Eleanor Roosevelt, 1958

'Where, after all, do universal human rights begin? In small places, close to home -- so close and so small that they cannot be seen on any map of the world. Yet they are the world of the individual person... Unless these rights have meaning there, they have little meaning anywhere. Without concerted citizen action to uphold them close to home, we shall look in vain for progress in the larger world.' Eleanor Roosevelt, 1958

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Monday, 27 May 2013

MIND call for evidence on DOLS

If you have experience of Deprivation of Liberty Safeguards, MIND would like to hear from you.

In the autumn, the Supreme Court of England and Wales will be hearing two cases about the Deprivation of Liberty Safeguards (DoLS) under the Mental Capacity Act 2005. The Court will consider what ‘deprivation of liberty’ means in the social care context.

Mind is going to provide independent evidence to the Court on how the DoLS system is working in practice and how it could be made clearer and safer for service users, their families and carers.

Mind are keen to hear from people who have experienced the DoLS system, whether as someone who is or has been under a DoLS, a family member of someone under a DoLS, an advocate working with people who lack capacity, a carer or a health and social care professional.

All the responses that we receive will feed into the evidence that Mind provides to the Supreme Court and will therefore assist the judges in making a decision that respects service users’ needs.

If you’d like to tell us about your experience with DoLS, please complete the short survey.

The survey closes on 6 June 2013.


  1. Does anyone know which the second DoLS case being considered by the Supreme Court is? Obviously, the first one is the West Cheshire case, hadn't heard about anything else being joined to it.

    1. Hi there,

      It's a case called P & Q v Surrey County Council [2011] EWCA Civ 190, you can read it here:

      It used to be known as MIG & MEG (Surrey County Council v MEG & MIG v Anor [2010] EWHC 785 (Fam)), but the Court of Appeal changed their 'names' to P and Q. It'll be quite confusing in the Supreme Court, as there is already a P in Cheshire, so I wouldn't be surprised if they became MIG and MEG again.

      The MIG and MEG case was the first real sign that the meaning of deprivation of liberty was narrowing from the rulings in HL v UK and JE v DE. In the Court of Appeal, Wilson J placed a lot of emphasis on the 'normality' of a person's living arrangements (which Munby LJ then transmuted into 'relative normality' in Cheshire - that is, the standard of 'normality' depends upon how people with that kind of disability are typically treated). Another key factor was 'objections', with a person being more likely to be considered deprived of their liberty if they objected. This element wasn't discussed in Cheshire, it was ignored in rulings like C v Blackburn with Darwen. In any case, it seems to depart from the Bournewood judgment, whereby HL was considered deprived of his liberty despite not objecting...

  2. MIG and MEG. How dull. Nice the Supreme Court is giving the issue some attention but a pity they've chosen two cases that aren't typical of most DoLS cases.

    In most cases, people are asking or making to leave the institution that evokes DoLS procedures and the real difficulty is interpreting whether this behaviour should or shouldn't require authorisation. This relates to some of the West Cheshire criteria, i.e. if someone is so confused that their requests to leave aren't 'meaningful' (perhaps they're trying to leave to go to a home of 40 years ago because of a memory disorder) then I think you could stretch s. 5 and s. 6 of the MCA to say they're just getting the care they need by being restrained from leaving.

    The difficulty is that social workers with incarcerationist intentions and care home managers then report with glee that since everyone in a care home really wants to leave and that since most of the residents are a bit fuzzy cognitively, and they lack capacity (evidenced by the lack of agreement with wise professionals), no one's stay needs authorisation so there's really no grounds for impertinent suggestions about reducing restrictions or seeing if someone might be better at home, thankyou very much.

    Another approach would be having something like a DoLS assessment not connected to the chimera / chameleon of a DoL but required before any major transition (for instance, into care from a home setting or a major change in a care plan) for someone assumed to lack mental capacity.

    DoLS was drafted as a mess and the trend of case law isn't helping. Obviously, in view of the tremendous lack of appetite the government has for dealing with issues like this (how long did it take to amend the MHA and how long did it take to legislate on DoLS in the first place?) it would be naïve to expect resolution through supplementary legislation and if a new bill were proposed, would you like to bet that most Tory MPs would take their note from the Daily Mail's rabid campaign against the Court of Protection and the Human Rights Act rather than a balanced consideration of the continuing right of the vulnerable to be considered as people and not subjects of social policy?

    I have heard though from someone who met him that LJ Munby expects his judgment to be struck down on the abstruse grounds that he considered purposes and intent too heavily in making the judgement.

    1. I increasingly think that the whole Article 5 issue is a distraction and a DOLS-like framework should be available to guarantee due process and independent scrutiny for any major interference with a person's rights (say, Art 8 rights - to choose where one lives, refuse consent to medical interventions, or even for major medical interventions which a person is compliant with but may not understand the implications of such as use of antipsychotics for people with dementia etc). Of course, under the CRPD it's questionable whether you could even permit such interventions in the first place, no matter how well safeguarded...

      Regarding the question of objections, I'm aware that since the ruling in C v Blackburn with Darwen, a person who is kicking the door of the care home down in an attempt to escape may not be considered deprived of their liberty, but I think this is a dodgy ruling on every level. In the first place, it ignores the emphasis placed on objections in P & Q, there's no authority for ignoring objections like this in Cheshire and it has been completely contradicted ECtHR rulings like Stanev, DD and Kedzior. My guess is the Supreme Court will have some obiter remarks about the role of objections, despite the fact MIG and MEG and P in Cheshire aren't said to be objecting.

      I think if the Supreme Court overturns Cheshire and P & Q (which it might, in light of recent rulings from Europe, and it will almost certainly want to overturn the reasoning in Cheshire on purpose/intentions in light of Austin v UK and I hope it will countenance arguments that 'relative normality' is a discriminatory standard), the government will be forced to amend the DOLS because of the supported living issue. However, I'm doubtful this government would seek to replace DOLS altogether as that would involve engaging with issues that are complex and have significant cost implications, and it's easier to just point the finger at Labour and the Court of Protection for doing unpopular things.

  3. Thanks Lucy- your postings have been a great help to me in academic work and in practice.
    I am currently reviewing a case of someone placed in a home following detention under S3; he is a management problem. The staff recognise that he does not want to be there, but assure me this is not a Dols issue(!). I can't get the mental health team to issue me with either the capacity assessment or the OT assessment which "shows his inability to live independently". I asked about IMHA and was informed by his CPA worker that this was not needed as his sons agreed the move. He made repeated allegations against said sons in the past- that they wanted him in a home and his money. They now have LPA!
    I am trying to get management that this is beyond a spat between ASC and the CMHT and that there are legal(and ethical) issues involved.
    It is my impression that older people with dementia are particularly prone to this attitude that a care/nursing home placement is in the patients best interest and can be decided upon
    by getting a relative to agree.
    Unfortunately my client is refusing to speak to anyone, so it is hard to know which way to take this. However the article by Emmett certainly strikes a chord and the ruling by J Baker in CC V KK is food for thought.

    1. Oh dear - what a horrible case! Has anybody made a third party referral to the supervisory body for a DOLS assessment? If they grant the authorisation, then he could use the legal aid entitlements of the DOLS to instruct a solicitor to appeal to the COP. If they didn't grant the authorisation on the basis he wasn't DoL, I wonder how easily a lawyer could get legal aid to JR that decision or challenge it in the COP? In light of the ECHR rulings it might be possible to argue that C v Blackburn is dead dodgy as grounds for saying that a person who is objecting to their placement isn't DOL?

      I also think that if there's a conflict between a person and their LPA, and allegations of this nature are being made, the OPG should definitely be investigating. Has anybody alerted them to this matter? TBH, I think he should be enabled to challenge his LPAs in the court of protection (see DD v Lithuania on the importance of being able to litigate conflicts with one's guardian, which an LPA pretty much is for these purposes) but who knows how you could fund this if he's lost access to his finances. The OPG may be the only accessible route (despite a theoretical right to litigate to remove his LPAs).

      I'm not sure if he would qualify for an IMHA if he's not currently subject to a MHA regime, and a key weakness of IMCAs is that (unless you're subject to DOLS) you don't qualify if you are suitably befriended. The trouble is, as in this case, this means a person can't necessarily access an IMCA if they are in dispute with their family, but family agree with professionals.