whether an individual should be in a particular environment in the first place, their role is to consider how well that particular service is being run.  By contrast, a DoLS best interests assessor can ask the question of whether a service itself is the cause of challenging behaviours, and whether different placements might be less restrictive and more beneficial.

To return to mechanical restraints, the Mental Health Act code of practice states that any form of restraint ‘which involves tying (whether by means of tape or by using a part of the patient’s garments) to some part of a building or its fixtures should never be used’ [15.31].  But whereas for physically mobile people what constitutes tethering is fairly obvious, as the MHAC have pointed out this matter is far less clear for patients who are physically disabled, frail or prone to falls.  The MHAC suggested that a system of notifications should be used to ensure that where such mechanical restraints were used, they could be scrutinised to ensure they were being applied in an appropriate fashion.  The idea was initially taken up by the Department of Health, but foundered when the MHAC pointed out that given the people who are most likely to be subject to mechanical restraint will not be eligible for detention under the MHA, the scheme would need to apply to non-detained people as well (2009: [5.20]).  As things stand, therefore, there are virtually no checks and balances to ensure that mechanical restraints – including those which are prohibited for detained patients – are applied sparingly and appropriately in social are.  Although CQC inspectors may flag these issues up, they are unlikely to have time to closely consider whether – for instance – a person like P must use a wheelchair lapstrap when he leaves the premises to stop his posture from slipping, or to ensure he does not abscond.  Whether, for instance, patients in a nursing home living room are all happily resting in comfy chairs, or just unable to get out of them.  Whether bed rails are to prevent falls, or to cut back on night staff.  It is my view, that DoLS assessors would have the resources and the inclination to consider these issues.

Physical restraint

Like other restrictions on liberty, the need for physical interventions are highly contextual and may depend on whether an environment is well designed, whether a person’s needs are being met or there is some source of distress causing their challenging behaviour.  Sometimes creative solutions can be found that prevent carers from having to rely on physical intervention to keep somebody safe.  Sometimes those solutions require external input from experts.  The Cheshire case was a good example of this: in the High Court Baker J initially rejected requests for an assessment of P by an Independent Social Worker, saying he saw no need for it.  However, it transpired that the local authority support workers had misled the court as to the degree of physical interventions that P was subject to.  The Independent Social Worker, when she conducted her assessment, found that P’s care plan was defective, there was no proper policy in place for the use of physical interventions, and she suggested a measure (P’s bodysuit) that could reduce the need for these interventions.  This issue in the Cheshire case came up only because the Official Solicitor had become concerned that the degree of physical restrictions in P’s care might amount to a deprivation of liberty.  It was because of this concern that an independent social work assessment was conducted, and the care plan was significantly improved to ensure restrictions were appropriately carried out, documented and kept to a minimum.  Had the OS not raised this issue, I very much doubt an inquiry into those restrictions would not have been carried out, and P would be subjected to far more physical interventions than necessary.

I do not suggest that such cases always require the scrutiny of a judge, but evidently the expert advice given by the independent social worker was instrumental in ensuring that interferences with P’s liberty of movement were kept to a minimum.  These are the kinds of restrictions that would be scrutinised by a best interests assessor, who herself is very likely to be a social worker with considerable experience in mental health, not to mention likely to have training on the MCA, MHA and human rights law as an AMHP.  It is within the remit of a CQC inspector to check whether support staff have undergone training in restraint practices, or comment on any acts of restraint they have observed on a day long visit.  It is improbable in the extreme that they could be expected to offer the degree of scrutiny to an individual care plan that may be necessary to address complex risks such as people like P may be subject to.  Without wishing to cast aspersions on CQC inspectors, they are generalists – not specialists – the same inspector may visit dementia care homes one day, a dental surgery the next, and a learning disability service the next.  The management of risks for dementia patients or highly mobile adults with learning disabilities may well require a degree of expertise and experience not required for the regulatory role.

Seclusion

Seclusion is defined in the MHA code of practice as ‘the supervised confinement of a patient in a room, which may be locked. Its sole aim is to contain severely disturbed behaviour which is likely to cause harm to others’ [20].  Forcible confinement is held to have no therapeutic value for the secluded individual.  Despite this, services may sometimes have to resort to seclusion in order to discharge their duty of care to other service users, visitors or staff members.  In psychiatric detention, the use of seclusion is governed by the MHA code of practice.  The MHAC monitor seclusion practices, and their most recent report raised concerns about seclusion in conditions that violated detained patient’s dignity and human rights.

Seclusion is used in social care, although it is often not described as such.  I’ve seen staff forcibly confine people to their bedrooms and call it ‘withdrawal’ or ‘time out’.  It’s not always done using locks: in one service I temped at the bedroom doors opened outwards into the corridor and when staff were tired –as they often were on 12.5 hour shifts in very demanding services – they would sit with their backs to a service users’ bedroom door, and brace their legs against the other side of the corridor.  The service user couldn’t get out, and they could rest, chat, or read a magazine.  It has to be said that these kinds of practices are unlikely to be picked up on by an inspector, DoLS assessor or even a manager, since staff can readily get up and leave no trace of the confinement.  I include the example only to point out that the absence of locks doesn’t mean seclusion doesn’t take place.

The deprivation of liberty case C v A Local Authority (2011) was concerned with seclusion in a residential school.  I think it’s an interesting question whether C would be considered deprived of his liberty post-Cheshire; certainly there was no dispute about alternative residences, and I’m not convinced the restrictions were particularly unusual.  I hear not infrequently from concerned carers about seclusion being used in services, including residential services and day centres.  In any case, the Court of Protection issued a remarkably creative judgment.  They held that since restrictions on liberty were only lawful under the MCA if they were in a person’s best interests, and since it must be in a person’s best interests for best practice to apply, and since most people agreed that the MHA code of practice gave ‘best practice’ guidance on seclusion and restraint, the seclusion and restraint of an incapacitated adult with a mental disorder could only be lawful if it followed the MHA code of practice guidance.  I think that’s a great judgment, my only concern is who will actually check, outside of a detaining institution, that the MHA code of practice is being followed?  I bet if you rang round most registered managers of community care services, they have no idea what the MHA code of practice even is, let alone that they are supposed to be applying it for the purposes of seclusion and restraint!  I also bet, if you asked CQC inspectors, they would be unaware of this judgment as well.  By contrast, DoLS assessors are expected to keep up to date with MCA and deprivation of liberty case law and so should be aware of the ruling.

It is certainly possible that regulatory inspectors might pick up on issues around seclusion, but in the case C v A Local Authority it is notable that the use of seclusion seemed actually have stemmed from an Ofsted inspector expressing concern that C’s roaming around naked was a violation of his dignity.  The case provides a great example of how complex the issues are around how and when it is appropriate to impose restrictions on liberty; how these issues are not obvious or natural or all.  The school’s psychologist had treated C’s desire to be without clothes as a manifestation of his inability to understand social norms.  The use of seclusion was aimed at conditioning him against this.  In striking contrast, the Court of Protection heard evidence from a consultant psychiatrist that C experienced neurological pain from wearing clothes.  The judge directed the local authority to design an entirely new package of care, that required a purpose-built flat for C, and specially trained staff.

My point is this: no regulatory inspector is going to have the expertise to pick up that C was experiencing neurological pain from wearing clothes, nor – I should expect - the confidence to challenge an in-house psychologists’ view.  That is not their role, their expertise is far more general than these issues.  Furthermore, it is not within the CQC’s powers to direct the local authority to commission an entirely different package of care – their concern is with how well the particular service is run.  Responsibilities for care plans that use seclusion and restraint are distributed across commissioners as well as service providers, and it is simply not within the CQC's remit to consider this.  There is much more chance a mental health or best interests assessor might challenge a care plan that used seclusion to cope with nudity, and they have far more appropriate powers to remedy its inappropriate use.

Access to the community

Just a few words about access to the community.  Much of the deprivation of liberty case law considers how often people can access community based activities in considering whether they are deprived of their liberty.  The focus has shifted away from this now, and I’m not sure that a service that offered very few opportunities for community activities would be so ‘abnormal’ as to quality for DoLS post-Cheshire.  Often access to the community is not limited by the intentions of the care provider, but by a lack of provision of resources from the commissioner of the care (be they the local authority, the PCT or even a family member).  A CQC inspector cannot direct a local authority or family member to cough up so that a person can get out and about; nor are staffing levels even part of the current inspection framework.  Meanwhile many best interests assessors have told me how they have used conditions for authorisation under the DoLS to ensure commissioners and managing authorities work together to ensure a person has decent community access.  Sometimes noticing where such access hasn’t occurred requires close attention to log books; the care plan does not always live up to reality.  Realistically, a regulatory inspector is not going to go through the daily logs of all residents to check whether they’ve been out of the building at all over the past year.  It might get picked up on, but it’s pretty unlikely, and they don’t have the powers to address the resourcing issues.  However, I know that some good best interests assessors would do this, as they have the resources to focus on individual cases.

There have been cases where a person’s access to the community is not limited because of resources, but to prevent them getting up to perceived mischief.  In D Borough Council v AB (2011) ‘Alan’ was deprived of his liberty in order to stop him having sex, and we can infer from the case that he had previously been able to catch buses and attend the doctor’s surgery alone (because it was alleged he had acted sexually inappropriately in those places, [7]).  Alan may very well have wanted to challenge these restrictions, but I’m not sure it would count as a detention post-Cheshire.  Removing the DoLS framework would remove Alan’s access to advocacy, and external scrutiny to check that the measures really were still necessary.  It’s by no means obvious that Alan should be deprived of his liberty just because of his disability.  But at the same time, without a framework like the DoLS it's very hard to see how somebody like Alan could realistically challenge these kinds of decisions.

Social contact with people outside the institution

Finally, some issues that come up under the DoLS concern disputes between loved ones and services or authorities, not over residence questions but over contact.  Local authorities, care homes and hospitals (and supported living services as well, no doubt) can sometimes be quite tyrannical in blocking guests they perceive to be troublesome or unsavoury.  Sometimes there may be good evidence for safeguarding concerns, but sometimes care providers and public authorities proceed as if such evidence existed when in fact these decisions are founded upon suspicion and rumour.  Aside from possible safeguarding issues, we know that some services – Winterbourne View springs to mind – operate very restrictive rules about when and where visitors can come.  This has the effect not only of compromising a person’s sense of having a home within a particular environment, but also removing a source of scrutiny of care practices therein. 

Like many of the issues I’ve discussed here, you could respond that this is an Article 8 and not Article 5 issue, but I’m not really interested in the semantics of this.  The point is that the DoLS provide scrutiny, advocacy and leverage for restrictions that clearly engage human rights issues, whatever heading you put them under.  But the MCA, quite simply, is not an accessible forum for most people in community care settings to challenge the decisions and restrictions made by others.  And even for family members, the DoLS (in theory) provides support from advocates, legal aid and a persmission-free route to court to settle contentious issues that cannot be resolved in any other way.  Outside the DoLS framework, challenging these decisions can be very difficult and costly indeed.

Final comments

I’ve gone on rather longer than I meant to, so I’ll bring this to a close.  My point is simple: for all its surface simplicity and apparent good sense, the issues underlying the MCA are highly complex, highly contestable, and there are very few procedural checks and balances in social care to ensure restrictions on liberty are appropriate and not abusive.  Many of the kinds of issues that come up in social care are unlikely to be spotted by a regulatory inspector, but even if they were it is often not within the regulators’ powers to untangle the complex responsibilities of commissioners, service providers and others.

The DoLS, meanwhile, offer independent procedural scrutiny from assessors with considerable experience and expertise, often much more so than commissioners or providers of care have in relation to human rights issues.  They also come with remedies that are far more appropriate than a regulatory warning, requirement, fine or threat of closure.  Cases may not always need to go before court (my research suggests that by Christmas 2010 as few as 0.5% of DoLS cases ended up in court, although the figure is said to have risen after the Neary ruling), but there are levers within the DoLS framework that do not draw upon judicial resources.

The MCA, for all its elegance, places very high demands on incapacitated adults to uphold their own rights; by way of contrast the DoLS puts in place a system of procedural safeguards to protect the rights of disabled people which make very few practical demands on them.  The DoLS are undoubtedly bureaucratic, badly drafted and riddled with holes, but they offer a much better guarantee of 'real and effective' rights protection than the MCA proper.  We are very aware of the difficulties patients under the MHA may have in upholding their rights, that is why we have so many procedural checks and balances, but we seem to be strangely, perhaps wilfully, oblivious to identical issues in community care