One of the recurring themes that has come up before the House of Lords Select Committee on the Mental Capacity Act 2005 (MCA) is a lack of redress for non-compliance with the MCA and the deprivation of liberty safeguards (DOLS). The Lords have asked on several occasions whether there is a need for a 'bigger stick'. A fortnight ago, Alex Rook from Irwin Mitchell Solicitors told the Committee that part of the problem is that:
...the Court of Protection is ...a forward-looking court, which is generally a good thing. When you come to the court, the question before it is: what is in this person’s best interests? The court is often described as being inquisitorial rather than adversarial. You do not win or lose: you just establish what is in this person’s best interests. That almost acts as a disincentive to look at what has happened in order to get there in the first place. I am sure as well, partly due to resources and time, that the court is quite often quite reluctant to look at what has gone wrong rather than at how we solve it. That is perhaps in contrast to a lot of other civil proceedings, where you are generally looking backwards and saying, “What has happened there? Was it right or was it wrong?”.He gave an example of a case where this was an issue:
...we acted for an elderly lady who went from her own home into hospital and was then moved from hospital into a care home. Then, once she was in the care home, her authorisation of the deprivation of liberty was made. That was plainly too late. The court tends to say that is too late to express some disappointment at that, but it does not go much further, because the court is actually looking at the primary question: should she be in that care home or should she go home? There is not really emphasis in the court to actually look at that; non-compliance has already taken place, if that makes sense.As Elmari Bishop said, in her evidence to the Committee, there need to be both internal drivers (better training, management buy-in, support of front line workers) and external drivers (penalties for non-compliance) to improve compliance with the MCA and the DOLS. Yet these often appear few and far between. This is especially the case in relation to judicial remedies for compensation such as a claim under the Human Rights Act 1998 or for a declaration of past unlawful action in the Court of Protection, in no small part because of difficulties with legal aid (in Alex Rook's evidence he gives a very cogent explanation of this problem).
There are growing signs of CQC inspectors taking action in relation to non-compliance with the MCA and the DOLS, although there is a great deal of work to be done to improve the understanding of their own staff (as David Behan said in his evidence to the Committee). As I've written before, another potential avenue for redress of past non-compliance is the Ombudsmen. The Ombudsmen have a somewhat wider remit than the Courts, as their task is to examine maladministration. This week the Local Government Ombudsman and the Parliamentary and Health Services Ombudsman has published a finding of maladministration in relation to a case which involved the use of DoLS, involving an NHS Trust and the local authority. Thanks very much to Akib Qadir for sending me the link.
The case concerned a couple (Mr and Mrs X) and their son (Dr X). Mr and Mrs X both had dementia, and their son - Dr X - had arranged home care for them. The professionals involved had concerns about this care, but instead of clearly communicating that to him they held a 'professionals only' meeting where they decided that Mr X would not be allowed to return home and to apply for an authorisation under the deprivation of liberty safeguards to that effect. Dr X was very distressed about this decision and the failure to communicate clearly to him their concerns about the care which had had arranged. Later on, his mother was sent a report which communicated a decision that she too should live in a care home - separately from her husband - which caused her great distress. The focus of the Ombudsmen's findings was the communication breakdown between professionals and Dr X, the decision to exclude him from meetings where decisions were being made, and the resultant injustice upon his parents who endured a period of time with inadequate care: 'They suffered a needless loss of dignity during that time.' One of the important lessons from the case was that practitioners with concerns about the exclusion of family must be prepared to challenge that practice, even if it means standing up to medical practitioners (another recurring theme in the House of Lords Select Committee evidence is the difficulty non-medical practitioners have in standing up to medical practitioners where they do not comply with the MCA and jump to conclusions about capacity and best interests or exclude the person and their family).
The case itself, although interesting, carries no new lesson which public authorities should not have already learned from Neary about clear communication and involvement with families in care planning decisions. Unlike the Neary case, the end result appears to be that Mr and Mrs X did not remain in their preferred living arrangement, and there is little discussion about the actual end result. Presumably this is because it did not form part of the complaint, but also because if the concern is with present arrangements the Court - with it's powers to make declarations as to capacity and best interests - would be a more appropriate forum. But it is heartening to see that the Ombudsmen are prepared to look at issues which the Court may not, about past wrongdoing, as this may provide another critical external driver for improving practice.
The Ombudsmens’ report on the Kirklees case is of only limited current relevance to DoLS, as the events date back to mid-2009 when the scheme was in its infancy, and subsequent Department of Health guidance, plus caselaw (in particular Neary) would now rule out its use in this situation other than as an emergency protective measure and require that, as an “intractable dispute” with family engaging Article 8, such a matter should be referred to the Court of Protection.
ReplyDeleteIt is, though, of considerable relevance to the question as to whether the Ombudsmen have a useful role to play as “external drivers” in enforcing compliance by public bodies with the MCA and DoLS. Annex B makes it clear that “in addition to the general principles of good administration” they also consider “the relevant law and policies that the organisation should have followed at the time” so this would be a reasonable expectation, and one of the heads of complaint which was accepted for investigation was “the way in which the decision was taken to authorise a Deprivation of Liberty order on Mr X in the care home” i.e a specific complaint about the performance of that statutory function.
However, although the investigation was carried out quite recently, it’s clear that the investigator knew very little about DoLS, to the extent of not even knowing that an urgent authorisation is something which the managing authority gives itself and which is not “authorised by the Council”. This is despite the correct position, as per the DoLS Code, being set out in Annex C. This isn’t an arcane point but something you would learn in the first hour of a basic DoLS course, which suggests that the investigator had never been on one despite the fact that DoLS has now been around for over four years.
In consequence, they don’t appear to have asked a whole series of obvious questions, such as who the Best Interests Assessor (BIA) consulted, who was appointed as Relevant Person’s Representative and why, and whether they were then given information about their power to appeal, and there isn’t anything to suggest that the BIA or anyone else involved in the DoLS process was even interviewed or the DoLS paperwork examined.
As a result, the complaint about DoLS does not seem to have been fully investigated. The report confines itself to “the decision to request a Deprivation of Liberty order” which is much narrower than the head of complaint above, and even then it fails to recognise that that decision was a “best interests” decision and therefore subject to Section 4 of the MCA and to the requirement in S4 (7) (b) to consult with and “take into account the views of anyone engaged in caring for the person or interested in his welfare.” In fact, although the MCA runs through the entire case, it is never mentioned once, again suggesting that the investigator didn’t know much about it.
This all tends to confirm the impression I’ve gleaned from other Ombudsman judgements, that if they use generic investigators without specialist knowledge or advice they are competent only to identify lack of compliance with “the general principles of good administration”, and that if the complainant isn’t sufficiently knowledgeable or well-advised to flag up for themselves the specific breaches of law or procedure, they are unlikely to spot them.
Roger Hargreaves