No longer early days

It is now four years since the deprivation of liberty safeguards came into force in England and Wales. The DoLS are complex, cumbersome, badly drafted, poorly understood, but they are no longer new. In those four years, some areas have really taken up the challenge of the DoLS with gusto, developing expertise and applying them with a real passion for human rights and a solid understanding that the very point of DoLS is to create a space where their own decisions can be scrutinised, questioned and held to account. It is not a comfortable space to work in, to be sure, but there are practitioners out there who do it extremely well. But as the CQC’s most recent monitoring report on the DoLS, published last week, showed – this is still not the picture across the country, far from it. And after four years, I do not think we can pin these problems on 'teething troubles' any longer, and hope they will just sort themselves out.

What did CQC’s latest report say? Oh... same old, same old, really. The DoLS are really complicated and they found evidence of poor understanding of them in care homes and hospitals.  Compliance with the MCA itself is pretty poor too – capacity assessments not conducted or (weirdly) outsourced to relatives; “best interests” decisions do not betoken a process compliant with s4 MCA. Restraint isn’t identified as such, and so measures are not taken to scrutinise it, restrict its use and apply the DoLS where necessary. There are huge regional variations in rates of application and authorisation, and whilst some providers and supervisory bodies might like to tell themselves that low levels of DoLS applications and authorisations reflect excellent practice, the CQC slapped that explanation down:

...the real reason for the variation in rates is likely to be more complex. CQC’s evidence suggests, for example, that hospitals and care homes where the MCA is poorly understood struggle to understand when they should request authorisation of a situation they deem to amount to a deprivation of liberty. Reports quoted above suggest they sometimes struggle even to recognise restraint as a matter needing careful scrutiny. Local authorities and PCTs vary in the amount of ongoing training and advice about the MCA, including the Safeguards, they offer to providers of health and social care.' p39 

CQC found evidence of people being (deliberately and knowingly) detained using guardianship and 'on a section 5' (that’s s5 MCA, not s5 MHA), without the use of DoLS. Care homes and hospitals aren’t notifying CQC when they are using DoLS, so CQC can’t keep track of patterns of activity. And on and on... you’ve heard all this before because it’s almost exactly what CQC said in their first and second reports on DoLS. You’ve heard the Mental Health Alliance say it in 2010 and 2012, albeit more forcefully and more urgently calling for reform. If you read this blog you’ve almost certainly heard me say it plenty of times before. You might have read Jackson J’s complaints about the DoLS in C v Blackburn. Perhaps you’ve heard questions raised in the House of Lords about it (here), the House of Comments Health Committee has too (here). Liberty were concerned enough to write to the Joint Committee on Human Rights about it. There have now been two excellent programs by the BBC raising serious concerns about the functioning of the DoLS (one in 2011 on The Report, the other yesterday on BBC 5 Live Investigates). Plenty of research papers and leading textbooks have written about and evidenced the serious problems with understanding and applying the DOLS.  You only have to lurk for a couple of weeks on the MHLO discussion list to see what kinds of horrible problems are still emerging, and which the courts have yet to grapple with.  Although I’ve heard plenty of people say that DoLS are an improvement on the dearth of protections which existed before, I’ve heard literally nobody say they are working well, and almost nobody who believes that they can work well without radical redrafting. Except, that is, the Department of Health.

Doesn’t there come a point where something has to be done about this? Can we go on, year after year, report after report, judgment after judgment, human rights violations by the thousand, without acting?

The problems with the DoLS are very deep rooted.  In part it is just the shoddy drafting, but in part it is also the fact that we are attempting to overlay the rule of law on a field of practice and power relations that have been informalised, naturalised, and normalised for the best part of a century. Since the Percy Report which preceded the great shifts embodied by the Mental Health Act 1959, people have been moved out of the great institutions, into the community, where there was no use of the kinds of regulation which have existed in our psychiatric systems since the eighteenth century. Informality ruled.  The suggestion that care homes, that social care, can exercise extraordinary levels of control over people is met with blank looks: we don’t even recognise what we are doing. The further suggestion that such control should itself be subjected to some kind of scrutiny and control is taken as an affront. Who are these safeguards to inflict themselves on our cosy-cottage world of care?

The second issue is scale. In light of the judgments coming out of Europe, by domestic courts in other jurisdictions (and here), and a growing recognition by UN bodies (Human Rights Implementation Centre, ‘Deprivation of liberty’ as per Article 4 of OPCAT: the scope (University of Bristol: Bristol: 2011)) that deprivation of liberty is synonymous with being in a place you are not allowed to leave at will, it seems that the scale of possible deprivation of liberty in social care settings may be substantial. There are various questions associated with this. From a legal perspective, much will hang on what the Supreme Court finds in Cheshire – if their definition of deprivation of liberty is broad enough to encompass people like P and P (MIG ) and Q (MEG) it could well apply to many thousands of people in supported living, and perhaps many older children in care as well. If this is the case, the Department of Health must surely recognise that the DoLS need redrafting to include these groups, at a minimum, rather than face the prospect of local authorities and courts being swamped by applications to authorise.  I sincerely hope that the Supreme Court, if it finds that P and MIG and MEG are detained sends out a strong message that the government should do so.

But a wider question is who needs safeguards, what are they for? There is – and this is a tendency I have found particularly commonly amongst lawyers (I’m speaking anecdotally here, not as a researcher, and I know plenty of lawyers hold a different view) – to presume that the DoLS are there for a particular type of tug-of-war battle over whether a person should live with their family or in an ‘institution’ of some kind. Cases like Neary and G v E. And yet this identification of DoLS as some kind of mechanism for resolving disputes which take on the character of who owns P, seems in danger of forgetting what they are supposed to be about: liberty. Nobody worries if patients detained under the Mental Health Act have family who want them home. Nobody worries if prisoners have homes and families to go to. It’s pretty damned obvious they are detained. Yet for people like P in Cheshire our vision is oddly clouded; restrictions we would regard as a clear deprivation of liberty if they were imposed on us, are somehow regarded as intrinsic to the person themselves.  Even though it is plain as day that it is something being done to them.  The only way to square this circle is, as David Hewitt so brilliantly puts it, 'to abandon the idea that there are common standards – common liberties, we might say, or common protections – that are available to everyone' and to imply 'that the mentally ill or the mentally incapable are entitled to fewer protections, to lower-grade liberty'.

Yet at the same time, we know that people who are subject to such restrictions are extremely vulnerable to human rights abuses. It’s trite, I know, to keep citing Winterbourne View, the Cornwall Scandal, Sutton and Merton, the CQC’s reports on learning disabilities and dementia services. But the fact is these abuses are happening in part because there is very little serious independent scrutiny of what happens to people in these places, who are subject to really quite intense forms of control, how they end up there or whether they should remain there. I take the view that such people deserve the kinds of individualised, rights-based, independent scrutiny that frameworks like the DoLS can provide. You could make the case that they deserve it under Article 5 or Article 8 – I don’t really care what number you stick on it.

There are various problems with the way the DoLS are drafted. One of the most interesting paragraphs in CQC’s most recent report (from the section, in my mind, which shows just how much the CQC’s monitoring of DoLS is improving* - that on the operation of supervisory bodies under the DoLS) was a list of barriers to good practice supervisory bodies encounter with the DoLS:

• Recent court decisions about the scope of restriction as opposed to deprivation of liberty. 
• The complexity of application forms. 
• Lack of understanding among colleagues of the human rights agenda as opposed to adult safeguarding. 
• Lack of resources in general. 
• Lack of resources to monitor practice in managing authorities. 
• Lack of best interest assessors. 
• Lack of a robust quality assurance process around applications. 
• Instability in the health care system caused by NHS reforms. 
• Professional indemnity insurance (for self-employed assessors). 
• Assessor recruitment and retention 
• Lack of understanding of the Safeguards process in NHS trusts. 
• Problems flowing from poor quality care management or lack of access to a current care manager. 
• Reluctance of some community care teams to release staff for best interest assessor duties. 
• Lack of Independent Mental Capacity Advocates. 
• The cost of Court of Protection hearings.' 

Some of these (the complexity of application forms) could be easily fixed; some are contingent on the wider economic picture; some depend on renewed efforts at awareness raising, but some – like the cost of Court of Protection hearings – suggest much more fundamental issues, which will be much more difficult to address without scrapping the whole framework and starting again.  The sheer difficulty people experience in exercising their Article 5(4) rights under the DoLS must, surely, be regarding as incompatible with the European Convention on Human Rights.

There are all kinds of questions about what form a DoLS-replacement should take. I personally, respectfully, disagree with the many authorities (whom I hold in very high esteem) who think that guardianship can be rejigged to replace DoLS; I think it has too many defects, terrible criteria and unhelpful historical associations. I do, however, think that there may be much we can learn from the way guardianship and the MHA work in terms of the access to justice issues which pervade the DoLS. There are people, I know, who are currently putting together ideas for a replacement framework. The problem is, none of these people seem to be in the Department of Health. What will give, I wonder?

*Declaration of interest: I have sat on the CQC’s DoLS advisory group for this year’s report, but I can genuinely say that I have really admired CQC’s efforts this year. They have shown themselves to be committed to developing a methodology which can grapple with the serious difficulties they face in monitoring a horribly complex framework. The methodology isn’t perfect yet, as CQC freely admit in the report, but they are working on it. I have increasingly high hopes that one day, we might see a DoLS monitoring body which is comparable to the CQC’s work on the Mental Health Act.