The use of large up-front fees and disproportionate deposits has already resulted in significant cost consequences for one care provider.
The Supreme Court considered the circumstances of P and Q (previously known as MIG and MEG), and P.
MIG and MEG were young women, sisters with learning difficulties, who had been taken into local authority care. MIG lived with her foster mother, to whom she was devoted. She had never tried to leave home, but it was understood that if she did, she would be restrained. MEG lived in a small care home for young adults with complex needs. She received tranquillising medication, but showed no desire to go out on her own. She had an active social life.
P had cerebral palsy and Down’s syndrome and lived in a supported living placement with other residents.
The Court had to decide whether the circumstances of their care meant that they were being deprived of their liberty (for the purposes of Article 5 European Convention on Human Rights). If they were, they were entitled to procedural safeguards, and the deprivation had to be authorised, either by a court or by procedures known as the deprivation of liberty safeguards, (DOLS). Otherwise there was no independent scrutiny or check on whether the arrangements were in the best interests of the mentally incapacitated person.
The Court decided that relevant factors did not include:
- the “relative normality” of the living conditions,
- the person’s apparent compliance with the arrangements, or
- the fact that the arrangements are in the person’s best interests.
Instead, the starting point is the “concrete situation of the individual.”
The acid test
Is the person:
- under continuous supervision and control by others, and
- not free to leave?
If the answer to both points is “Yes”, then the person is deprived of their liberty.
There was no criticism of the living arrangements of MIG, MEG or P; they were “in their best interests”. However, in view of their extreme vulnerability, in deciding whether those arrangements might amount to a deprivation of their liberty, one must err on the side of caution. In these cases, the Court held that each of MIG, MEG and P were being deprived of their liberty.
Key points for care providers
- Apply the acid test to determine whether the arrangements in place for the care of individuals (who lack the capacity to agree to those arrangements) may constitute a deprivation of their liberty.
- DOLS applies to residential or nursing home settings. Other arrangements such as supported living, extra care and shared lives schemes requires specific authorisation by order made by the Court of Protection.
What action should care providers take?
- ensure key staff understand the acid test and can identify a deprivation of liberty.
- have a procedure in place for recording and reporting any potential deprivation of liberty.
- review the care plans and living arrangements of individuals, (who lack capacity to make their own decisions regarding these arrangements), to identify where their circumstances might amount to a deprivation of liberty. If in doubt, err on the side of caution.
- work with the local authority to determine whether adjustments can be made to the care plan and arrangements, to take the “regime” outside the acid test.
- where a deprivation of liberty is identified, for residential and nursing homes, apply to the local authority for a Standard Authorisation (and for other settings bring any potential deprivation of liberty to the urgent attention of the person’s appropriate local authority, who should then take the lead in making any Court application).
There will be argument over the meaning of “continuous supervision and control” and “not free to leave” in individual cases.
The Supreme Court ruling only examined living arrangements made with “state involvement”, where the local authority had made or funded the arrangements. Private care arrangements made by families, without any state involvement, where the circumstances may amount to a deprivation of liberty were not considered.
It may be argued that the state still has positive human rights obligations towards people in these circumstances, and local authorities may consider whether to intervene in specific private arrangements.
Local authorities are bracing themselves for an estimated 10 fold increase in the number of Deprivation of Liberty Safeguards over the next 12 months. In early June, Mr Justice Munby considered how the deprivation of liberty authorisation process might be streamlined to cope with this surge in cases, whilst still complying with the requirements of the European Convention on Human Rights. The hearing at the Royal Courts of Justice considered evidence from lawyers representing individuals, local authorities, the government, NHS commissioners, the Law Society and other parties.
The important aspects under consideration included the potential for ‘bulk’ applications, the delegation of some decision making to court officials, when it might be appropriate for an application to be considered without an oral hearing and whether the timescales for completing DOLS assessments can be extended.
Our Kate Jackson, Health and Welfare Court of Protection specialist at Anthony Collins, in attendance at the Royal Courts of Justice, advises, “whilst the clarification of who is deprived of their liberty is welcomed, providing important safeguards for the most vulnerable in our society, it is not without its problems. It is clear that there will be a significant shortfall in resources, both financially and in personnel, which is already having an impact in terms of delay in obtaining the appropriate authority to deprive a person of their liberty. It is hoped that a pragmatic and efficient way forward can be agreed without watering down the safeguards which are necessary to ensure the rights and welfare of these individuals are promoted and protected.”
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