The advocacy providers: 5th Evidence Session of the Select Committee on the Mental Capacity Act 2005

It’s hard to keep up in legal capacity land these days, what with the Irish Bill being published, this rather marvellous report on legal capacity from the European Union Agency for Fundamental Rights and Munby’s transparency drive. But, still, better late than never. Last week the Select Committee on the Mental Capacity Act 2005 (MCA) heard evidence from advocacy providers, including Steve Gray (from Asist), Elyzabeth Hawkes (from PohWER) and Jonathan Senker (from VoiceAbility). The session primarily focussed on a form of statutory advocacy created by the MCA – Independent Mental Capacity Advocates (IMCAs). The Chairperson was Lord Hardie.

This evidence session did prompt a little twitter rant on my part in relation to the role of IMCAs in accessing the Court of Protection under the deprivation of liberty safeguards (DoLS). The gist of it – as I’ve written about before – is that I am concerned that not all IMCA providers appreciate that it is their job to help people exercise their rights of appeal against detention.  Nothing under the MCA or Article 5(4) ECHR says that people only have appeal rights where it’s in their best interests – and there are a welter of cases about legal capacity which point to the contrary (Shtukaturov, Stanev, DD, Kedzior, Sykora, Lashin and more...). Moreover, there are also ECHR authorities which say that a person’s rights of appeal against detention don’t rest on their case having merits, and there are cases which say that a person’s access to effective remedies in matters like appeals against detention and declarations of incapacity absolutely should not be resting on the individual judgment and discretion of public officials…  In the context of detention under s2 Mental Health Act 1983 - which has no automatic referral mechanism to the Tribunal - Lady Hale noted that the right to bring an appeal against detention under Article 5(4) must be 'practical and effective', meaning that 'every sensible effort should be made to enable the patient to exercise that right if there is reason to think that she would wish to do so'.  I can think of no sensible reason to distinguish the DoLS from this general proclamation, especially since the case was about a person who 'lacked capacity'.  If IMCAs aren't the ones who are supposed to make every sensible effort to help a person exercise their appeal rights, then who on Earth is?  The detaining authorities?  Should it just be left up to families to rock the boat?

Perhaps I’m being unfair, but comments to the effect that it’s a shame the DoLS don’t have an independent element like the Tribunal under the Mental Health Act 1983 had me holding my head in my hands and shouting ‘There IS an independent element. It is called the Court of Protection. And YOU are meant to help people to get there!! Read s39D(8) MCA!!’ Part of the difficulty, I suspect, is the the language of the statute under s39D around when an IMCA must help a person to challenge their detention is somewhat diluted in the DoLS Code of Practice, which merely comments that they may.  Meanwhile the duty to refer to an IMCA under s39D has been interpreted by the code in terms of when a person requests one - not when it appears to a supervisory body that without the help of an IMCA that person would be unable to exercise their rights of appeal and review.  Which - given the difficulty most people would have in understanding their rights under the DOLS and navigating the appeal appeal mechanism - must be most people.  That, I suspect, is why we still see local authorities with many DOLS authorisations (sometimes over 100) and yet not a single referral under s39D MCA.

Safeguards and secrets

The ground shifted subtly yesterday for supervisory bodies in England and Wales.  It wasn’t the earthquake of the Bournewood judgment, but tremors from the Neary ruling will be felt by local authorities and primary care trusts around the country, and perhaps best interests assessors in particular.  The deprivation of liberty safeguards – patchy, bureaucratic, labyrinthine – had finally clunked into life, albeit belatedly, and returned Steven Neary to his father last Christmas.  For everything that can be said about this ruling, about all the aspects of the safeguards that can go wrong, the ways in which they can be distorted and manipulated, and the inherent conflicts of interest at their heart, it is still heartening to hold up this judgment against the ruling of the House of Lords in R. v Bournewood Community and Mental Health NHS Trust Ex p. L and see how far we have come.  The central message of HL v UK, of the importance of due process for people with impaired capacity who are deprived of their liberty, may yet have to fully sink in for some public authorities responsible for supporting and assisting them in their lives – but we can rest assured that it has been very well understood by the judiciary in the Court of Protection.  Mr Justice Peter Jacksons’ ruling was a far cry from deference of the House of Lords’ in Bournewood to professional opinion, the message was loud and clear: the tokenistic application of the safeguards by supervisory bodies is insufficient in and of itself, the court will scrutinise your every step to ensure you have understood and acted upon their spirit.

Why are there no deprivation of liberty safeguards in supported living?

The deprivation of liberty safeguards were drafted in the aftermath of the ‘Bournewood judgment’ (HL v UK), where the ECtHR commented on the “dearth” of regulation and safeguards for the detention of people who lacked mental capacity, in comparison with those detained under the Mental Health Act.  The safeguards are set out in Schedule A1 of the Mental Capacity Act 2005 (MCA), and apply to detention in care homes and hospitals. The DoLS provide a set of administrative and legal procedures to ensure that anyone deprived of their liberty has access to safeguards to allow them to challenge the lawfulness of their detention, and ensure restrictions are proportionate and necessary.  A question that has bothered me since researching the safeguards is why they only apply in care homes and hospitals when increasingly care in the UK is provided through alternative structures like supported living (usually for adults with learning disabilities) or extra-care housing (usually for older adults).

Do the DoLS provide an Article 5 compliant right of appeal?

Article 5(4) of the European Convention on Human Rights provides 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.’

A person deprived of their liberty under the deprivation of liberty safeguards can exercise this right by making an application to the Court of Protection under s21A Mental Capacity Act 2005. Under s21A the court may consider whether the qualifying requirements for deprivation of liberty authorisation are met (see s12 of Schedule A1), the duration of the authorisation, the purpose of the detention and any conditions that authorisation is subject to. The Court of Protection has the power to vary or terminate the authorisation, or direct the supervisory body to do so. The s21A appeal mechanism is, potentially, a very powerful safeguard. The court might consider, for instance, whether depriving someone of their liberty is in their best interests – or even whether they actually have the mental capacity to decide for themselves where they should be accommodated. It could direct that a deprivation of liberty authorisation should be terminated, in effect freeing a person to leave the place at which they are detained.  It did this in the case of Steven Neary just before Christmas and in another (unreported) case in the 39 Essex St Court of Protection Newsletter for January. Or it could place additional conditions upon on authorisation, in order to ensure that detention where it is occurring really is in somebody’s best interests, or is the least restrictive option available. The question I will be exploring in this post is – how effective is this safeguard in practice? My concern is that despite its potency, it remains inaccessible for the vast majority of people who are deprived of their liberty and their families.

An introduction to the deprivation of liberty safeguards

This posting is a brief summary of the deprivation of liberty safeguards for anyone who doesn't know anything about them, but would like some more information. I'm going to be talking a lot about the deprivation of liberty safeguards and the Mental Capacity Act in future postings, some in more technical detail, so it's handy to have a post for me to refer back to for anyone who's new to the concept.



What is a 'deprivation of liberty'?
It seems logical to being with explaining what a deprivation of liberty is, but unfortunately that's one of the hardest things to understand about the safeguards. It's probably easiest to talk you through their history and some examples, because there is no straightforward definition.



The 'deprivation of liberty safeguards' were introduced in 2009 following a famous court case, often called the 'Bournewood case'. The Bournewood case concerned a man called HL, who was autistic and lived in an adult foster placement in the community with two carers, Mr and Mrs E. One day at his day centre, HL became very agitated and distressed. His GP was called, who gave him a sedative and it was decided to take him to Bournewood Hospital. At Bournewood hospital he was admitted 'informally' for assessment and treatment. An 'informal' admission means the hospital don't have legal powers to detain someone; it basically means they are not 'sectioned' under the Mental Health Act. 'Sectioning' under the Mental Health Act means hospitals can detain people who refuse consent to be admitted and treated; the problem for people like HL is they are deemed to 'lack mental capacity' to either give or refuse consent to be treated. This means that when they are compliant, they were historically treated as if they had consented to being admitted. In law though, if someone lacks mental capacity, their being compliant doesn't mean they have consented. HL was very likely 'compliant' because he was heavily sedated, because he lacked the practical and communication skills to kick up a fuss about being incarcerated, and perhaps he was heavily institutionalised having grown up in a long-stay hospital (Bournewood hospital, in fact).



Things came to a head because the hospital refused to let Mr and Mrs E, HL's carers, visit him. They said this was because they didn't want HL to think he could go home with them. Mr and Mrs E took up court proceedings, demanding that HL be returned to their care. They didn't give up, even when the House of Lords said that HL had not been detained (because he'd never actually tried to run away and been prevented) and that even if he had, professionals had acted out of 'necessity'. They fought the case all the way to the European Court of Human Rights, who agreed with Lord Steyn that it was a 'fairy tale' that HL had been free to leave. The European court heavily criticised the UK system of 'informal' detention, because it lacked any proper safeguards for people and their families to appeal inappropriate detention. In response to this judgement, the UK government drafted the 'deprivation of liberty safeguards'.



Since the 'Bournewood case', there have been many other cases where the courts have been asked to determine whether a person is deprived of their liberty or not. The courts found, for instance, that a man in a care home who was not allowed to return home to his wife was deprived of his liberty. They found that a woman with dementia, who was to be removed from her home because her wandering placed her in danger, was deprived of his liberty when moved to a care home. They found a young man with learning disabilities, who was removed from the care of his mother against his and her wishes, was deprived of his liberty. They found that when Manchester Council removed a young man with learning disabilities from his foster carer on 'safeguarding' allegations, and placed him in supported living, they unlawfully deprived him of his liberty.


However, they also found that another young man with learning disabilities who was removed from his mother's care by police was not deprived of his liberty, in no small part because he didn't want to go back to her. They found that adults or children with learning disabilities who live with their parents or foster carers are generally no deprived of their liberty, even if they are locked in their rooms at night and under their carers' constant monitoring. It's really difficult to give any general rules about what constitutes a deprivation of liberty; in my view the courts haven't really produced a consistent line on this, and it's something I'll try and write about in the future. For now though, if you have any suspicions that you or someone you care about is deprived of their liberty, please read on for information about your rights.

What are the 'deprivation of liberty safeguards'?

The deprivation of liberty safeguards, often called the DoLS, are a set of administrative and legal procedures which are there for the protection of anyone who is deprived of their liberty in care homes or hospitals in the UK. Before going on to outline them, it's important to remember that just because the DoLS only apply in care homes and hospitals, people can be found to be deprived of their liberty in supported living or other types of accommodation as well (see below for more on this).


If a care home or hospital deprives someone of their liberty, they have to apply to their local 'supervisory body' for authorisation. For hospitals, the supervisory body is the local Primary Care Trust. For care homes, the supervisory body is the local authority. Most supervisory bodies have a specialist team who deal with these applications, and the ones I am acquainted with are very approachable and friendly and happy to answer questions from professionals or members of the public with specific concerns. So, once the care home or hospital has applied to the supervisory body for 'authorisation', the supervisory body has to carry out a number of assessments to ensure that the deprivation of liberty a) is actually occurring, b) is appropriate. These include checks on the age of the relevant person, whether they have a qualifying mental disorder that warrants 'detention', how restrictive the type of care being provided is and whether it's in the person's 'best interests' to meet their care or treatment needs in that way. If all the qualifying criteria are met, the supervisory body must grant authorisation to the deprivation of liberty for a maximum period of a year, and ensure that they appoint a 'representative' and/or an Independent Mental Capacity Advocate (IMCA) to ensure the relevant person's rights are upheld (more on this below).

The assessment process

There are two key figures in this assessment process: the mental capacity assessor (often, but not always, a medical doctor) and the 'best interests' assessor. Mental capacity assessors check whether the relevant person has the mental capacity to make decisions about their own care – if they have capacity, they might, for instance, decide they want to stay in the care home or hospital (they 'consent' to it), or they might want to discharge themselves. Best interests assessors make sure the care plan is the 'least restrictive' it can be in order to provide the necessary care, and that it is in the person's best interests to provide care in that way. They should consider alternatives, although there seems to be some confusion about how wide the range of alternatives should be. In one case, the judge said that local authorities should always ensure placements with family carers are the top priority of any possible placements, which suggests that supervisory bodies should be considering whether care could be provided with families – if they are willing, and with appropriate support – rather than placing someone in residential care against their family's wishes.

Representatives and IMCA's

Supervisory bodies should appoint an appropriate friend or relative of the relevant person to be their 'representative' under the DoLS. The representative is a very important figure in the DoLS, and they have lots of special rights that are key to making sure the safeguards operate fairly. A guide for representatives by the Department of Health is available here. Representatives have the right to see any reports or assessments about the relevant person, they must also be consulted by the assessors and kept informed of the status of any deprivation of liberty authorisation procedures. If a representative does not agree with the outcome of the supervisory body's authorisation process, they have the right to seek free legal advice and representation, and appeal in the Court of Protection. These are really really important rights, because otherwise it can be very expensive to get legal advice about a deprivation of liberty case, and you might have to pay a lot of money even to ask permission to take the case to the Court of Protection (if this is your situation, don't give up, see below for more suggestions).



Sometimes people who lack mental capacity don't have any friends or family who would make an appropriate representative. In this case, the supervisory body must appoint them an Independent Mental Capacity Advocate (an 'IMCA') who can stand up for the relevant person's rights. The IMCA is an independent figure, who can scrutinise the DoLS process and make sure everything is going as it should – IMCA's can also refer the case to the Court of Protection if they have any concerns.

Section 39D IMCAs: Vital help for representatives and carers

If you are appointed to be a representative, the DoLS can still be very bewildering and it can be difficult to know what your rights are and how you can protect them. Supervisory bodies have a duty to offer representatives the support of a 'section 39D IMCA'. These are people with considerable experience and knowledge of the DoLS, who are appointed to help both the relevant person and their representative navigate the safeguards. An IMCA could, for instance, come to meetings with professionals and offer support, or could help you understand assessments or legal documents. This is a great resource, but not all supervisory bodies remember to offer this help – in fact, some might not even be aware that you have this right. If you are a representative and you think an IMCA might help you, don't be afraid to ask for one - they can be an invaluable source of support and make the entire DoLS process operate more smoothly.

If you're not a representative

A recent report by the Mental Health Alliance found that some supervisory bodies were deliberately picking representatives who supported the deprivation of liberty, and overlooking carers or relatives who opposed it. This is a bit sneaky, because unless you are appointed to be the representative you don't have access to the reports and information you would need to challenge the deprivation of liberty, and you don't have access to free legal advice or representation to bring the case before the Court of Protection. If this is your situation, and you oppose a deprivation of liberty, there are few avenues left open to you. The best first option is probably to politely raise it with the supervisory body, and request that they consider making you the representative or write to you explaining why you were not considered an appropriate choice. If that does not succeed, you may have to seek further advice from local advocacy services or specialist solicitors (see below for guidance on finding solicitors).

If you think someone is being unlawfully deprived of their liberty

If you think you, or someone you know, is being deprived of their liberty without authorisation, the first people to raise this with are the managing authority of the organisation providing the care. In a hospital, this would be the hospital management. In a care home, this would be the registered care manager. If this is occurring in another setting, for instance 'supported living' accommodation that is not a registered care home (you can check this by looking at their CQC inspection report to see if it says 'care home' or 'domiciliary care'), then you should still raise it with the management but bear in the mind that the DoLS will not apply (read on for more information).

Once you have raised it with the managing authority, they have a duty to consider making an application for authorisation from the supervisory body. If they do this, then the assessment process will be triggered as described above. If they do not, and you still believe the relevant person may be being deprived of their liberty without authorisation, then any member of the public has the right to directly request that the supervisory body assess whether the relevant person is being deprived of their liberty. You can do this by contacting the local authority or PCT directly, saying that you think an unlawful deprivation of liberty is occurring and providing the details. There is also a template letter available in this guidance for carers, provided by the Department of Health.

If the DoLS don't apply

When the DoLS were set up they were intended to apply in care homes and hospitals. Even at the time, the Commission for Social Care Inspection (now the CQC) and various other agencies reminded the Department of Health that lots of people who lack mental capacity – particularly people with learning disabilities – actually live in supported living accommodation rather than care homes. Unfortunately, the Department of Health did not take this advice on board and the DoLS do not apply in care homes. This means that there is no assessment process, no free legal aid for representatives and no free right to take the case before the Court of Protection for concerned relatives. It's a big old mess. Some supported living services actually believe that because the DoLS don't apply to them, it's impossible for them to deprive someone of their liberty. It's not. It's happened in this case, and this. If you think that you or someone you know is being deprived of their liberty in supported living accommodation, or perhaps even in their own home by domiciliary care staff, then probably the best first port of call is to contact the local authority and see if they will initiate an investigation under 'safeguarding' procedures. Some local authorities take deprivation of liberty very seriously, and will do this.



If contacting the local authority or PCT does not resolve the problem, the only option may to bring the case before the Court of Protection. Because the DoLS don't apply, you won't have an automatic right to legal aid, although you may still qualify if you are on a low income (contact the Community Legal Service for more advice on this). If you want to attempt to bring a case without legal representation, you would still have to pay a fee yourself to the court. If you plan to go to court alone, you might find the Personal Support Unit's services helpful. There is guidance here on applying to the Court of Protection; the number for the Court of Protection is 0300 456 4600.

Finding solicitors

People who are deprived of their liberty under the safeguards, and their representatives, have an automatic, non-means-tested right to legal aid.  If you are a representative, or you want legal advice on these matters, you will need to find a solicitor who specialises in the deprivation of liberty safeguards. This may be harder than it sounds, as most high street solicitors do not practice in this specialist area. There are no listings of solicitors who practice in this field, but contacting solicitors from the Mental Health Lawyers Association's regional directory is probably a good start. The Law Society also has a 'find a solicitor' search engine, where you can enter your postcode and choose 'mental health and incapacity' from the dropdown menu. Not all solicitors practicing in mental health law will have expertise in the DoLS, but it is probably worth asking them for recommendations of anyone in the area who can. You may have to phone a great many solicitors firms before you find someone who can take on your case, if this occurs please don't be disheartened and keep persevering. And good luck!