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Free to leave?
Are you free to leave your home? It might seem a strange question, but it is a question health and social care staff are having to think about in relation to the people they work with ever since we received the judgement of the Supreme Court in the case of P v Cheshire West and Chester just over a year ago. The judgement provided a new test for what constitutes a deprivation of liberty for people who lack the mental capacity to decide where is best for them to live. The implications of this judgement in terms of numbers of applications to get a deprivation of liberty authorised has been huge, whether using the Deprivation of Liberty Safeguards (DOLS) for people in care homes and hospitals, or by applying to the Court of Protection for people living in supported living situations.
The acid test
For those who are not familiar with the background to all of this we need to jump back in history, well certainly to the 1950s and the European Convention on Human Rights, and in particular Article 5 which protects the right to liberty. It states that: ‘No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law’. Those cases include ‘the lawful detention of persons… of unsound mind.’ This right to liberty was the subject of the landmark case of HL v United Kingdom in the European Court of Human Rights in 2004. Here HL was found to have been deprived of his liberty in a hospital managed by the Bournewood Community and Mental Health NHS Trust. In HLs case there had not been any process in law to allow for this. The Government had to respond to this judgement – hence the Deprivation of Liberty Safeguards arrangements which created a proper legal process.
One of the most difficult issues with these safeguards is trying to decide what a deprivation of liberty is. Go to the Code of Practice and it says, ‘There is no simple definition of deprivation of liberty.’(!) It is not surprising that the DOLS have been the subject lots of debate in care homes and courts ever since. So back to the present day – one year on from perhaps the most significant court judgement we have had about deprivation of liberty, where Lady Justice Hale attempted a definition in what she called ‘the acid test’. The test says that someone is deprived of their liberty where they are ‘under continuous supervision and control and not free to leave.’ So that’s clear then, or is it? I want to look at one part of this definition – not being free to leave - and see whether it has cleared anything up at all for care providers, service users or their families.
Making it lawful
First we need to refer to what the law says – if we are caring for someone who lacks the mental capacity to decide on their own living arrangements, we cannot deprive them of their liberty unless we seek proper authorisation for this, with reference to section 4a of the Mental Capacity Act 2005. So, if we think someone we are involved in caring for is ‘under continuous supervision and control and not free to leave’ then we need to do something about it! Either review the person’s care plan so they are not deprived of their liberty, or get it authorised.
Freedom to leave
So what does this acid test mean? What is being free to leave? Does that mean free to leave the care home where you reside and take up residence somewhere else, or does it mean free to leave the care home building at any time to go out for a walk into town, or wherever? Or does it mean both? The judgement does not spell that out. However it does make reference to an earlier judgement by Justice Munby in JE v DE 2007 where he said ‘when I refer to leaving the …home, I do not mean leaving for the purpose of some trip or outing ….I mean leaving in the sense of removing himself permanently in order to live where and with whom he chooses’. There is some very recent guidance published by the Law Society where they also say it is unclear how freedom to leave should be interpreted. Find it here.
Now in the Supreme Court judgement of the Cheshire West and Chester case, there was a crucial new dimension thrown in. The judgment said that there are a number of factors that we might previously have considered as relevant to deciding whether someone was deprived of their liberty, which Justice Hale said are not relevant. So, if someone is not trying to leave, or is seemingly content with their placement, they may still be deprived of their liberty. If the reasons for placing the person in the care home were very sound, and family and professionals agreed it was the best place for them, they may still be deprived of their liberty. The way to think about whether someone is free to leave is to ask yourself, if the person tried to leave (however unlikely that was) would you try and prevent them?
Now whilst we might have a short ‘acid test’, it does raise a lot more doubts. For example, one scenario currently under debate is the case of an unconscious person in a hospital bed – they lack capacity are not free to leave. Does that mean that hospital staff should be making an application for a Deprivation of Liberty to be authorised?
So we are still going need to some clarification on what constitutes a deprivation of liberty. The Law Commission have begun a consultation on the Deprivation of Liberty Safeguards, following on from the ‘acid test’, and an earlier House of Lords committee report which was critical of how DOLS was operating. However we won’t get a final report from the Commission on this until 2017, with possible legislation after that. In fact, we may never get a complete and unarguable definition of a deprivation of liberty, but let’s hope we eventually get a clearer framework to work with.
Meanwhile, what can you do to give evidence that you are complying with the law?
- Regularly review the care plans of people in your care and, if possible, try to reduce the restrictions on someone’s liberty
- Ensure that for people who lack mental capacity, care arrangements are in the person’s best interests
If you think someone in your care is being deprived of their liberty, and it’s in their best interests, then seek an authorisation, or at least seek further advice.
David Beckingham – QCS Expert Mental Health Contributor