2. DoLS v Guardianship: Appeal and review mechanisms

This is the second post in a series of three comparing guardianship under the Mental Health Act 1983 (MHA) with the Mental Capacity Act 2005 deprivation of liberty safeguards (DoLS).  The first post explains why some people have argued that guardianship would offer better safeguards than the DoLS against arbitrary detention.  In that post I explore the criteria for entry into each regimes, the coercive powers each regime affords public bodies, and the role they give to families.  In this, the second post, I will look in detail at the appeal mechanisms, and consider whether they are compliant with Article 5(4) of the European Convention on Human Rights.  If you are short of time, I strongly recommend you skip to the third and final post, which offers a summary and some thoughts on why both regimes for community based detention will have significant difficulties in practice.

Not only entitled, but enabled...

Any framework providing for deprivation of liberty that is compatible with the European Convention on Human Rights must ensure that, in accordance with Article 5(4): 

‘Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.’

As I have argued elsewhere, I am not at all convinced the DoLS currently achieve this. The problem is that they follow the letter of the law but not the spirit. A person detained under the DoLS is 'entitled' to take review proceedings, but the reality is that the majority of people deprived of their liberty under the DoLS (or under guardianship if such a framework were to replace it) will find it very difficult to access their right of appeal under s21A MCA without the support of others around them. The key point is summed up by Jackson J in Neary v Hillingdon: 

‘...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.’ [202] (emphasis mine)

I am unaware of any Convention jurisprudence on this point (I just had a look through Mowbray’s excellent book on positive obligations, and can see nothing in there on this issue). I suspect this is because if a person is enabled to take their case to the ECtHR, they are almost certainly likely to have been enabled to have this issue heard in a domestic court, and so the enabling issue is unlikely to reach this point. I would like to think, though, that the ECtHR would endorse Jackson J’s comment on positive obligations under Article 5(4). 

Review of detention by the supervisory body 

As Richard Jones points out in his 2007 article, guardianship does place much stronger explicit requirements on the supervisory body (which is to say, the local authority), to monitor the person’s welfare than DoLS do. A guardian must visit the person at least once every three months, and they must be visited by a doctor once a year (regulations). By contrast, and somewhat inexplicably, under the DoLS it is the responsibility of the relevant person’s representative to ensure the managing authority is complying with the conditions of the DoLS authorisation, and the responsibility of the managing authority or the representative to alert the supervisory body to any change in the person’s circumstances which may mean the authorisation criteria are no longer met. Given that it is almost always the case that the supervisory body are held responsible for unlawful detentions, and that detention that does not comply with the conditions and criteria under the DoLS would be unlawful, this seems a rather strange state of affairs.  It seems far more sensible that the supervisory body - not a relative or the care provider - take on the monitoring role.  Especially given that they – not the managing authority or the representative – are those with the experience and knowledge to determine whether the byzantine processes of the DoLS are being followed appropriately.  

Guardianship also comes with an automatic renewal requirement (within the last two months of the authorised period), which requires the appropriate officer to produce a report stating that the conditions for reception into guardianship are still satisfied (s20(6) MHA). In contrast, a supervisory body under the DoLS can refuse to conduct a review, even if requested by the representative, and can also rely on old assessments to renew an authorisation if they believe they are still accurate and they were conducted within the last 12 months. It is hard to know how they could satisfy themselves of this without conducting a further assessment; and in Neary an inadequate review was held to breach Article 5(4). This means that potentially a person could be detained without any kind of visit from the supervisory body for up to a year, which surely cannot be an acceptable state of affairs. In this respect, the DoLS require significant amendment to offer a robust monitoring and review framework, and could borrow a lot from the guardianship regime.

Appealing against a detention in court

Unlike detention under the MHA, neither the DoLS, nor guardianship, automatically refer detention to the court/tribunal for review.  Under the DoLS, it is envisaged that a person’s ‘representative’ (usually family or a friend, sometimes a paid advocate), or an IMCA will help them trigger the appeal process. But as the Mental Health Alliance pointed out in 2010: 

[The safeguards depend] far too much on family representatives who may be elderly or disabled themselves, and there is far too much scope for supervisory bodies to protect their actions from scrutiny by selecting representatives who agree with them, by removing those who do not, or by failing to provide them with enough information or support and by batting away requests for review. 

The Neary case is a good example of how disinformation, deceit and the power imbalance between a supervisory body and a family representative can dissuade a person who is manifestly opposed to the detention from challenging it in court. This may be particularly the case if the supervisory body is funding a package of care a person and their carer may rely on.  In the Neary case, the role of the IMCA countering this disinformation and ensuring Steven's father understood the right of review was pivotal. 

Where representatives who support the detention are selected over those who do not, others may still trigger the s21A MCA appeal mechanism, but they may have to pay a fee to the Court of Protection, and they will not be automatically entitled to legal aid (although they may be entitled to it subject to means and merits tests). They may also have trouble drafting an application without any right to view the documentation pertinent to the detention. But a more serious problem, in my view, will occur when all parties bar P support the detention. Under such circumstances, how is P to have his appeal heard? The answer to that should be through the action of a s39D IMCA. Under s39D MCA a supervisory body must instruct an IMCA if it appears to them that ‘without the help of an advocate, P and R would be unable to exercise one or both of the relevant rights’. I have to say, I would feel more comfortable if that said ‘P or R’, given that the conjunction ‘and’ suggests that P and R’s interests always overlap. In any case though, I would imagine that a court called upon to interpret this would have to do so in accordance with Article 5(4) ,which nowhere says that a person’s right of review for detention is conditional upon their family supporting that right. And so, if P is objecting but R isn’t helping them appeal, I would think a supervisory body would be duty bound to appoint a s39D IMCA to help them exercise their right of appeal. That IMCA is then duty bound to help P ‘exercise the right to apply to court, if it appears to the advocate that P... wishes to exercise that right’ (s39D MCA). The question of whether P’s appeal should be heard even if he does not object – given that he lacks capacity in relation to where he should reside – is also an issue worthy of consideration in relation to Article 5(4). 

I think the importance of s39D IMCA’s in triggering the appeal mechanism may be vastly underestimated by many players in the DoLS.  A lot of professionals (health and social care, legal too) seem to regard IMCA’s as if they are some kind of underqualified non-experts who take up time and resources snooping around their professional activities and asking annoying questions. This may well be why referrals are so much lower than you would expect from the number of authorisations, and why – when I checked a year ago – a third of local authorities had never made a s39D referral (I have been trying to get more recent information on this  from the Department of Health since March 2010; I won’t bore you with this sorry saga of obtuseness and non-transparency, but they claim they will now be publishing something on it this year). To see IMCA’s in this way is to fail to understand that they are the only real guarantee of a right of review where there are serious conflicts of interest between P and P’s representatives, or where P’s representatives does not appeal on their behalf for other reasons. It is also to fail to understand that whilst they may not have a doctors’ or social workers’ professional expertise in relation to health and social care, they are expert in the MCA itself. 

I have to say, given the very low numbers of reviews, and the lack of mentions of IMCA’s themselves triggering appeals, I do worry that IMCA’s are not aware of their statutory duty to help P exercise his right of appeal. On any reading list for any IMCA should be the ruling in A v A Local Authority (2011), which makes clear that P has a fundamental right to have his appeal heard even if all parties are in agreement that detention is in his best interests. Whether or not an IMCA should help P appeal does not turn on whether it is in his best interests; likewise whether or not litigation friends should help P appeal does not turn on whether it is in his best interests.  Article 5(4) rights are absolute, not conditional.   I do wonder if in future we may see litigation against IMCA’s themselves if they fail to assist P in exercising his right of appeal. As an aside, though, this may be a moot point if Cheshire is taken to mean that P is not detained unless P’s friends or family are offering an alternative residence and disputing his placement... 

In terms of ensuring a person is assisted in their right to an appeal, guardianship may be just as deficient as DoLS. It comes with no automatic referral for a review by a court. In fact, his rights of review may be somewhat weaker than under the DoLS. P can apply to the tribunal for discharge once within the first six months of the day the application was accepted (MHA s66), once within the next six month period of renewal, and once per year thereafter.  By comparison, s21A MCA contains no such limitations on when a person can apply to the Court of Protection, or how many times. 

If P’s nearest relative has already objected to reception into guardianship, then P will be discharged or the case will come to court in the guise of whether the nearest relative will be displaced. But if P’s nearest relative does not object, then unlike under the DoLS nobody else but P can bring an appeal. For example, other family members who object may be unable to, although they could attempt to support P in mounting an appeal. As under the DoLS there is provision for advocacy support for P in the form of IMHA’s (Independent Mental Health Advocates); s130A MHA provides: 

‘The appropriate national authority shall make such arrangements as it considers reasonable to enable persons (“independent mental health advocates”) to be available to help qualifying patients.’ 

This seems to be much weaker the hard duty of s39D MCA to appoint an advocate to help a person who is failing to exercise the relevant right when it might be reasonable to expect them to. Of course, if guardianship were to be used for detention one could perhaps read the Neary ruling into it – that failure to appoint an advocate to support a person to exercise their Article 5(4) rights is in itself a breach of Article 5(4) [32]. 

In summary, I think if guardianship were to supplant DoLS as a mechanism for review of detention it would be best of all if reviews by a court came up automatically as under MHA detention cases. In fact, to fail to do so might in itself be discriminatory under Article 14 ECHR in comparison with the MHA regime. In The Secretary of State for Justice v RB & Anor [2011], Arden LJ accepted that if tribunals were able to discharge people to conditions amounting to detention in the community, the secretary of state would be duty bound to show why this lesser right of review for detention was not discriminatory under the Convention [64]-[65]. In a wider sense, I would suggest that the weaker rights of review under the DoLS than the MHA may also, already, be potentially discriminatory under Article 14.

But simply tagging an automatic review mechanism onto guardianship may not be enough to address the Article 8 issues that increasingly plague appeals under the DoLS, if it did not also allow other parties to appeal against it or act as parties to the case (as s21A does). If guardianship were to replace DoLS, it should be born in mind that P has Article 8 rights in relation to other parties than the Nearest Relative, and they will have Article 8 rights as well.  One example might be certain kinds of non-related paid carers, for example like E's 'foster mother' in G v E (2010).   Better access to legal aid for those parties may also be required, as the Court of Protection has itself indicated in relation to reviews of detention outside the scope of s21A MCA. 

I also wanted to make another point; if the MHLA want to promote guardianship on the basis that it will be cheaper than DoLS, I believe the question of an automatic review mechanism will be their downfall. At present, very, very few cases under the DoLS are appealed; a situation which from the perspective of the Article 5(4) rights of detainees is highly problematic, but from the perspective of the public purse is rather convenient. It was never clear why – bar wishful thinking by accountants perhaps – it was thought that only 2.5% of DoLS authorisations would result in an appeal. It strikes me that as deprivation of liberty is increasingly defined in terms of objections by P, and disputes about alternative residences, we should expect to see the majority of cases ending up in court. 

The destination of appeals 

From the very beginning, one of the biggest debates around the DoLS has been whether the final destination for appeals should be the Court of Protection or a tribunal (like the mental health tribunal). Perhaps one of the reasons the MHLA and others promote guardianship, is because guardianship is appealed in a tribunal setting, not the Court of Protection. Contrasts are generally drawn on the following points: 

• Delays. Whereas an appeal against detention to a tribunal must be heard within six weeks There are no statutory targets for a tribunal hearing, although the Tribunal Service aims to hear 75% of cases within 9 weeks (last year it achieved only 51% within this time limit).  There is no public target for the Court of Protection to hear DoLS cases (although, the Court of Protection do attempt to fast-track DoLS cases). This issue may need looking at, but I am unaware of any public data on delays for DoLS hearings specifically. Solicitors often complain about delays at the Court of Protection, but from a research and policy perspective it’s difficult to see how serious this problem is; it’s one of the many data-holes in our knowledge about the DoLS.
• The Court of Protection is said to be more costly to the public purse than a tribunal. It’s mostly lawyers who say this and I don’t dispute that this is so in their experience, but I would make a few points. Firstly, there is a dearth of good quality overview data to back this up. I’ve written to a few local authorities asking for help drawing together some ‘typical’ costings for DoLS appeals (the typical costs, not including the time of their social care and legal staff, were quoted as being between £4k-£11k per appeal). I also wrote to the Ministry of Justice who essentially seem to be keeping no records whatsoever about how much the DoLS are costing the courts themselves. They did confirm, however, that although the Family Division of the High Court hear most DoLS appeals at present, they don’t seem to have been given any of the cash awarded by the Department of Health for DoLS appeals, so it wouldn’t be surprising if High Court judges were really feeling the strain. DoLS and deprivation of liberty judgments regularly refer to what a burden appeals and reviews are/will put on the Family Division. I’m really concerned that judges may be shaping the meaning of deprivation of liberty (unconsciously or otherwise) in response to concerns about opening the ‘floodgates’ to cases. Yet we have absolutely no idea whether the resource burden really is exceeding the money allocated by the impact assessment. A second point is this: very few appeals under the DoLS get to court, and those that do typically have at their root complex disputes engaging Article 8 as well as Article 5, and very likely a whole bunch of other best interests and community care law issues to boot. This seems, to me, to be an unfair comparison with the issues appealed in a typical tribunal under the MHA. Run of the mill DoLS cases may not (pre-Cheshire at least) involve such disputes, and the majority of appeals could potentially be dealt with quite swiftly even within the Court of Protection. [Edit: 06/01/2012 I'm putting together some costings on DoLS appeals, which I'll post on this blog later this month, and I have to say the costings so far look absolutely horrific... more on this to come].
• The Court of Protection is said to be more costly to litigants than tribunals. This cannot be the case for P and P’s representative if they have brought the appeal, as they will be publicly funded for legal aid and will not have had to pay a fee to the Court of Protection to apply under s21A. It may be true if the case has been referred to the Court of Protection by a public authority, however, as legal aid is not automatically available under s15/s16 MCA (although if it involves Article 5 and possibly even Article 8, it probably should be). For litigants other than P or R, who might mount appeals under s21A MCA, there is no automatic entitlement to legal aid - and my data from the Court of Protection in December 2010 suggests that as many as 8 of the 30 s21A appeals it had received by then were from litigants in person. Other parties than P and P’s representative are not generally represented at tribunals in their own right (although I'm reliably informed that tribunals can appoint anyone as a respondent, but in practice rarely do), so the comparison with their costs is probably a moot point.
• Tribunals are local to P, whereas the Court of Protection (often) sits in London. It is my understanding that the Court of Protection are trying to address this with more regional courts, and I am aware of cases where Court of Protection judges have made site visits to a person’s place of residence to resolve disputes. A tribunal generally sits wherever P is detained to, but this isn’t necessarily the case for community based forms of detention. I'm unsure how often a guardianship tribunal would typically sit in P’s care home, or supported living service? However, it’s probably fair to say that most people live closer to a hospital than a regional court, and so the chances of it being a more convenient location for P and P’s family are probably greater overall with a tribunal than the Court of Protection. 
• P attends a tribunal in person, but typically does not attend Court of Protection hearings. The DoLS and the MHA relate to very different populations, both in terms of capacity (obviously), but perhaps also in terms of physical health needs (the majority of DoLS detainees are people in later life with dementia). I’m unclear whether that population would attend a tribunal in person as frequently as patients detained under the MHA do – perhaps mental health lawyers can comment on this? But attendance in court is a really neglected point, I feel, in discussions around the Court of Protection. In a very few cases mention is made that the judge has either met P (e.g. W v M), or that P wished to attend court (e.g. Re MP– although it’s not actually clear whether he actually did or not!), or that the judge did not meet P but ‘feels like they know them’ on the basis of what others say about them (e.g. MIG and MEG). In fact, I’m sometimes troubled when reading Court of Protection case law how often it is not clear what P themselves wants, whether P is aware of the proceedings, whether the judge has even met P. I recently asked Judge Lush whether P typically attended Court of Protection hearings; Judge Lush said that it did sometimes happen, but was not typical. I asked if judges often made efforts to meet P; Judge Lush’s response to this was fascinating. Apparently when the new Court of Protection rules were being drafted the judges of the old Court of Protection had asked that their powers to visit P were replicated in the new court, but this request was rejected by the rules group as there were misgivings about judges meeting directly with litigants in the absence of counsel for other parties (Judge Lush points out, though, that many parties in the Court of Protection are litigants in person and have no counsel). Neither do the rules prohibit it though, and it is my understanding that many judges still make efforts to visit P.  I do find it odd to think about justice being done without the litigants ever meeting the judge.  (As a personal aside, I was involved in family court proceedings as a child, and was furious that a judge made decisions about contact with a parent without ever meeting me.  I still felt sidelined and powerless in the process.  Not all will be bothered by this, I grant you, but it's a point I think needs consideration.)  I also wonder whether there mayn’t be Article 6 implications if it is practical obstacles – like distance – that prevent P from attending court hearings that will have such a profound impact upon his life. I wonder what it is like for judges themselves, to be make such life changing decisions about persons they have never met - no wonder Baker J wanted to meet 'M' in a matter of life and death. However, with the growing workload of the Court of Protection this may become increasingly difficult in terms of judicial time and resources. 
• The Court of Protection is said to delve too deeply into case management. I’ve heard this view expressed by lawyers and some academics, and not having studied this point in detail I don’t really feel in a position to appraise what they mean by this.  I think a comparative study of DoLS appeals and mental health tribunals could be very fruitful and interesting.  However, for reasons I’ll come onto when I discuss the powers of tribunals and the Court of Protection, I do wonder if disputes around deprivation of liberty in the community do tend to raise more complex issues around care planning, which necessitates a greater degree of case management in disputes. 

The powers of tribunals and the Court of Protection 

In respect of Guardianship, the Tribunal has only these powers: 

Where application is made to the appropriate tribunal by or in respect of a patient who is subject to guardianship under this Act, the tribunal may in any case direct that the patient be discharged, and shall so direct if it is satisfied—
(a) that he is not then suffering from mental disorder ; or
(b) that it is not necessary in the interests of the welfare of the patient, or for the protection of other persons, that the patient should remain under such guardianship. (s72(4) MHA) 

In respect of DoLS, the Court of Protection has the following powers under s21A MCA: 

(2) Where a standard authorisation has been given, the court may determine any question relating to any of the following matters—
(a) whether the relevant person meets one or more of the qualifying requirements;
(b) the period during which the standard authorisation is to be in force;
(c) the purpose for which the standard authorisation is given;
(d) the conditions subject to which the standard authorisation is given.
(3) If the court determines any question under subsection (2), the court may make an order—
(a) varying or terminating the standard authorisation, or
(b) directing the supervisory body to vary or terminate the standard authorisation.
(6)Where the court makes an order under subsection (3) or (5), the court may make an order about a person's liability for any act done in connection with the standard or urgent authorisation before its variation or termination. 

Similar powers pertain for urgent authorisations. I have already discussed the issues around what criteria must be satisfied in Part 1, but I will reiterate that it strikes me that the court must satisfy itself of much more stringent criteria under s21A MCA than under s72(4) MHA. And that furthermore, it strikes me they are likely to consult a wider range of views, and the evidence and parties to the case are likely to be less medically dominated under the MCA than the MHA. 

S21A MCA seems to me to be a much, much more flexible legal device than s72(4). For a start – unlike the tribunal – the Court of Protection can make declarations as to whether a person has been unlawfully detained; a separate application would be made for a person unlawfully detained under an MHA regime. The ability to vary the standard authorisation is very significant; the court can direct the conditions under which a person is detained, which offers them much greater power over details of care and treatment than a tribunal has. For some, this may be a bad thing and risk the court straying too close to ‘case management’, but I have heard tribunal judges bemoan their lack of comparable powers to do anything but recommend a particular course of treatment. If a person is detained to hospital under the MHA, the tribunal can make recommendations (non-binding) about his treatment if they do not discharge him (s72(3A)), but even this power to recommend doesn’t seem to apply in the case of guardianship. John Horne (himself a tribunal judge, as well as solicitor, social worker and academic) has complained that ‘...the twin straitjackets of easy-to-satisfy statutory criteria and limited powers enable the Tribunal to readily adopt the role of a toothless tiger’ (that quote is from his talk at the SLSA 2011, but you can watch another version of this talk, given in Manchester 2010, here).

In the context of community based forms of detention, a simple power to discharge may become problematic. Unlike community care, a person is not detained to hospital for the purposes of giving them a long-term home (which is not to say that people – especially those with learning disabilities – do not languish in hospitals for far longer than anyone considers desirable). If detention is taken to mean the extreme end of the spectrum of restrictions on liberty, it becomes tricky to understand what discharge means if a person is likely to always be subject to significant restrictions. In this sense, despite my criticisms of the Cheshire ruling for leaving people subject to significant day to day restrictions with very few safeguards, it is actually quite helpful. If ‘detention’ means detained to a particular setting when another is available, and preferred, then it’s pretty clear what ‘discharge’ means: it means to permit a person to live in the preferred place. ‘Discharge’ from detention could also be meaningfully applied in a context that eludes the Cheshire ruling, and that is cases like that of ‘Alan’ in D Borough Council v AB [2011], where a person can – demonstrably – live with fewer restrictions, but they are imposed to achieve a particular end (in this case, to prevent Alan from having sex; but one can also imagine similar issues for preventing contact with particular persons, or perhaps to prevent a particular behaviour, like stealing or drinking, or perhaps because there are risks specific living in a particular community). 

But for very many cases – like that of ‘P’ in Cheshire, like MIG and MEG – it’s hard to make sense of what ‘discharge’ could realistically mean.  However, one could make sense of varying the conditions of detention. For example, by requiring that a particular treatment or form of support be made available; by requiring that a person be detained to a different setting; by requiring that they be given contact with a particular person who is currently prohibited. This, clearly, strays into the territory of general best interests, but it is attached to issues of detention under the DoLS if the current form of detention is not the ‘least restrictive option’ or in a person’s best interests. Linked to a s21A appeal, of course, the Court of Protection may also be called upon to use its powers under s15 or s16 to make declarations or orders relating to P’s capacity and best interests. It is my understanding, talking to staff at the Court of Protection, that very often DoLS appeals brought under s21A are often entangled with ‘pure’ best interests, and it may be that where these issues need resolving as well it is actually more efficient to address then in the Court of Protection than in a separate venue like a tribunal.

The risk with the broader powers under the MCA and DoLS is of cases becoming lengthy and costly; I once heard Richard Jones describe DoLS appeals as a ‘Rolls Royce service for the few’ at a conference. A wider range of experts and witnesses may need to be consulted, a wider range of issues considered, there may be more parties to a case, and all of this adds to delays for court users, a strain on the courts, on the Official Solicitor, and obviously a strain on the public purse. My concern, however, is that a more reductive approach will miss out important Article 8 issues that are generally attached to Article 5. Furthermore it may result in people being inappropriately detained or inappropriately discharged, because no variation which might improve the conditions of a necessary detention can be directed by the court. I think at present there is too little solid information in the public domain about the costs of the DoLS appeal process, delays, duration, and how the issues around best interests and Article 8 are managed to take an informed view on whether we could replace them with a simpler ‘welfare’ and ‘discharge’ model. Solicitors with experience of both may feel better able to take a better informed view on this, and I would welcome their thoughts (always space for a guest post...).

Summary

So, rather unhelpfully, I leave the question as to which appeal mechanism is better with the view that both DoLS and guardianship, as detaining frameworks in their current forms, are both very weak in relation to enabling people to access their Article 5(4) rights. In fact, so weak that they may well engage Article 14 ECHR, in being discriminatory in comparison with the relatively strong appeal rights of people detained under the MHA. However, in my view the criteria and powers of tribunals under guardianship are not as strong as the Court of Protection’s are for DoLS, because they do not have the flexibility to address the range of care planning issues that are attendant on long-term (or permanent) community detention, or the Article 8 issues around contact or disputes with family members who are not the nearest relative. However, this broader scope of the Court of Protection’s powers under the DoLS may very well be its undoing, inasmuch as it requires consideration of a broader range of issues, which is inevitably more costly and time consuming. 

I now want to move onto a general discussion of DoLS v Guardianship, where I will consider some general issues that have been raised around terminology and stigma under the MHA, and the monitoring and enforcement of both regimes.