Deprivation of liberty – the long and winding road

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.

Moving forward

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.

In early June this year, 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 might be extended.

Our Kate Jackson, Health and Welfare Court of Protection specialist at Anthony Collins, in attendance at the Royal Courts of Justice, advised, “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”.

Local Authority Concerns

Local authorities quickly braced themselves for an estimated 10 fold increase in the number of DOLS applications over the following 12 months. On 30 July 2014, in a joint letter to the Secretary of State, David Sparks, Chair of the LGA and David Pearson, President of the Association of Directors of Adult Social Services (ADASS) referred to a survey revealing that from the projected figure for 2013/2014 of 13,719, applications for DOLS authorisations was due to surge to 138,000 in 2014/2015, then rising to 176,000 in 2015/2016.

The Minister was urged to ensure there would be adequate funding to recruit and train the additional staff needed to ensure that the rights and needs of some of the most vulnerable individuals in our society are properly met.

ADASS has also worked with the Department of Health to establish a taskforce to explore the issues arising from this judgment, specifically the impact on:

• Workforce
• Process issues
• Finance

The long view

Even before this judgment was published, the DOLS provisions were criticised for being overly complex and excessively bureaucratic. In March 2014, a House of Lords select committee conducting a post-legislative scrutiny of the Mental Capacity Act 2005 declared DOLS not “fit for purpose” and called for them to be replaced, and also recommended that the new system should extend to cover people in supported living arrangements, not just hospitals and care homes.

As a result, the Law Commission has recently begun to review the relevant legislation and provisions and expect to publish their report, with recommendations for reform and a draft Bill, in summer 2017.

For more information

Please contact Sheree Green on sheree.green@anthonycollins.com or 0121 212 7495.