Interesting articles on capacity and deprivation of liberty

There are several brilliant pieces of writing about mental capacity and deprivation of liberty readers might be interested in.

The first is a blog post by Mark Neary relating 'a complete work of fiction' which describes the difficulty a person may have in challenging a detention if it isn't authorised under the DoLS.  The problem is that often authorisation is never sought by managing authorities, or it might be sought but later on revoked because the supervisory body decide it's not actually a deprivation of liberty because the person has nowhere else to go, or their assessors hadn't heard the person object - even though everybody else has, or because the restrictions are 'necessary', or whatnot (assisted, no doubt, by the high level of uncertainty and contradiction in Article 5 case law).  Without a DoLS authorisation there's no more advocacy rights, no more legal aid, no more permission-free routes to the Court of Protection to challenge it.  So getting there requires a huge level of determination and awareness of the legal process, not to mention a hefty injection of your own cash - which you might never see again because of the general rule on costs in the Court of Protection.  Basically, there's a technical right to challenge this "non-detention", but it's pretty inaccessible and comes with a huge price tag.  Cynical supervisory bodies could revoke DoLS authorisations as a particularly sneaky chess move where litigation looks likely, and those deprived of the safeguards will struggle to have recourse against this.  And as Mark points out - and particularly for older people - sometimes by the time these cases actually get heard, a person may have been detained for so long that the odds are stacked against them being released from detention to return home due to skills lost to institutionalisation, declines in health or even homes sold to pay for care or lost tenancies.  Frankly some certainty as to the scope of Article 5, to help detainees and their supporters argue forcibly that the DoLS should apply, cannot come soon enough.  In the longer term, the whole approach will have to be rethought.

Does Article 5 create positive obligations to provide community based care?

An article in Community Care this week commented that a cap on charges for non-residential care, introduced last month in Wales, may create ‘a perverse incentive for authorities to place more people in residential care, as they could then recoup more money in charges.’  For reasons of cost, councils may choose to meet people’s eligible needs through residential care placements, rather than supporting them through community-based services.  This is a thorny area.  There is a general preference at policy level - and often (but not always) for service users - for people to be supported in the community rather than having to leave their homes to go into residential care.  But the reality is that community based solutions can cost more, particularly as people’s needs increase.  Working in care, I have known people whose needs increased to a point where local authorities were no longer prepared to support them in their own homes because it became markedly cheaper to meet their eligible care needs in a care home.  Sometimes this was despite their expressed preference to remain where they were.  Are there any legal reasons arising out of human rights law, that might lend weight to preferences for community based care plans?