3. DoLS v Guardianship - Summary and discussion

Update (December 2012): These posts are fairly out of date and contain some inaccuracies.  I've given them an overhaul, and you can read and download and updated and corrected version at DoLS v Guardianship - Redux.

Several knowledgeable bodies and individuals have suggested that guardianship under the Mental Health Act 1983 (MHA) might be a preferable framework for community based detention than the deprivation of liberty safeguards (DoLS). I have compared the two frameworks on a range of issues in two previous posts (Part 1, and Part 2).  For those of you who prefer a printer-friendly word document, and would rather read this in one piece, here's a pdf version of all three documents that I've prepared (very kindly hosted by Celtic Knot Solicitors, so you don't have to create a Google Acount to read it).  And, two days after writing this post here's a brand new DoLS and guardianship case, with a very interesting comment from Jackson J:

It is a truly unhappy state of affairs that the law governing the fundamental rights and welfare of incapacitated people should be so complex. As this case shows, its intricacies challenge the understanding of professionals working in the field and are completely inaccessible to those for whose benefit the legislation has been devised, including those with a relatively high level of understanding, such as Mr C. This judgment, while keeping citation from statute, regulation, codes of practice and reported cases to the necessary minimum, still remains more focused on technical issues than I would like

If you’ve skipped to the end of these three posts, here’s what you’ve missed in a nutshell: 

2. DoLS v Guardianship: Appeal and review mechanisms

This is the second post in a series of three comparing guardianship under the Mental Health Act 1983 (MHA) with the Mental Capacity Act 2005 deprivation of liberty safeguards (DoLS).  The first post explains why some people have argued that guardianship would offer better safeguards than the DoLS against arbitrary detention.  In that post I explore the criteria for entry into each regimes, the coercive powers each regime affords public bodies, and the role they give to families.  In this, the second post, I will look in detail at the appeal mechanisms, and consider whether they are compliant with Article 5(4) of the European Convention on Human Rights.  If you are short of time, I strongly recommend you skip to the third and final post, which offers a summary and some thoughts on why both regimes for community based detention will have significant difficulties in practice.

1. DoLS v Guardianship: Applications, criteria and powers

Having written my thank you card to blog readers, I thought I’d kick of 2012 with a long-promised post on the deprivation of liberty safeguards (DoLS) and Guardianship. In true Small Places style, this will be not be a short one... in fact, it’s such a monster that I’ve decided to break things up into three separate posts. The first (this one) is on the criteria and powers of DoLS and guardianship; the second is on the appeal mechanism.  These are very long, and if you're pressed for time I recommend you skip to the third and final post which provides a summary and a general discussion of the issues.  Even so, I have a horrible feeling this might be one of those posts I spend hours on, and about 3 geeks like me actually read... Still, all fodder for the thesis, and this way I can kid myself I’m working.  I'm very aware that I'm much more familiar with DoLS than I am guardianship, so please alert me to any glaring errors, and I'd also welcome any guest posts or comments on people's views on these issues.

The question: Would guardianship have been better than the DoLS? 

Post-Neary spike in deprivation of liberty cases in the Court of Protection

The Court of Protection have just sent me some updated figures on deprivation of liberty cases.  The figures are quarterly data showing the number of appeals against detention mounted under s21a Mental Capacity Act  - so that's appeals against detentions authorised under the deprivation of liberty safeguards - and also deprivation of liberty cases arriving in the Court of Protection by other means.  Some of these cases will involve people detained under the deprivation of liberty safeguards, perhaps where the supervisory body has sought a best interests declaration from the court under s15 MCA, and others will be cases where authorisation to detain has to be sought directly from the court because the DoLS don't apply.

Can supervisory bodies appeal against their own decisions?!

It would be a topsy turvy world, wouldn't it, if public authorities could start appealing to the court against decisions they themselves had made?  And yet, we should probably learn to expect anything with the deprivation of liberty safeguards (DoLS).

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.

Quick update - legal aid for s21A appeals

A while back I wrote a post about the low numbers of s21A appeals under the deprivation of liberty safeguards (DoLS).  I noted that according to data the Court of Protection shared with me, 8 appeals were by litigants in person.  I'm afraid I forget who it was, but someone suggested this might be because the Legal Services Commission were refusing some would-be claimants legal aid on a merits test, perhaps on the basis that their appeal against detention was unlikely to succeed.  I looked into this further by writing to the LSC, who confirmed today that between April 2009 and December 2010 there were 67 requests for legal aid for s21A appeals, none of which were refused.  So it seems the LSC, like the Court of Protection, take the view that all appeals against detention should be heard and treated seriously - and the court should never just 'rubber stamp' an authorisation under the DoLS.  It is reassuring that people are not prevented from having the Court of Protection review their detention due to unavailability of public funding.

This does, however, beg the question as to why almost a third of all s21A appeals by December 2010 were litigants in person.  It would be interesting to know whether these litigants were appointed as representatives of the detainee.  In their first report into the DoLS the Mental Health Alliance had expressed concerns that some supervisory bodies were deliberately avoiding appointing people who opposed a detention as representatives, purely on the basis of their opposition.  Thus it might be that some of these people have sought to oppose detention through the s21A appeal as a litigant in person.  There are regulations on the appointment and selection of relevant person's representatives under the DoLS, here.  One other alternative explanation is that people are struggling to find legal representation due to a shortage of specialist solicitors, or a lack of awareness of how to find them.

It would be useful if the Ministry of Justice could collect data on who is making an application to the Court of Protection under s21A, and the outcome of that application (variation, termination or continuance of the authorisation).

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.

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: