Guest post: We are what's missing from DoLS

Another great guest post from the front line. This one is from Martin Harper, a social worker in South Wales who works on an MCA/DoLS team.  This piece reflects on the wider cultural changes that haven't happened, but which are needed to underpin the more progressive elements of the MCA and the DoLS themselves.  This piece is great reading for MCA/DoLS-watchers, but it's also really interesting from a law and society perspective, in a nutshell, the author argues 'My fear is that the European Court of Human Rights has taken us to the end point of DoLS without us having made the journey.'

There is a great deal of discussion about the Deprivation of Liberty Safeguards introduced into the Mental Capacity Act 2005 (MCA) by an amendment brought forward by the amendments to the Mental Health Act 1983. The Courts of Protection (itself brought into being by the MCA) and Appeal are busy giving further scope for discussion and disaffection on an almost daily basis as case law develops and the concept of what constitutes a deprivation of liberty (DoL) is examined and re-examined. 

The reflections that follow are those of a practitioner working in the MCA/DoLS field; this will not be an academic or legal review although I will try to frame my thoughts within the legal context. My intention is to discuss the socio-political and cultural issues that do not feature so strongly in the discussion about DoLS. It is my contention that this absence of cultural/ professional reflection is the crucial (but fixable) flaw in the Deprivation of Liberty Safeguards, and that the shifting sands of the Court’s constant redefinition rather than refinement is concealing and perhaps is even a partial cause of this fundamental flaw. 

The MCA is, to my mind, a beautiful piece of Law, as it collects and clarifies so many pre-existing authorities to act on another person’s behalf, or make decisions for them at times when they are not able, but most of all it establishes the 5 core principles. 

1. A person must be assumed to have capacity unless it is established that he lacks capacity 
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success 
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision 
4. An act done, or a decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests 
5. Before the act is done, or the decision made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. 

These seem fairly straightforward in terms of the language, but as you attempt to work through the real life implications of these as they actually apply in a clinical or social care their complexity is revealed. At this point you either begin to experience the cultural shift necessary in Health and Social Care provision, or translate your existing context into the new language of the MCA. In my view the former option is where the beauty of this legislation lies, and the latter is what I see continuing day by day in my professional contacts. So, we will call a professional’s meeting and rename it a best interests meeting, what’s in a name? Can’t bear to think of this vulnerable person living where they live, and how they live? They’re refusing our help so do a capacity test that results in us managing the risk for them which often means an unwilling reception into care and months waiting in hospital for a placement whilst despair and disorientation conspire to confirm and justify the prophesy of our constructed well intended assessment. 

How can this be? The law is clear, or at least the language is, but the legal meaning of the key words and concepts is not in fact very clear at all, and it is constantly evolving. “Established”, “Capacity”, “Best Interests”, “less restrictive”, and of course the constant examination of a “deprivation of liberty” or the concept of proportionality all constructs that obstruct clarity at the bedside or the care home. Lets add into the mix a discussion on selecting a new and more logical (?) “comparator” when considering what might be an inevitable course of action in a set of circumstances defined by the core needs of the individual rather than the choices or intentions of the care provider ( see Cheshire West and Chester Council v P (2011) EWCA Civ 1257) and even the most receptive and enthusiastic professional will start to look for the safety of the status quo. 

I am a Social Worker, a Statutory Being, I ask “what is my power to act”, and I enact that power according to duty or policy in ways that comply with the ethics and standards of my profession. There are lots of situations that I encounter where I wish I had a power to rescue, and I have plenty of personal opinions that would otherwise direct my attention in one way or another, but I am paid, and relied upon by the public through the State to direct my efforts along power lines. In my 27 years of experience, the best practice and the best practitioners have learnt to stay there. I am familiar with using the Law, acquainting myself with its powers duties and provisions, and accepting the policy and guidance that it spawns as micro expressions of what is ultimately (in theory at least) the people’s will on how, or whether, I should act. 

I am not “called” to alleviate suffering. I don’t answer to a higher unearthly authority. I don’t heal the sick, and I don’t just want to help. I manage society’s own definition of those who have or are socially different in circumstances where the community’s tolerance to that difference is defined by policy and statute. I accept that this is a contentious definition of Social Work which would be debated within my own profession, but I believe that beyond the semantics of my choice of phrase there would be some consensus, at least in contrast to the clergy, nurses, doctors, care home staff or teachers. 

Perhaps the Core Principles translate well into my perspective. 

• Each person I encounter starts with a full range of options….. 
• ensure that every effort has been made to rule out another more empowering way for the person to assert it for themselves before you go making decisions for someone. 
• you cant use a judgement about the quality of someone’s decision to legitimise taking away their autonomy, judgement by rule of law, not personal or professional opinion 
• be sure that it is for the client, and not for the service that you act and.. 
• act in a way that affords them the optimum autonomy or liberty. 

I was raised however, to believe that Doctor knows best; that Nurses are caring, that older people are nice and that a sign of a decent society is one that looks after the less fortunate and protects the vulnerable (whether they want it, or not). It’s my culture. Those of us, who didn’t have to rely upon it, saw and sincerely believed that the Welfare State was entitled to the position of benevolent patronage over the needy.  

Seeing that in black and white is a challenge. Before I join forces with any of the other potential readers to condemn the shallowness of the author I will pause and think again about how truly extraordinary the efforts of Mr and Mrs E were in revealing this collective delusion to us all in the Bournewood case (see HL v UK 45508/99 (2004) ECHR 471). Before we celebrate our integrity as a Nation or as Professionals too much let’s consider our willing collusion for generations with the denial of a Universal Human Right to Liberty from the most vulnerable people in our society as a routine, ordinary and as best practice. 

The account below is taken from the affidavit to the House of Lords from the senior Doctor who managed the care of HL when the highest court in our land concluded that there was nothing untoward in the management of HL. 

“At 11 o’clock on 22 July 1977, I was contacted by [ ], social worker and Mr L’s case manager. She advised me that there had been an incident at Cranstock Day Centre, where Mr L had been attending since 1995, when Mr. L had seriously self-harmed and was extremely disturbed. She said that he had to be sent to the Accident & Emergency Department and she requested assistance from the psychiatric services to assess Mr. L with a view to admitting him if necessary. One of my team members, Dr [ ], staff grade psychiatrist, attended the Accident & Emergency Department as requested. His notes state that he took a history from [ ] who was the team manager at Cranstock Day Centre who reported that since March 1997, Mr L’s episodes of self-injurious behaviour had increased in severity. On 22 July 1997, whilst he was at Cranstock, he had been agitated, hyperventilating, pacing up and down and hitting himself on the head with his fists. He was also banging his head on the wall. The whole area had to be evacuated to avoid disturbance and assure the safety of others. He was given 4 mgs of Diazepam to try to calm him down at the time but this had no effect. The GP was therefore called who administered 5 mgs of Zimovane. However he still remained agitated in the Accident & Emergency Department. He was assessed and treated at A & E. Dr [ ] later assessed Mr L as being agitated and very anxious. He noted redness of both his temples, that he was punching his head with both his fists at times and hyperventilating. Dr [ ] assessed that Mr L required in-patient treatment and transferred Mr L to the Behavioural Unit. Dr [ ]noted that Mr L ‘makes no attempt to leave’. I recorded that we considered whether it was necessary to detain Mr L under the Mental Health Act 1983 (‘the Act’) but it was decided that this was not necessary as he was, as I noted at the time, ‘quite complaint’ and had ‘not attempted to run away.’ He was therefore admitted as an informal patient. If Mr L had resisted admission, I would certainly have detained him under the Act as I was firmly of the view that he required in-patient treatment. This was clearly thought through and supported following discussion with Dr[ ], Ward Staff, other professionals and Care Services Manager. An appropriate framework of care and treatment implemented”.

(Judgments in Re L (by his next friend GE) House of Lords 25th June 1998)

What else would the bus driver or the day centre do? 

What else would A&E do? 

Didn’t the specialist directorate respond in a timely multi-disciplinary fashion? 

It was the ordinary practice of the unit to let people settle in for a few days before allowing them contact with their closest relationships. 

What else would any of us have done in those circumstances? These were Circumstances that were investigated examined and re-examined by all of the review mechanisms and all of the courts in our land. 

We were all found to be at fault. Patient HL found a remedy (eventually) in Law, but not within our boundaries as a sovereign nation. Our Law, our processes, our professionals and I would say, our culture was shown, by the efforts and tenacity of two of our citizens to be at fault. 

In our defence our Government submitted that imminent deployment of the Mental Capacity Act as a remedy but despite the grand implications of the core principles this was still found lacking because we, as a nation still did not get the point. YOU CANT TAKE PEOPLE’S LIBERTY AWAY UNLESS THERE IS A PROCESS OF LAW THAT GIVES THEM INDEPENDENT RIGHT OF APPEAL. 

In my view this is the root cause of the problem with DoLS. DoLS did not evolve through a practice or culturally led revolution or realisation about the rights and needs of our most vulnerable neighbours, friends or family members, it was constructed by lawyers as an effective (in theory) answer to the human rights oversight disclosed by the position of patient HL and commissioned effectively in Strasburg. 

We, the people, the professionals the family, the man on the Clapham omnibus still don’t get it. We have been given a process, a set of procedures and a new route to a new Court. Remember that our Government, all of our Courts, our professions and for generations all of us as citizens did not see a problem (or did not act in the way in which Mr and Mrs E did), and now what we see is a process, and of course problems with the process. 

The debate is being held at the level of the process, before we the people have accepted or assimilated the meaning behind the process. The tail of Law is wagging the British Bulldog, and if we are not more careful to understand and accept the relevance of Safeguarding these most vulnerable of our citizens the process that never accepted the need for a safeguard until it was forced to, will argue itself into complete stagnation or irrelevance. 

There are many opportunities to engage the public in this debate, but the key agents are so disengaged from the potential of the core principles of the MCA that these opportunities are being missed. For example, not once is the MCA mentioned in the “Dignified Care” report of the Older Person’s commissioner for Wales. Rarely, if ever has the Ombudsman cited the core principles in any of their adjudications. Age concern and other powerful lobbyists are not using the MCA to make their points about dignity, nor are the various advocates that have a right to have contact with our most vulnerable incapacitated adults making many, if any third party referrals to DoLS. Why set up a working party to invent a policy on dignity when there is primary law that is being ignored (in terms of meaning) that could improve the circumstances of so many of the target groups? The convictions of the abusers at Winterbourne Lodge or the more recent Panorama exposure following secret filming in a care home were not pursued under the MCA despite apparently clear film evidence to support a conviction under S44 MCA. (charges under S44 of the MCA were left to lay on file in the Winterbourne trial). 

The circumstances of Maria Colwell, or Peter Connelly of Jonathan Zito even the Birmingham 6 are often quoted as the stimuli for changes in legislation or policy, and rightly so, but they changed much more than that, they affected our consciousness, our culture. The revelations to the ordinary members of the public that came through Public Inquiry into the background and circumstances that made these private citizens a public concern drove forward a change in law or a revolution in practice, by force of public opinion. That is the way it works most effectively in my opinion. 

Why can’t we legislate for cultural change? 

Government often sees a problem and tries to drag the professions into line through legislative change, but this rarely has the same effect. Consider the actual impact of the Criminal Justice Acts from 1991 onwards. We can plot Parliament’s attempts to dictate to Judges how they should sentence, three strikes and you get a mandatory sentence for example and how in effect the Judges have basically ignored Parliament’s clear wish. Consider the years of debate and the various legislative attempts to get Psychiatrists to take on responsibility for dangerous Personality Disordered people (they are not so shy with some personality disorders). Remember the DSPD projects, the attempts at combination sentencing, and all of the debates around the “New” Mental Health Act which in fact resonate in this respect with the parliamentary debates that proceeded the 1983 act as well. Ultimately Parliament settled for the Responsible Clinician role in the hope, I suspect, that Psychology would step up to the PD mark – and we are still waiting. Remember Paul Boateng telling the meeting of the Royal College of Psychiatrists that if they didn’t think that they had a duty to protect the public they should find another job, shortly before he found another job? 

Law is not really administered by lawyers, courts or even parliament; they plead and adjudicate remedies that are disclosed through fault. There are of course times when they assess that the fault is with one party or another, and there are others where the investigation of the fault leads to a realisation that the system has changed and that therefore the law that governs it must too. 

In Bournewood Britain saw no fault. 

They, the lawyers in court, in campaign and in Parliament do this on behalf of the people - that's democracy. Our history sparkles with examples of revolt where the State has become too comfortable with the delusion of power and had to be reminded of this. Perhaps we will see more contemporary examples of this in Europe in the coming months. 

Evidence of the longevity of these relationships between the State and its people can be found in a long history of philosophical or socio/political writings. A book that made a great impression on me as an under graduate by Paolo Freire called "the Pedagogy of the Oppressed" puts this across extremely well through the illustration of education out of poverty. At the risk of misquoting the concept that has stayed with me was:- 

“How can the oppressed, participate in developing the pedagogy of their liberation? Only as they discover themselves to be "hosts" of the oppressor can they contribute to the midwifery of their liberating pedagogy.” (p.48?)

Mr Freire also informed my understanding of praxis (learning through action), which finally helped me to understand the campaigner’s phrase “to know and not to act, is not to know at all”. 

Before we celebrate our personal or professional integrity too loudly we should remember that we effectively either didn’t know, or didn’t act (which amount to the same thing) about the lack of universal rights extended to those who could not consent to the restrictive care that they were required to receive by virtue of their vulnerability and our best intentions. I didn’t know, I didn’t think. Now Mr and Mrs E have brought it to our attention, so do we know now, or don’t we? 

The question is how to safeguard an oppressed who may never perceive that they are the host of the oppressor ? 

There is a need to safeguard people who can not consent to their care plans. Most clearly we need to safeguard the human rights of our kinsfolk whose care plans include significant levels of restriction to the point of depriving them of their liberty. Not simply because of Article 5, but because of the huge power imbalance in our relationship with persons under our control who lack the capacity to assert their own best interests. 

There is a risk that the lethargy of the public, the excited arrogance of the academics or the agenda of the politician conceals this underlying truth. I fear that before this is truly assimilated into the public consciousness the lawyers will have focussed so logically on the definitions of a DoL that the spirit and true meaning of the safeguarding point will be completely lost. Perhaps this is why legislation that follows cultural changes in our awareness is more transformational and sustainable than diktat. 

It is therefore the people, by consent, that administer the law. The law works because people operate it, not because lawyers write papers, or submit arguments about it. The teacher, social worker, school crossing patrol, night carer, nurse, unemployment claimant, even the thief administer the law in millions of consenting relationships each minute of each day. They use the law, and if it appears at fault they seek a remedy. 

The Deprivation of Liberty Safeguards are the logical outcome of an appeal to Universal Law constructed by lawyers. The DoLS are necessary, but they are not imbedded into the collective conscience of our nation in the same way that child protection, community care and treatment of mentally disordered people, or the detention and interrogation of those suspected of committing crime are. 

What’s to be done? 

I respectfully suggest that before we let Judges in the Appeal Court remove any more citizens from the Clapham Omnibus and put them back on the Sunshine Coach then claim that there is nothing amiss there are some fundamental points for the public to assimilate into their understanding. 

• Next of Kin can not make decisions on your behalf. 
• When a learning disabled child achieves 18 they are adult. 
• Marriage does not automatically include a lasting power of attorney 
• Doctor doesn’t always know best. 
• I am the only expert in being me 
• Living in safe misery can be as risky to longevity as falling 
• Death is sometimes a natural and desirable outcome 
• Hobson’s choice is no choice; you are required to develop others for me if you want to use the language of choice. 
• Medical evidence is not the only evidence of how I feel. 
• Abusing an older person in a domestic setting is still domestic violence 
• You can not consider my best interests without me 

The list is potentially much longer, and should of course include the 5 Core Principles of the MCA. In short, we need a National debate, public inquiry or Royal Commission perhaps, or maybe simply making the MCA Core Principles points as the means for discussing dementia care, or the treatment and context of learning disabilities in the community. CQC, HIW, CSSIW, and all of the other regulatory and adjunction bodies such as the Ombudsman and the various Commissioners and champions need to argue their points in terms of the MCA. Where is the News of the World when we need it! 

My fear is that the European Court of Human Rights has taken us to the end point of DoLS without us having made the journey. 

The position of patient HL is of course a natural starting point, but the Bournewood case itself has fast tracked the legal mechanisms resulting in a skewed obsession with the process and definition without there being the required depth of understanding and public inclusion about the nature of the issues. 

In my practice I am aware that there are a number (perhaps a significant number) of assessments and authorisations, conditions and inquiries that have been made that might not strictly meet the ever shifting definition of a DoL. However these inquiries have been made independently of family, the Managing Authority or the care team and have been universally accepted as being helpful and beneficial to the interests of a vulnerable person. Such safeguarding efforts usually result in the proper installation of the MCA Core Principles and a greater respect for that person’s rights. I am also aware that the independent scrutiny that these assessments bring to the experience of the Managing Authority is taken very seriously by the operators of hospitals and Care Homes driving up practice with a wider sphere of influence than just the circumstances of the relevant person. 

In this light, does it matter so much if a Judge might rule through the DoL leaving only the S? 

To my mind, not one bit.