3. DoLS v Guardianship - Summary and discussion

Update (December 2012): These posts are fairly out of date and contain some inaccuracies.  I've given them an overhaul, and you can read and download and updated and corrected version at DoLS v Guardianship - Redux.

Several knowledgeable bodies and individuals have suggested that guardianship under the Mental Health Act 1983 (MHA) might be a preferable framework for community based detention than the deprivation of liberty safeguards (DoLS). I have compared the two frameworks on a range of issues in two previous posts (Part 1, and Part 2).  For those of you who prefer a printer-friendly word document, and would rather read this in one piece, here's a pdf version of all three documents that I've prepared (very kindly hosted by Celtic Knot Solicitors, so you don't have to create a Google Acount to read it).  And, two days after writing this post here's a brand new DoLS and guardianship case, with a very interesting comment from Jackson J:

It is a truly unhappy state of affairs that the law governing the fundamental rights and welfare of incapacitated people should be so complex. As this case shows, its intricacies challenge the understanding of professionals working in the field and are completely inaccessible to those for whose benefit the legislation has been devised, including those with a relatively high level of understanding, such as Mr C. This judgment, while keeping citation from statute, regulation, codes of practice and reported cases to the necessary minimum, still remains more focused on technical issues than I would like

If you’ve skipped to the end of these three posts, here’s what you’ve missed in a nutshell: 

I’ve argued that the criteria for detention under the DoLS may be preferable to those for guardianship as a) guardianship uses an outmoded ‘status’ approach, whereas the MCA takes a ‘functional’ approach to a person’s capacity to make decisions about care and treatment; b) the DoLS ‘best interests’ criteria are better defined than guardianship’s ‘welfare’ requirement, they make explicit requirements for proportionality, and they require consultation with a wider range of parties. Furthermore, guardianship cannot as yet be applied to people with learning disabilities who are not abnormally aggressive or seriously irresponsible, which is a significant shortcoming in comparison to DoLS. However, guardianship is much more flexible than DoLS with respect to the location of the detention (DoLS being restricted only to hospitals and care homes). Furthermore, guardianship creates no authority to consent to medical treatment, or to address any other financial, care or welfare issues not contained within powers to require a person to live at a particular place, to attend medical appointments or training/educational activities, or to allow access to them by health and social care professionals. However, the MCA could be used to ‘top up’ these limited powers, and guardianship powers – as a MHA regime - would ‘trump’ any decisions made under the DoLS or by deputies. [Edit 15/01/12: The ruling in C v Blackburn with Darwen confirmed this.  S2-3 Schedule 1A MCA says that if P is subject to a MHA regime and 'That includes any requirement as to where P is, or is not, to reside', then P is ineligible to be detained under the DoLS if 'the authorised course of action is not in accordance with a requirement which the relevant regime imposes'.  The DoLS cannot authorise detention in conflict with a decision by a guardian.  However, the point being raised by the OS wasn't about guardianship and DoLS per se, the concern was that the decisions of a guardian were not subject to any kind of judicial oversight from the Court of Protection to determine whether they were in a person's best interests.  Given the tribunal for guardianship examines the general issue of reception into guardianship rather than the specific decisions of the guardian, and there is no clear statutory framework for the decisions of guardians, it is hard to know how individual decisions by guardians could be challenged - or upon what grounds. Edit: 20/01/2011 The fact the specific decisions of guardians are not subject to any obvious review framework may be problematic in the light of the recent ruling in Stanev v Bulgaria.]

Guardianship offers families much greater power than the DoLS. Because the appointment of the nearest relative under the MHA is ‘automatic’ and not on the basis of selection, there is less scope for avoiding appointing relatives who object to the detention – which is a risk under the DoLS.  Under the DoLS, concern has been expressed that supervisory bodies may avoid appointing family representatives who oppose the detention; there are weak safeguards against this. Furthermore, the detention can be authorised against opposition from the family representative, who must apply to court under the appeal mechanism.  There are many reasons to believe this may be difficult for some representatives. Under guardianship, the nearest relative can successfully oppose an application for reception into guardianship, or request a discharge.  If the local authority wish to displace the nearest relative, they must apply to court to do so: disputes in cases like Neary v Hillingdon would be likely to come to judicial attention far earlier under this regime. 

Guardianship has a much stronger framework for review and ongoing monitoring of the conditions of detention by the local authority than the DoLS do; this is a significant advantage. As things stand, both frameworks are very weak for ensuring detainees’ Article 5(4) rights to appeal are upheld. This is because unlike for detention under the MHA, there is no automatic referral of the detention to either a court or tribunal. Because people who are likely to be subject to either regime are likely to require help (sometimes considerable) accessing their right of appeal, both regimes rely upon other parties helping them to appeal. In both cases, the parties who could assist them in this may have conflicts of interest in doing so where they support the detention but the detainee objects. Independent advocacy could remedy this, but the duty to refer is weakly enforced for the DoLS, and there is a much weaker obligation to appoint an independent advocate under the guardianship regime. An automatic referral to a court or tribunal has been recommended by many, and whilst I support this recommendation it would undoubtedly increase the costs associated with community based detention.  This would undermine the case that an amended guardianship regime would be cheaper than DoLS. I have also explored the differences in the powers of tribunals and the Court of Protection in determining appeals, and have argued that the broader powers of the Court of Protection may be desirable in certain community based contexts. I have also argued that there is inadequate information in the public domain about the costs of DoLS to argue that appeals to the Court of Protection are are intrinsically more expensive than tribunals. [Edit 15/01/12: From my tentative costings, the legal costs attaching to DoLS appeals in the Court of Protection are extraordinarily high, and serious consideration of a tribunal process seems sensible.]

Terminology and stigma 

I just want to say a few words about terminology and stigma, as they are often cited as factors against a MHA regime. In the first place, guardianship is obviously a very different regime from detention under the MHA; and I am unclear whether any studies or research has been done to suggest it carries the same stigma (certainly I can’t find any). And indeed, for some people working in community care, I think guardianship may be more acceptable than ‘deprivation of liberty safeguards’ as a title for frameworks for detention. Initially the DoLS were to be called ‘protective care’, and in all but one of the Bournewood Consultation responses I have read respondents were pretty keen on this; I’m not clear why it was changed. The Mental Health Alliance have expressed a preference for this term, as it is less likely to be offputting to care managers, social care professionals, and perhaps – I can imagine – to family members who support the detention. I can definitely see the logic of this approach; care homes are far more likely to agree that a person needs ‘protecting’ than ‘depriving of their liberty’, and perhaps would be more likely to make use of a regime bearing that name. I also wonder sometimes whether the courts would be more willing to agree that a person needed ‘protective care’ than that they were deprived of their liberty; they seem (in my view) to be excessively taken by factors like whether a person’s bedroom is ‘personalised’ or ‘homely’ and not enough to the degree of control exercised over them. 

However, I think we need to be cautious about the language of guardianship. I fully acknowledge that ‘guardianship’ under the MHA means a very different thing to guardianship in most international jurisdictions, but in debates in the international disability rights community it carries a very heavy negative valence. Like ‘protection’ it is regarded as a paternalistic and disempowering term. I do wonder if the label ‘deprivation of liberty safeguards’ at least keeps people’s minds attuned to the issues of liberty that are at stake here. I don’t want to single anybody out, but reading through the Bournewood Consultation responses, and looking at the massive mess that is the DoLS and the DoLS case law, I do get the feeling that many actors take issues of liberty in the community far less seriously than in a hospital setting. There is nothing in Article 5 to support that view. I’m sure if you asked Mr DE (JE v DE), or Steven Neary and his family, they would not support that view. I’m sure if you asked the near-hundred people abused in supported living services in Cornwall, who were said at the time to be deprived of their liberty, they would not support that view. In any case, it’s not often suggested that the language of guardianship and protection carries a stigma all of its own; but I think for many people it just might, and there may be advantages to retaining a focus on liberty. 

Monitoring and enforcement 

The current monitoring arrangements for both the DoLS and guardianship under the MHA can be summed up a single word: crap. I’ve written previously about the problems for CQC in monitoring DoLS, and a lot of the problem – it has to be said – is attributable to two factors. The first, that monitoring is left to the ordinary compliance inspectors instead of a specialist body like the MHA commissioners. The second, that the Department of Health in their wisdom have blocked CQC’s only avenue to monitor the activities of the supervisory body by cancelling the annual performance assessment. Guardianship is technically monitored by the CQC in their MHA monitoring context, but there’s no real discussion of it in either of their last two reports on the MHA. This is fair enough in some ways, it’s a much smaller population, but I think it’s something that would need to be addressed if we do go back to the drawing board with DoLS. It’s also worth considering how – if people are potentially subject to detention under guardianship in settings that don’t have site inspections by the CQC – we will ensure compliance with OPCAT through regular visitation to places of detention. 

Aside from all the things that can go wrong with the review and appeal processes, one of the fundamental problems with the DoLS is underuse. Simply put, care homes and hospitals are not seeking authorisation to detain when they should be. This is for a whole range of reasons: 

• There is such poor agreement over the meaning of deprivation of liberty that even professionals can’t agree (some might say that even the judges can’t agree...), so it’s unsurprising that care home managers and ordinary doctors, who have plenty more on their plate than keeping on top of Court of Protection jurisprudence, don’t really understand what’s expected of them.  I recognise the dangers of a statutory definition, but note that it would reduce the degree of confusion overall and could always be 'topped up' by regulations if the ground shifts again in Article 5 case law.  The Joint Committee on Human Rights' [89] statutory definition is a good start (in fact, it basically encapsulates Cheshire), but some cases would still be eluded by it and it requires more work.  For penalties to apply for non-compliance, however, clarity is a must.
• Care providers are said to be put off by the phrase ‘deprivation of liberty’, and don’t want to acknowledge that they are restricting people’s liberty because they see themselves as helping and protecting people. Ben Troke has written that Cheshire in fact supports this view. 
• The DoLS involve a lot of work for both care providers or hospital staff, and the supervisory body, which is a disincentive. I often hear people complain about the forms in particular, although some have responded that the forms are designed to meet a legal need and can’t be altered (although apparently the boxes to fill in are too small and inflexible, which is clearly not a legal requirement; and I would think that in this day and age of technological whizzery somebody could set up the forms so that you don't need to re-enter the same 'cover sheet' details on each one?). 
• The DoLS invite scrutiny into care planning and care delivery which may very well be unwelcome. They also offer a means for any awkward or objecting family members to litigate the very bodies that are supposed to be applying the safeguards, which is potentially a serious disincentive. 
• The prospect of a care home, or even a hospital, being litigated for unlawful detention by a person who lacks capacity and subject to their ‘complete and effective control’ is very unlikely indeed. Given the likely vast scale of unlawful detention (based on the low numbers of DoLS authorisations in contrast with projections, and also regular anecdotal reports, and also comments of the CQC in their reports on DoLS), the number of cases of unlawful detention hitting the courts are minimal. A person is unlikely to get to court without the assistance of a framework like the DoLS. 

Given that there are so many disincentives to apply a legal framework for community based detention, and  so little risk of adverse litigation if they don’t (indeed, I’ve argued that for privately funded care home placements, and for supported living services, there is no clear risk at all), what pressure is there for care providers – or even hospitals - to comply with either a DoLS or a guardianship regime? Guardianship under the MHA is not a panacea that will solve this, the most significant, of all the ills under the DoLS regime. In fact, given that guardianship relies upon an application by the local authority, and there is no obligation upon the care provider, it’s unclear how detentions within privately arranged care would ever come to the attention of the supervisory body. 

Guardianship may address some of the problems in the DoLS regime around conflicts of interest and the rights of families.  If an automatic referral to the court or a tribunal were introduced it may offer a more adequate Article 5(4) mechanism. The guardianship criteria could be amended to reflect modern approaches to mental capacity, and a best interests checklist approach. However, what guardianship will not do is ensure compliance with the regime on the ground; it will not ensure it is applied where it should be. I have thought, and thought, and thought about this problem. I think the DoLS regime, like the rest of the MCA, paradoxically tries to promote autonomy whilst already assuming that a disabled person - whose liberty is restricted by others - is in a position to challenge human rights violations through formal legal channels. This is clearly a highly problematic assumption. There must be some other mechanism to pick up on unlawful detention, and ensure they are subject to some kind of external monitoring framework. I think there should be automatic penalties for providers and public authorities who do not apply legal frameworks for detention when they should, to increase pressure to comply.  I can think of only one body potentially in a position to do this: the CQC. And, as I have written many times previously on this blog, currently I can't see how they are up to this job.