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Now that we have had a few weeks to digest some of the implications of a recent landmark judgement by the Supreme Court about what constitutes a Deprivation of Liberty, I want to explore in a bit more detail the implications of this case. I mentioned the ruling in this case in a previous blog ‘Law in Action’ but we have since had responses to the judgement from the Care Quality Commission, the Department of Health and the Association of Directors of Adult Social Services and I want to reflect on these. The case in question is that of P v Chester and Cheshire West Council which has been through a number of courts in the last few years before receiving a final ruling in the highest court of the land.
Depriving someone of their liberty
Firstly, a quick recap about what constitutes a Deprivation of Liberty. The Mental Capacity Act 2005 in England and Wales, allows for decisions to be made in the best interest of someone who lacks the mental capacity to make those decisions themselves. In the context of a care home those could be very simple decisions about what to wear on a particular day. In making those best interest decisions the law also allows us to restrain someone if the restraint is undertaken in the person’s best interest if it will prevent harm, and the restraint is proportionate to the likelihood of harm being caused. Stopping a frail resident handling a kettle of boiling water might be an example. However, and this gets to the crux of the issue, that permission to restrain, is not unlimited. If the level of the restraint, or restriction on the person’s free movement, becomes so frequent and regular that it constitutes a deprivation of the person’s liberty then that that is not allowed by the Mental Capacity Act. In fact this would be in contravention of Article 5 of the Human Rights Act 1998 (right to liberty). Of course a deprivation of liberty might be necessary. What the Human Rights Act would say is not that you can never deprive someone of their liberty, but only if there was a procedure prescribed by law that allows for this. In England and Wales this procedure was written as a later amendment to the Mental Capacity Act and this is the Deprivation of Liberty Safeguards, or DOLS for short. I’ll describe the situation in Scotland further on. To allow for a lawful deprivation of someone’s liberty an application needs to be made by the care home for the deprivation to become authorised.
How does a care home decide whether they might be depriving someone of their liberty? Well that’s difficult because the distinction between restrictions on liberty in a care home, perhaps putting a keypad lock on the kitchen door, and a deprivation of liberty, such as not letting a family member take the resident out, is sometimes difficult to define, there is no clear distinction. The advice would be if a care home is unsure, they should make an application to the supervisory body for an authorisation, or at least seek further advice.
Constant supervision and control
Now onto the situation we find ourselves in following the Cheshire West case. This was no ordinary case, and in fact was not even in a care home. It was in a staffed tenancy. Just to make things really complicated the DOLS regulations only apply in care homes and hospitals, not a person’s own home or supported living situation! If a Deprivation of Liberty is likely to be caused in these situations such as in P, the application has to be made to the Court of Protection, which is the Court that deals with complex mental capacity issues. However I’m sure what Lady Justice Hale said in the Supreme Court will be adopted as our new understanding of what constitutes a Deprivation of Liberty for everyone who lacks mental capacity. P was a 39 year old man with severe learning disabilities and difficult behaviour. We know him as P to protect his anonymity. He could not do anything or go anywhere without support of staff. Physical restraint was used regularly to protect him from harm, such as putting him in a ‘body suit’. The Supreme Court’s view of his living situation was “If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person.”
Responses to the judgement
Let’s look at some of the advice being offered in the light of this judgement:
- First the Care Quality Commission. They’ve tried to distil Lady Justice Hale’s ruling to a 2 part test following her comments. Is the person under continuous supervision and control? That’s not as straightforward a test as you think because even though the CQC say the oversight must be continuous, does that mean they are constantly being watched over by a member of staff? The second part of the test is ‘is the person free to leave?’. The difficulty of this test is that most residents will not be trying to leave the home. The CQC says the question should be of staff, it the person tried to leave the home would you stop them (or if their family came to take them home). If the answer to both of those is ‘yes’ then the person is deprived of their liberty, and the home has two choices, either try and remove some of these restrictions so the person is no longer deprived of their liberty, or apply for an authorisation.
- Now let’s look at the Department of Health advice. They suggest that care providers should be reviewing care and treatment plans for all their residents to see if the restrictions placed on the residents might constitute a Deprivation of Liberty using the new ‘definition’ about ‘not free to leave’ and ‘under constant supervision and control’.
- Finally the Association of Directors of Social Services advice is focussed on local authority staff, but included in that was that local authorities should be briefing partner agency staff such as care home, hospital and supported living staff, about the implications of the judgement.
The law in Scotland
Finally, does all of this concern people in Scotland? Well, yes, because the issue is about contravention of someone’s Human Rights. The relevant law here is the Adults with Incapacity Act 2000 which allows in certain circumstances for a guardian to be appointed for someone who lacks mental capacity. A guardianship order can carry a great deal of power that can include the power to require someone who lacks capacity to live in a certain place and receive certain types of care which may amount to deprivation of liberty, such as the power to restrain someone, and keep them under constant supervision. In Scotland there is not the same piece of specific law as the DOLS but there is a consultation exercise being under taken to see if this is needed, and the implications of Cheshire West will feature in these discussions. We’ll have to wait and see for further guidance on this complex issue, north and south of the border later in the year.