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Thursday, 26 September 2013

What do Part 8 Reviews under the DoLS actually do?

The Mental Capacity Act 2005 deprivation of liberty safeguards (DOLS) contain a mechanism whereby a a detention under the DoLS can be reviewed by the supervisory body who has authorised the detention.  What is the point of that mechanism, and how is it working in practice?

I think one of the most common fallacies about Part 8 reviews is that they are some kind of review process which complies with Article 5(4) of the European Convention on Human Rights (ECHR), which says that:
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.
If we cast our minds back to the case which brought the DoLS into existence, HL v UK  (the 'Bournewood case'), the absence of any (accessible and appropriate) procedure for reviewing the lawfulness of HL's detention was one of the ways in which his human rights had been violated.

Following the Bournewood ruling, the government set about providing a legal framework to plug the Bournewood gap.  In the Bournewood Consultation the government mooted the idea of having a 'first tier' review to relieve pressure on courts and tribunals, one idea was to model it on reviews of looked after children by local authorities.  It was supposed to involve family and friends, and contain an 'independent element'.  This proposal received 'wide, though not universal, acceptance' in the consultation responses.  However:
A few respondents were opposed to the “first-tier” review mechanism as envisaged, on the grounds that the review should be formally constituted and conducted and should not be a substitute for applications to courts for reviews if the requirements of Article 5(4) of the ECHR were to be appropriately met. Those with the right to appeal on behalf of a person lacking capacity should be allowed to appeal to an independent court or tribunal without the need to have a “first-tier” review.
Importantly, the Government 'decided to abandon the proposal for a “first-tier” review on the grounds that it might be seen as interfering with the right, under Article 5(4), of appeal to a court and delay the speedy decision by such a court on the lawfulness of instances of deprivation of liberty.'  Read that again.  The proposal for a first tier review which was supposed to be exhausted before going to court, which was supposed to alleviate pressure on the courts, was abandoned.  Part 8 Reviews have little if anything to do with fulfilling a person's Article 5(4) rights of appeal.

So what, we ask, is Part 8 of the DoLS all about?

A Part 8 Review under the DoLS can be triggered by either a managing authority, the relevant person (ie. the detainee) or their representative requesting that the supervisory body (who authorised the detention in the first place) review the authorisation.  The managing authority must request such a review if they feel that a person's circumstances have changed, and so they may not meet the qualifying requirements for detention under the DoLS.  Importantly, the supervisory body can refuse to conduct such a review if they feel that the qualifying requirements are not reviewable - that is to say, the supervisory body can decide - without actually conducting a review into the matter - that the qualifying requirements for detention are still met.  They do not have to give a reason why they have come to this conclusion.

Often when I talk to people about the DoLS, I get the impression that people believe that Part 8 reviews are some kind of dispute resolution mechanism, when detainees or their families are objecting.  Moreover, I think sometimes people believe that it is a mechanism which must be exhausted before an application to court can be made.  Yet if we look back at the Bournewood Consultation, it is very clear that the Part 8 review was never intended to be either of these things, because this was seen as no alternative for a person's right for a court to review the lawfulness of their detention, and there was concern that review might delay this speedy determination by a court.  And in fact, it is clear that the Part 8 review mechanism's primary purpose cannot be a dispute resolution system for one key reason: if the detainee or their representative are objecting to the initial authorisation, how can their dispute be 'resolved' by the self-same body that authorised the detention in the first place reviewing their own decision?  If the Part 8 Review was meant to be some kind of dispute resolution system it would violate one of the most fundamental principles of natural justice: nemo iudex in causa sua (no-one should be a judge in their own cause).  That is to say, it is not an independent review.

So what is the point of Part 8 reviews, then?  Well, I think it is a monitoring mechanism.  One of the issues with the DoLS is that the body which authorised the detention may not have much ongoing contact with the provider who carries out the detention.  So they need a way of being alerted to any changes in that person's circumstances where the criteria for detention are no longer met.  Hence the duty on managing authorities to trigger a review, and the possibility for others to do so as a fallback position.  I think this argument is supported by the DoLS code of practice, which opens the chapter on when a Part 8 review should be conducted by saying:
When a person is deprived of their liberty, the managing authority has a duty to monitor the case on an ongoing basis to see if the person’s circumstances change – which may mean they no longer need to be deprived of their liberty.
Another use for a Part 8 review could be to enable supervisory bodies to get around a sticky predicament they might find themselves in if they have concerns about one of the assessments their independent assessors have conducted.  Assessors under the DoLS are supposed to be independent, so supervisory bodies' management teams cannot lean on them to change their assessment.  However, if they have concerns about its quality they are a bit stuffed: the DoLS requires the supervisory body to authorise the detention if the assessments say that all the qualifying requirements are met.  So what do you do if you are a DoLS authoriser and you have concerns about an assessment?  You trigger a review, on the basis that one of the qualifying requirements appears reviewable.

How often are Part 8 reviews used in practice?  I recently noticed that the Health and Social Care Information Centre (and previously the NHS Information Centre) had actually been collecting data on Part 8 Reviews, but for some unspecified reason this was not being published in the DoLS annual statistical reports.  So, being me, I stuck in a request for this data under the Freedom of Information Act.  These data show that the number of Part 8 reviews is still only a small proportion of the number of detentions authorised overall.  Assuming that some detentions may trigger more than one Part 8 review, this means that fewer than 30% of detentions authorised under the DoLS were reviewed in 2012-13:

Who is triggering these reviews?  Well, the data shows that in around 48% of cases (for 2012-13) it was the managing authority.  The supervisory body itself triggered the review around 46% of the time, meanwhile reviews were actually triggered by the relevant person in 0.6% of cases and their representative in 4.4%.

I've already argued why Part 8 reviews are not to be regarded as a substitute for an appeal against detention to the Court of Protection, but if they were then the data show they'd be a pretty weak one since the detainee and the representative themselves are only very rarely exercising this right:  It makes me wonder (again) how far IMCAs understand their role under s39D(8) MCA to help the detainee and their representative to exercise their right of review.

One of the issues that interests me is variation between local authorities in how frequently they are using the Part 8 review process.  Unfortunately, the data released to me only gave a regional breakdown, which is as good as useless as it will mask any variation between individual supervisory bodies.  Also, I want to link up the number of reviews with the number of authorisations and IMCA referrals for each supervisory body... I'll keep you posted.

In the meantime, what do you think?  Are Part 8 Reviews being treated as an alternative to an appeal to the Court of Protection, or as a hurdle which must be jumped before a person or their representative is assisted to appeal?

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