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Not going home – in whose best interests is that?
The Mental Capacity Act Deprivation of Liberty safeguards have been operational since April 2009, and we have not heard too much about their use, until now that is. The recent Court of Protection judgement in the case of Stephen Neary, a young man with autism, is going to make those concerned with decision making think very carefully about how these safeguards are used. Unusually for a Court of Protection hearing, this case was heard in front of newspaper journalists.
Firstly, some brief history about how the Deprivation of Liberty safeguards (DOLS for short) came about. The Bournewood Judgement in the European Court of Human Rights in 2004 found that Bournewood Hospital had deprived a young man with autism, known as HL, of his liberty. He had been admitted to hospital on an informal basis. The restrictions placed on him in hospital meant he was effectively deprived of his liberty in contravention of the European Convention on Human Rights, and there was no statutory legal framework put in place to protect his rights. The Bournewood judgement meant the Government had to act to prevent such unlawfulness.
Amendments were made to the Mental Capacity Act 2005 to add more safeguards to protect people who do not have the mental capacity to agree or otherwise about their care in a home or in hospital. These are the Deprivation of Liberty Safeguards. The law around care and treatment for people who lack mental capacity is complex. As well as the Mental Capacity Act (and DOLS) we have the recently amended Mental Health Act. It is important to note that the Deprivation of Liberty safeguards can only be used where someone is not or cannot be detained under the Mental Health Act.
So how do the safeguards work?
The QCS Management System includes guidance (QCS Policy CR10) on what a deprivation of liberty is, and what to do when someone in care might need to be deprived of their liberty. Very briefly, how DOLS works is that the managing authority (that is the care home , nursing home or hospital, whether private or public) apply to the supervisory body to authorise a deprivation of liberty. The supervisory body is either the NHS Primary Care Trust where the person is in a hospital or nursing home or the Local Authority where the person is in a residential home. The supervisory body commission a number of different assessments, to decide whether the person is being deprived of their liberty and if it is in their best interests, and on this basis then decide to authorise a DOL or not. One of the key assessments is the Best Interests Assessment, completed by a worker who has particular professional qualifications, skills, experience, and training (1). These assessments came under particular scrutiny in the Steven Neary judgement.
Steven Neary’s story
Let us look at the Stephen Neary case. Justice Peter Jackson’s introduction to his full judgement sums up what the case was all about. “A local authority accepted a young man with disabilities into respite care for a few days at the request of his father and then kept him there for a year. The question is whether this was lawful?” (2) The final judgement in this case was that it was not.
Steven is a young man with autism and learning disability - normally living at home with his father, Mark Neary, with a great deal of support from Hillingdon Borough Council’s adult care services. When just after Christmas 2009 Mark Neary was exhausted and needing a break, Steven was accommodated in a support unit where he had previously stayed. His father welcomed the respite, but in meetings, letters and e-mails was clearly making the case for his son to come home from January onwards. Hillingdon’s staff opposed this. In the placement, Steven’s behaviour presented difficulties. Following one particular incident in April 2010, staff invoked the DOLS procedures - a best interest’s assessment was then commissioned and the responsible manager signed an authorisation depriving Steven of his liberty. Steven had four consecutive best interests assessments (DOLS are authorised for limited time periods), and following consistent challenging from Steven’s father, Hillingdon applied to the Court of Protection in support of the DOL. The judge said they should have referred the case to the Court of Protection much sooner in the light of Mark Neary’s desire to have his son home.
There were a whole number of recommendations that come out of Justice Jackson’s judgement. Hillingdon’s case was rejected, and these are the key points:
- Good quality assessments - best interests assessments should be balanced assessments, taking into account all the possible options in caring for someone. They should be carefully considered and recorded, and they should take into account the wishes of the person and their family. In a statement issued by Hillingdon Council after the court case, their director of social care said ” we are reviewing our training for those staff who deal with the complex issues relating to the Mental Capacity Act and Deprivation of Liberty safeguards” (3)
- Clear lines of decision making – in Hillingdon there was a lack of clarity about who made decisions. Hillingdon Borough council were wearing a number of different hats. They provided social work support to Steven and his father, ran the support unit where he stayed, they were the managing authority applying for the DOL authorisation and they were the supervisory body who agreed the authorisation. Now there is nothing unlawful about that, but for better decision making, it should be clearer which managers are making which decisions.
- Listen to families - decision makers should always consider the views of the person’s family. There are often conflicting views about what is best, between the person, their parents, and professional care providers, but it does not mean families should be sidelined when they disagree with the professionals. After all, Steven had been cared for by his father for all of his 21 years.
- Training – care homes must be alert as to whether they are depriving someone of their liberty, and be able to distinguish between a restriction of liberty and a deprivation. For example is a door entry key pad a deprivation or mere restriction of liberty? These are not easy judgements, but a useful checklist can be found in Richard Jones Mental Capacity Act Manual (4). Many care home managers and staff will have received DOLS training but a recent Care Quality Commission inspection report found “instances where members of staff were unaware of the Safeguards and the implications for their services, and some where even care home managers demonstrated a clear lack of understanding about the Safeguards”. (5)
- Care planning – lack of clarity in planning Steven’s care is highlighted at various points in the Court of Protection judgement. The QCS care management system policy CR10 stresses the importance of reviewing whether someone is being deprived of their liberty as part of the ongoing care planning process. The beginning of this article expressed the view that Steven Neary’s case means that decision makers are going to have look much more carefully at deprivation of liberty issues from now on. To carefully follow the principles of effective care planning would therefore seem a good place to start.
1. Mental Capacity Act Deprivation of liberty safeguards Code of Practice Ministry of Justice 2008 p.51
2. Court of Protection judgement 9/6/2011 available at http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/neary-judgment-09062011.pdf (accessed 27/7/2011)
3. News release 9/6/2011 available at http://www.hillingdon.gov.uk/index.jsp?articleid=23254 (accessed 27/7/2011)
4. Jones R. Mental Capacity Act Manual Sweet and Maxwell 2008 pp.229-230
5. Care Quality Commission The operation of the Deprivation of Liberty Safeguards in England 2009/10 March 2011