UN Special Rapporteur calls for an end to involuntary treatment and detention justified by mental illness... or does he?

The UN Special Rapporteur on Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Juan E. Méndez, issued a report and a statement* to the UN Human Rights Council on 4th March this year, in which he discusses medical interventions which override a person’s choices on disability related grounds – including involuntary treatment and detention.  He places them in the context of the UN Convention on the Rights of Persons with Disabilities and discusses their relationships with inhuman and degrading treatment and – in some cases – torture.

UN Convention on the Rights of Persons with Disabilities as the ‘new normative paradigm’ for interpreting norms around torture, inhuman and degrading treatment
The Special Rapporteur’s report and statement are firmly grounded in the normative ordering of the UN Convention on the Rights of Persons with Disabilities (CRPD). Contrary to some recent suggestions that treaties like the UN CRPD simply ‘replicate’ the rights contained in other treaties for people with disabilities, the UN CRPD contains some radical departures from other human rights norms, especially in the area of involuntary treatment and confinement of persons with mental disabilities. The Special Rapporteur stated that ‘the Convention on the Rights of Persons with Disabilities offers the most comprehensive set of standards on the rights of persons with disabilities, inter alia, in the context of health care’ [61]. As we shall shortly see, he is critical of other human rights standards which permit involuntary treatment and confinement of persons with disabilities.

And while we wait for the Cheshire ruling...

*Drums fingers on the desk*.  Everybody's waiting for the Court of Appeal ruling in Cheshire West and Chester Council v P.  The Cheshire case of course was the one where the naughty local authority rewrote care records after a hearing to disguise the degree of physical intervention (ie. restraint) that was occurring in P's care.  It was this deceit by the local authority that was picked up on in news reports, but at the time I wrote that one of the most interesting things about the case was that it threw yet another spanner in the works as to the meaning of deprivation of liberty.  Specifically I wrote:

Authoring our ends

For the last two weeks the Court of Protection has been hearing a request from the family of a severely brain damaged who is in a minimally conscious state, to allow her to die.  The official solicitor, who is representing the woman – known as ‘M’ - as her litigation friend, opposes the request.  Until the judgment is published (probably later this week, or early next) we won’t know all the arguments and evidence advanced on both sides.  However, the press are attending the hearing and the family are reported to have said:

‘She can’t move, she can’t speak, she’s fed through a tube, she can’t even enjoy a cup of tea.

'She’s got no pleasure in life; her daily routine is just being taken out of bed, put in a chair, showered, then put back to bed.'

‘There’s no dignity in it.'

‘It’s not a life, it’s an existence and I know she wouldn’t want it.’

They are also reported to have said that ‘she would never want to live a life dependent on others, even if she retained her mental faculties.’

2. Lawful restraint requires adherence to 'best practice' guidance

This post is the second in a series of three posts on the lawful use of restraint, and its relationship to deprivation of liberty.  It relates to the rulings in C v A Local Authority (2011) (Re C) and Cheshire West and Chester Council v P (2011) (Re P). The first post is on the importance of recognising restraint where it is occurring. The final post is on the evolving meaning of deprivation of liberty in Court of Protection case law.

The MCA has often been praised for its succinct and elegant construction (such praise, obviously, does not extend to the deprivation of liberty safeguards), and the provisions on restraint are a case in point.  The MCA does not create any new torts or offences of ‘unlawful restraint’[1]; instead it codifies a general defence against criminal charges or litigation for acts which would otherwise be a breach of a person’s common law or statutory rights.  In order to apply this defence, Section 5 MCA requires that a person takes steps to establish whether P has capacity in relation to any act in connection with care and treatment, and if they lack capacity any acts done must be in P’s best interests.  Section 6 MCA places further conditions upon the lawful use of restraint: it must be believed to be necessary to prevent harm to P, and it must be a proportionate response to the likelihood and severity of the harm that would befall P without restraint.  The general principles of the MCA further refine the conditions under which this defence can be applied, in particular that before an act is done ‘regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action’ (MCA s1(6)).

Representing parents who lack litigation capacity - comments and corrections!

This is a follow up to my last post, prompted by discussions with Unity and Carl Gardner on Twitter and in the comments.  It relates to the EHRC's written submissions for RP v UK.

I'm not sure what the blog etiquette is for when you change your mind; whether one should go back and change the original post, put in a messy strike through and corrections, or just write another post...? In this instance I'm going for the latter since my change-of-heart is less of a neat U-turn than a 20 point turn in a narrow road.  I had written "There are a few passages in the judgment where it appears that RP's solicitor and the OS made decisions on the basis of what they felt were in the best interests of RP's child, rather than RP herself (see paragraphs 77 and 160 of the judgment)." Unity makes this comment:

Para 77 - No real cause for concern. What that appears to document is the Official Solicitor informing RP of their opinion that she has a hopeless case and cannot, therefore, oppose the court for ethical reasons. OS's duty to act in RPs interests is bounded by ethical duties which cannot be overriden, even if this is not what RP wants.

Para 160 indicates that the court concurred with the OS's judgment and hence that he behaved ethically.

I think Unity is correct, and my initial reading was wrong.  On closer reading, I think it looks as if the OS may have made a best interests assessment, but part of that assessment included whether the case had a realistic prospect of success, which in turn required that the OS take a position on how the court was likely to view the best interests of the child.

On the new website for the Official Solicitor, there is an entire page devoted to how he acts on behalf parents who lack litigation capacity.  On this page are some documents setting out his standard instructions, and one relates specifically to how he represents parents during Children Act 1989 proceedings.  It's well worth a read if you're interested in this issue; section 3 describes in some detail the basis for his decisions.  As I had expected it to be (and hence why I was surprised by my initial reading of the judgment), decisions are supposed to be taken in the best interests of the protected party - in this case the parent - and not the child. This is what the OS says he takes into account in determining what is in the best interests of the protected party:

(1) the client's past and present wishes and feelings, the beliefs and values that would be likely to influence his or her conduct of the proceedings if he or she had capacity, and the other factors he or she would be likely to consider if able to do so; 

(2) the need, so far as reasonably practical, to permit and encourage the client to participate, or to improve his or her ability to participate, as fully as possible in decisions relating to the conduct of the proceedings;

(3) the need to respect the emotional bond between parent and child; and 

(4) the fact that the court will view the child’s welfare as the paramount consideration and apply the welfare checklist.

 He then goes on to state:

3.3 In formulating my submissions as guardian ad litem I would wish to present any realistic arguments and relevant evidence that may be available on behalf of (i.e. in support of) the protected party in relation to the issues before the court, whether these are issues of threshold or of welfare. The criterion is whether the point is reasonably arguable, not whether it is likely to succeed at trial. In relation to issues where there are no realistic arguments to be made it will almost always be more appropriate (although not inevitably the case) for me not to oppose, than to make explicit concessions on behalf of the protected party.

Although the EHRC make the point that the OS's decisions should be based purely on the best interests of the protected party and not the child, they don't cite or comment on the OS's own guidance.  And since the EHRC's role is not to take sides in this particular case, they can't be asserting that the OS's guidance was not followed in this instance.  So it may be that they have seen, and tacitly affirm, the OS's guidance, but then it's not really clear then why they are raising this point.  Perhaps it's just a general reminder to the court.  I'm sure, in any event, it's a point the government will bring to the ECtHR's attention!

I don't think that's quite the end of the story though, as it might be possible to argue that sometimes there are best interests grounds for the OS to bring cases even though he regards them as unwinnable.  Perhaps to prevent vulnerable parties seeking support in their cases elsewhere.  It would be a pretty tough case to argue, and in any case would presumably be a matter to be taken up more appropriately in the Court of Protection.  And I certainly don't think you could argue that the sole determinant in the best interests test should be the desires of the protected party; there would be very little point having the OS at all if his instructions simply mirrored their views.  It seems to me that the only really arguable point in this case therefore relates to the mental capacity assessment itself - and whether a mechanism should have existed for RP to challenge the appointment of the OS in the first place.

It's a really tricky issue, and I still don't feel quite comfortable with where I've arrived at on this. I'd be interested in anyone else's views, particularly anyone with experience in the family courts in similar circumstances.  I do feel the points the EHRC raise regarding the availability of community support are valid, and these would indirectly impact upon the winnabiltiy of cases - but the OS cannot be expected to present a case whose winnability depends upon resources that are not in reality available.  Unity is right again when he says "any challenge to the Local Authority's assertion that they would be unable to provide RP with the care necessary to allow her to raise the child is a separate matter which necessarily would have required separate litigation."  This may mean that the ECtHR will consider that there were other avenues available domestically that were not taken up, and will therefore not consider this aspect of the matter.

Courts mustn't just 'rubber stamp' deprivation of liberty authorisations

An interesting, and mercifully short, Court of Protection case has just been published on Bailii.  In A v A Local Authority & Ors [2011] (I do wish they'd stop using the letter 'A' so much, it makes things very confusing when they're all against 'A Local Authority'), the court heard a case where an 85 year old man with dementia appealed against his detention in a care home, authorised under the deprivation of liberty safeguards.  The court heard compelling evidence from the local authority and his family that, although the man was very unhappy, 'he would dislike wherever he was' [13] and the placement was in his best interests.

In what seems to be an unusual step*, the judge acknowledged that although the assessments and the perspective of the family were in agreement that the detention was in A's best interests, he would direct a Court Visitor (funded by the Court of Protection) to visit A and produce a report on his capacity and best interests [17]. The judge commented:

Steven Neary in the headlines

The Court of Protection allowed the press in for Steven Neary's hearing on Tuesday.  The Independent made it their headline article, and claimed a victory for press freedoms.  I think it is very important that this case is reported - if only because it may raise awareness of problems with the deprivation of liberty safeguards. The Independent's 'victory' didn't, however, change the law - in fact all it required was for the Court of Protection to use its already existing discretionary power to permit the press to enter.  Having said that, the press still have to make a formal application to the court and a judge has to make a reasoned decision, so it's quite a resource-intensive process on all sides.

In my view there are lots of problems with the safeguards - too numerous to list them all here, but I'll discuss them in later posts no doubt.  The main problems highlighted by the case of Steven Neary are that the 'safeguards' themselves are not very effective when families have difficulty understanding or accessing their rights.  I've discussed this in more detail in a guest blog in Community Care magazine.  Not the least of Mark's problems was finding expert help from a solicitor - some told him (wrongly) he couldn't bring his case to court as he wasn't entitled to legal aid.  Even then, he rang over 50 before he found one with any expertise in the case.  In this BBC report Mark Neary says 'In the first seven months of Steven being away, I couldn't get any help at all', so he started up a Facebook group, went to the press, and support started to flood in.  But why wasn't there any help from the professionals?  You shouldn't have to go to the press, to Facebook, to access your legal rights.

There are still lots of unanswered questions about this case.  Here's a few that I will be looking out for in the May judgment, when there will be a full judicial inquiry into what happened:

• Did Hillingdon council act lawfully when they refused to let Steven return to his father's care?
• Was the deprivation of liberty authorisation issued when it should have been - or after they had already begun detaining Steven?
• Was the detention ever in Steven's 'best interests', and did they fully assess all the other options - most importantly, did they give serious consideration to whether Steven could have been cared for at home? Detention must be necessary to prevent harm, and it must be proportionate to the likelihood and severity of the harm.  The courts have previously indicated that family placements should be considered as a priority.
• It's also important to remember that, unlike under the Mental Health Act, under the deprivation of liberty safeguards people cannot be deprived of their liberty for reasons of 'public protection'.  The only reason a risk to the public might be relevant is if that risk might 'rebound' on the person themselves and affect their best interests.
• Do local authorities have a duty to provide additional resources (above and beyond those normally required by community care law) to support people to remain with their families so they are not deprived of their liberty?
• If detention wasn't in Steven's best interests, does this mean Hillingdon and the care provider, or just Hillingdon, have breached Steven's rights?  Can they seek compensation?
• Were Mark, the father's, Article 8 rights to family life breached?
• Did Hillingdon comply with all the procedural requirements of the safeguards - to keep Mark (as Steven's representative) informed of the process at all stages, to provide him with copies of assessments, to inform him of his right to support from 'Independent Mental Capacity Advocacy Services' and refer him if necessary?
• The dispute was rumbling on all summer, by all accounts, so why didn't Hillingdon refer the case to the Court of Protection as a matter of urgency?  Why did it have to wait for Mark to take the case there himself?
• The most important question of all: Why did Hillingdon do it? Why did they refuse to let Steven return to his home? How could there be such divergent opinions of his 'best interests' that a judge sent him home almost immediately in December, when the DoL was still authorised?  To the best of my knowledge, this is the first time this has ever happened since the DoLS came into force.  Was this a case of professional misjudgement - or did something else go wrong?

[Edited to add for clarity: Note, these are questions that the court might consider, not statements of what happened]

There are other, wider, questions this case raises.  There may be situations that are similar to Mark and Steven's where for one reason or another the safeguards cannot be used to get the case into court.  If someone is removed from the care of their family and placed in supported living (as in this case), unless the local authority themselves take the case to court it's very difficult for the family to.  This is because - for some entirely inexplicable reason - the Department of Health decided to ignore the advice of CSCI and others during consultation to extend the safeguards to cover 'supported living' as well as care homes.  Without the safeguards, the family have no right to request the supervisory body assess whether a deprivation of liberty is occurring.  Without authorisation under the safeguards, they will have no automatic right to advocacy and no automatic right to legal aid to take the case to court.

Even if someone is in a care home where the safeguards could  be applied, there is no guaranteeing that the supervisory body will agree that deprivation of liberty is occurring, even if the family object.  This may be more the case following yesterday's judgment on MEG & MIG (P & Q) in the Court of Appeal (discussed in my last post), where judges held that unless the person themselves was objecting they were probably not deprived of their liberty.  Where people have severe illness or disabilities, whether or not they are objecting can be quite subjective.  If supervisory bodies decide they aren't, once again the family would have no recourse to the safeguards.

Even if the supervisory body agree that someone is deprived of their liberty, it was suggested by the Mental Health Alliance that some were deliberately appointing family representatives who didn't oppose the placement.  This is really sneaky.  Unless you are the 'representative' you don't have the right to see the assessments, to be kept informed about the process, to advocacy, legal aid, etc etc.  Ironically enough, Mark Neary was 'lucky' (if you can call it that) - because Hillingdon both authorised Steven's detention, and made Mark the representative.

Holey and problematic as they are, without the safeguards, Mark Neary could have been pretty stuffed.  He wouldn't have been able to get free legal representation - nor advocacy services, and despite a petition and Facebook campaign with thousands of supporters, despite the best efforts of bloggers like Anna Raccoon, despite the support of local councillors and thousands of 'tweeters' behind him, it's not at all clear that Steven would have been home by Christmas.  Nor that you'd be reading about the case in your newspapers today.

(Added 3/3/2011: You can now find the court judgment allowing the press to report here)

[Edit 23/05/2011: I've written a more up to date summary of key issues I hope are reported well in the press here, it's also worth reading the comments underneath for a sense of other considerations from other perspectives]

The trouble with MEG

In so many ways, the case of MIG and MEG highlights problems with the Court of Protection and the deprivation of liberty safeguards.  In the first place, it’s a crucial case that significantly narrowed the parameters of what is considered to be a ‘deprivation of liberty’ in social care settings, and yet it’s not even been put on the Bailii website where lawyers find most judgments.  You can find it here, thanks to the excellent Mental Health Law Online website, but only because lawyers involved in the case have made efforts to get it there.  Given how much rests on these cases, given how practitioners in social care are crying out for more clarity about what a ‘deprivation of liberty’ is, why isn’t the Court of Protection routinely making these cases available?  I still speak to practitioners who haven’t heard of this case, but rest assured that care providers facing legal challenges are relying upon it to argue that the deprivation of liberty safeguards don’t apply to them.  Before I go on to discuss the ruling itself, I should say that the case was heard in the Court of Appeal in October 2010.  I know this, because it’s briefly mentioned in the excellent 39 Essex Street public law newsletter.  What we don’t know, even though the case is really important and it was heard three months ago, is the outcome.  In fairness to those involved, these cases can drag on if more evidence is needed, and it doesn’t help that the Court of Protection is woefully underfunded for the amount of cases it hears.  But we do know that a great deal hangs on the outcome; how the Court of Appeal rule in the case of MEG and MIG could significantly change the landscape of the deprivation of liberty safeguards.

The case of MEG and MIG concerned two sisters who both have moderate to severe learning disabilities, and who were removed from the care of their families due to ‘violence, sexual abuse of a sibling, neglect, chaos, and where her mother put her own needs and wants before her children.’ [208, 214].  MIG was 17, and lives with her foster carer, who she calls Mummy.  This is the kind of care arrangement HL in the Bournewood case enjoyed when he lived with Mr and Mrs E.  The legal and ethical issues may well be different in a foster placement, so I’m not going to talk about MIG in this post (although I will post on family and foster care another time).  MEG was 17, and lives in a care home.  It’s important to note that the deprivation of liberty safeguards could not apply to MEG, as she was not yet 18 and her care home was not ‘registered for the purposes of Schedule A1 of the Act’ [168].  This means that if she were found to be deprived of her liberty, the care provider (which is presumably a domiciliary care provider, or a children’s home, if it is not registered for the Act) would have to make a costly and lengthy application to the court for authorisation, and would have to seek periodic reviews.  Unsurprisingly, this is an eventuality that most care providers are keen to avoid if possible.  It’s one of the many inexplicable ‘holes in the DoLS’, that it doesn’t apply to many care settings where a person can be deprived of their liberty.  In the case Re RK the judge heard evidence that if children in care homes could be regarded as deprived of their liberty, the resource implications for local authorities – including compensation claims for unlawful detention – could be enormous [6-13].  Judges are usually careful to stress that concern for resources cannot influence their decision on whether someone is deprived of their liberty, but evidently local authority lawyers think it must have some sway or they wouldn’t bother to present this aspect of their cases.

So, the feature of the present case I am interested in is how the judge came to the conclusion that MEG was not deprived of her liberty.  MEG lives in a care home.  She has one-on-one, and sometimes two-to-one support [215].  For people who have not worked in care, it’s hard to convey how intense it can be working with someone one-to-one or two-to-one.  It means, in essence, that they are never left alone and are subject to ‘continuous supervision and control’.  Note the phrasing.  There are people with physical disabilities who require the constant presence of support workers to help them execute actions in their everyday lives – but they don’t require ‘continuous supervision’ exercised so as to ‘control’ them.  It seems as if the evidence heard by the court regarding physical restraint is unclear [217] – it is not referred to in the care plan, but it is mentioned in the context of controlling aggressive episodes.  Later on [233] the judge says that ‘Neither is restrained save for immediate purpose of ensuring safety, and, in the case of MEG, for her immediate protection and that of others when she has an outburst.’  This is a peculiar comment, since under s6 Mental Capacity Act restraint may only be used in these circumstances.  What the judge appears to be saying is that neither are restrained unlawfully; but surely, if restraint is relevant to whether a deprivation of liberty is occurring and needs authorisation, it must mean lawful restraint?

MEG is also prescribed Risperidone, a sedating antipsychotic.  Certainly in dementia care, Risperidone is widely regarded as a form of chemical restraint (see this report, for instance).  MEG is prescribed it to ‘help with anxiety’ [216].  ‘Anxiety’ can refer to a wide range of states.  In care homes I have worked in, people were given PRN sedatives for ‘anxiety’ when their behaviour became unmanageable.  It was never referred to as restraining them; the pathologisation of behaviours allows us to view what is in effect often an act of coercive control as ‘treatment’.  I’m not arguing that MEG shouldn’t be on Risperidone, but I think it is unfortunate that ‘No oral evidence was given about this medication and it uses at the hearing’ [216].  The judge finds the medication does not play a part in contributing to potential deprivation of liberty, because she ‘is not medicated to prevent her from leaving’ [217]. It would be highly unusual for medicine to be explicitly administered in order to prevent someone leaving a facility.  I don’t think many doctors would prescribe it for that purpose; but that could be its effect, all the same.  Even if it did not ‘prevent someone leaving’, it is a further manifestation of the 'complete and effective control' exercised over MEG’s body and mind by those who care for her.

The judge also considers whether MEG is ‘free to leave’.  She finds that if she ran away, she would be restrained and brought back [233], but elsewhere states:

Freedom to leave has to be assessed against the background that neither wants to leave their respective homes, there is no alternative home save that of their mother where neither wishes to live, and neither appears to have the capacity to conceptualise any alternative unfamiliar environment. [255]

This is a very interesting statement of a crucial issue regarding whether a person is deprived of their liberty or not.  In the view of Mrs Justice Parker, a person may not be considered to be deprived of their liberty if they have nowhere else to go, or show no desire to leave.  On the first point, whether there is an ‘alternative home’, it seems to me this cannot count against whether a deprivation of liberty is occurring.  The Convention permits, for instance for detention of vagrants (Article 5(1)(e)); they are vagrants precisely because they have nowhere else to go.  In fact, in one famous vagrancy case a lack of viable alternative residences was regarded to invalidate consent to detention, because consent could be regarded as ‘coerced’ by circumstances ("extralegal coercion").  It would also lead to the rather odd conclusion that had HL been informally detained at Bournewood, but for some reason his carers could not take him back, he would have been considered more ‘free’ than when they were fighting to get him home.

This leads me to the question of compliance.  The underlying message of the Bournewood judgment is that detention of adults who lack the mental capacity to consent to confinement is a deprivation of liberty even if they are compliant.  In a hospital setting, in fact, the 'rule' is that compliant but incapacitated patients who would be prevented from leaving if they attempted it have to be detained under the safeguards because they are ineligible for the Mental Health Act - just like HL.  It seems that in this judgment (and others) the relevance of compliance to whether a ‘deprivation of liberty’ has occurred in a care home is splintering away from the criteria applied in hospitals.  It is almost as if compliance is being treated as consent to detention, which would be illegitimate where people lack capacity.  There are arguments that noncompliance increases the intensity of the restrictions, and thus tips the balance into deprivation of liberty; but I’ve yet to see a published case in a care home where someone was compliant and content and was regarded as deprived of their liberty (suggestions in comments very welcome on this).  We are in danger of viewing compliance not as an intensity ‘factor’ but as determinative of the issue.

This case was discussed at a conference I attended recently, where the excellent Neil Allen argued the key reason why MEG was not considered to be deprived of her liberty was that the care home was her home.  This seems like an attempt to bring her situation in line with other cases where people subject to restrictive care, including ‘continuous supervision and control’, are not regarded as deprived of their liberty because it occurs in the family home. The family home issues aside, to my mind there are significant problems with arguing that the care home constitutes a ‘home’ for MEG.  Many of the features that we would naturally associate with home are simply not present in care homes.  For me, calling a place my ‘home’ is very closely bound up with my ability to exercise my autonomy and control my surroundings.  I choose where I live.  I choose who comes into my home, and retain the right to eject them from it if I desire to.  I choose who I live with.  I choose how to occupy myself within my home - there are no 'out of bounds' spaces, and I choose how to dispose of the resources within it.  A loss of control over one’s surroundings, over who one lives with, over one’s personal privacy, is in many ways what we dread about admission to a care facility.  It is true that MEG is likely to be subject to a similar level of control wherever she lives.  To my mind, this calls into question whether – unless the Reach Standards are carefully applied – any facility caring for people who are subject to this level of control can be regarded as a ‘home’.  Indeed, in the case G v E it was argued that because he did not have ‘exclusive occupation’ of the property, because care staff came and went on their choosing and not his, it was a ‘sham’ tenancy.  This issue was not pursued for other reasons, but it is likely to come up again in court.

One of the most highly criticised aspects of the judgment in this case, is that the judge held that the 'reasons for' the restrictions were relevant to whether they contributed to a deprivation of liberty.  The judge was heavily influenced by the ‘kettling’ case, Austin, where the House of Lords controversially held that protestors ‘kettled’ for hours by the police were not deprived of their liberty because the police did not intend to detain them.  The Austin case has been really heavily criticised for narrowing the scope of Article 5 of the European Convention on Human Rights; it is going to be taken to the European Court of Human Rights.  If the ruling is condemned, as many believe it will be, then cases like that of MEG may be unsound.  Barrister Paul Bowen and solicitor Ben Troke have both pointed out that this line of argument makes it very hard to see when the safeguards could, logically, ever be applied.  A key feature of the Mental Capacity Act is that restrictions on liberty must always be in someone's best interests, and a proportionate response to risks.  A key criterion of the deprivation of liberty safeguards is that deprivation of liberty may only be authorised when it is in a person’s best interests.  If parliament had felt that restrictions ‘in a person’s best interests’ didn’t count towards deprivation of liberty, it is hard to see why they would have drafted the legislation the way they did.  Lord Justice Munby put it well in the case JE v DE when he said:

The argument, if taken to its logical conclusion, would seem to lead to the absurd conclusion that a lunatic locked up indefinitely for his own good is not being deprived of his liberty.

The overall tenor of the judgment is that restrictions in the name of benevolent paternalism cannot amount to a deprivation of liberty.  To my mind that goes against the entire grain of the deprivation of liberty safeguards, and it goes against the grain of my instincts as well, having worked in plenty of places similar to where MEG is cared for.  Mrs Justice Parker enthusiastically cites Lord Hoffman’s dissenting judgment in a control order case, where he states:

Why is deprivation of liberty regarded as so quintessential a human right that it trumps even the interests of national security? In my opinion, because it amounts to a complete deprivation of human autonomy and dignity. The prisoner has no freedom of choice about anything. He cannot leave the place to which he has been assigned. He may eat only when and what his gaoler permits. The only human beings whom he may see or speak to are his gaolers and those whom they allow to visit. He is entirely subject to the will of others.

Aside from the legal quibble that it is rather bad form to rely upon a dissenting judgment that the majority of the house disagreed with (and not to even qualify it by acknowledging it was a dissenting judgment when citing it), the choice of quote seems to me rather peculiar.  The situation of MEG does share more than a passing resemblance to Lord Hoffman’s prisoner.  Do you think MEG chooses what and when and where she eats with the same autonomy as you?  Do you think she could decide to eat twelve mars bars at midnight on a picnic if she felt like it?  Could she even choose to eat a different meal to what’s ‘on the menu’ that night?  Or to eat later, or earlier, than staff decided?  And there are restrictions on who MEG can see; not only the restrictions imposed by any care home on ‘reasonable’ times for visits, but the court has previously placed restrictions on contact with her family – no doubt with good reason.  How many care homes would just let any person come in on MEG’s invitation, regardless of what they look like or whether they know them?  Because she is subject to ‘continuous supervision and control’, every decision that MEG makes is subject to potential overrule by those who care for her.  This is what is known in Republican philosophy as a ‘state of domination’; regardless of how often, in practice, one is interfered with, the ever-present possibility of interference is regarded as detrimental to liberty.

The point is, that for better or worse, MEG is ‘entirely subject to the will of others’.  This may be no bad thing if that will is exercised to protect her, and doubtless those caring for her strive to do so.  But the point about Article 5 is not that it outlaws deprivation of liberty in all circumstances, but that it recognises the inherent dangers within it and seeks to minimise them.  Dangers like being excessively vulnerable to the arbitrary, sometimes capricious, will of other persons.  The point of the safeguards is to impose external scrutiny, to ensure that coercion is kept to a minimum, that it never becomes abusive as it so easily could.  With dwindling visitation from CQC, with care staff under increasing pressure to deliver more with less, surely it seems appropriate that someone in MEG’s position – who is highly vulnerable – should have access to additional safeguards to ensure that her vulnerability is not taken advantage of?  And even if it never is, even if her care is executed to ‘least restrictive’ ‘best interests’ Mental Capacity Act perfection, it still seems uncomfortable to deny that she is not, in some way, less at liberty than you or I.  I have heard places like those that care for MEG referred to as ‘bittersweet prisons’ by those who have been confined in one.  This post by autistic blogger Amanda Baggs sets out eloquently what is wrong with the view that being subject to continuous control, even in one’s own best interests, is not experienced as a loss of liberty:

I have a recurring nightmare. I am in a beautiful building with a hushed, playful atmosphere. I have been there as long as I can remember. Everything I could possibly need is there. There are no locks on the doors. People follow me everywhere, but just out of sight, to give me the illusion of freedom. They want only the best for me. I can go outside and play in the woods, and I climb trees. And they treat me like a child. Everything is controlled perfectly. Nothing seems to be wrong, but nothing seems to be really right, either. Everyone is very sweet and very kind and very nice and very forgiving, but there is no freedom. Anywhere. This makes the apparent happiness of the place empty, shallow, and false. That, to me, is the essence of the intangible horrors I fear. Only when I wake up from this nightmare do I realize it’s a nightmare, and that in turn makes it all the more frightening.

It will be interesting to see what the Court of Appeal think.  The cynic in me wonders whether they won’t concur with this judgment.  The problem is, in many ways it suits a lot of people rather well.  No care provider wants to think of themselves as ‘depriving someone of their liberty’ (perhaps they should have stuck with 'Protective Care'?).  If she is found to be deprived of her liberty it will have major resource implications not only for care providers who have seek authorisation, but also for local authorities in similar cases who will have to apply the safeguards.  Potentially it will be a drain on the resources of the courts themselves, not to mention the Legal Services Commission.  Not only that, but apparently whether the safeguards are extended to include 'supported living' hinges on the outcome of this case.  It could be a very comfortable ruling for everyone; let’s hope it’s that comfortable for MEG and those others like her.

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!