Is Someone You Know Being Deprived of Their Liberty in a Hospital or Care Home?
If you have a family member or friend who is currently in a hospital or care home and their ability to leave, visit or contact their family is restricted, it is possible that they are being 'deprived of their liberty', and you should read on.
It is possible that you may have been left confused if you’ve ever had to get advice or information regarding whether or not a family member, or someone else you care for, has been deprived of their liberty. This is because there has been very little clarity or consistency over the last few years as to what it means. A recent case however has improved this and established a new and much broader test of a 'deprivation of liberty'.
A person who was previously considered not to be deprived of their liberty may now fall within the definition and should therefore benefit from the protections provided by the Deprivation of liberty safeguards
and the Court of Protection
In Basic Terms: What is a Deprivation of Liberty?
We all have a right to liberty which is protected under Article 5 of the European Convention of Human Rights. However, it is sometimes necessary for care homes or hospitals to put regimes in place which limit an individual's ability to leave the care home or hospital and/or visit or contact their family. Whether or not a particular regime or restriction amounts to a deprivation of liberty has been the subject of much debate and case law.
Deprivation of Liberty Safeguards (DOLS)
In 2004 the European Court of Human Rights (ECHR) held that Harry, a man with learning disabilities who had been kept in Bournewood Hospital for some months, had been unlawfully deprived of his liberty under Article 5.
Harry, who lacked capacity, had been compliant on admission and had never sought to leave. He had not therefore been legally detained under the Mental Health Act. His carers, who had been denied access to Harry, wanted him to come back home to live with them. The Court found that there were no adequate safeguards in place to protect those without capacity from being arbitrarily deprived of their liberty by the State in a care home or hospital, this became known as the 'Bournewood gap'.
In July 2007 the Mental Capacity Act was amended to incorporate Deprivation of Liberty safeguards (DOLS)
in order to plug this gap. They were subsequently implemented in April 2009. Under the safeguards those responsible for planning care should always provide care in the least restrictive way possible. Any restrictions that are put in place must be done in a safe and correct way, and only when it is in the best interest of the person concerned.
The DOLS provide that where it is necessary to deprive someone of their liberty, those responsible need to apply for a standard authorisation. This should be applied for either when someone is about to be admitted to a hospital or care home, or when they have already been admitted and new restrictions are being put in place. Before authorisation is granted, steps should be taken to consult with the individual subject to the authorisation, family members and those involved with the person's care to ensure that it is not possible to care for them in a less restrictive way. There should also be reviews of the authorisation to ensure that the restrictions are still justified.
It is possible for a hospital or care home to apply for urgent authorisation if necessary but these are limited to 7 days. It is unlawful to carry out or continue with an action that is depriving someone of their liberty without obtaining either a standard or urgent authorisation.
What is a Deprivation of Liberty and When Should the DOLS be Applied?
There has been a lack of clarity in the legislation, as to the circumstances in which there is a deprivation of liberty requiring authorisation. This has led to different interpretations of the law by the bodies responsible for implementing the DOLs and by the Courts.
Unfortunately this has made it very difficult for anyone to say, with confidence, whether or not the DOLs should apply in a given case. This has left many families, carers and professionals feeling confused and anxious as to whether those they love and care for have been deprived of their liberty, and if so, whether it's justified.
The application of the safeguards has subsequently varied significantly across the country and became the subject of much debate and case law. For anyone potentially affected by a deprivation of liberty decision, the last 5 years has been a roller coaster of twists and turns, highs and lows.
2011 marked a low point for those most affected. The case of Steven Neary v Hillingdon Council 2011
highlighted the fact that 2 years on, councils and professionals were still not applying the safeguards correctly. Hillingdon Council was found by the Court to have misused the system in order to detain the 21-year-old Mr Neary, who has autism, for nearly a year, without proper assessment of his best interests.
The same year Winterbourne View exposed the level of abuse and neglect that exists in some hospitals and residential homes. It also showed that far too many people with learning disabilities or autism were staying too long in hospital or residential homes, when they could lead happier, less restricted lives elsewhere. Towards the end of 2011, the Court of Appeal in P and Q v Surrey County Council and Cheshire West and Chester Council v P
(see Cheshire West
below) tightened the definition of a deprivation of liberty to the extent that the supposed protections provided by the DOLS and Court of Protection would be rarely engaged.
The tragic death of Connor Sparrowhawk, otherwise known as LB (Laughing Boy), or just 'the dude', while detained at an Assessment and Treatment Unit in July of last year, further highlighted how far we still have to go in the UK. Promoting person centred planning, thinking and approaches should be at the forefront, along with the need to ensure those who lack capacity can make their own life choices, are not unduly restricted and have the benefit of proper safeguards.
The campaign launched by LB’s mother, #107 days of action to bring about #JusticeforLB
and all young dudes is an inspiration, and along with similar campaigns is helping to raise awareness and hopefully bring about change.
March 2014 marked a major turning point
. The report by the House of Lords on the Mental Capacity Act
acknowledged the flaws in the current system and made some damning comments about the poor application of the DOLS. The Committee found that tens of thousands of people are being deprived of their liberty without the protection of the law and recommended reform - “the Government needs to go back to the drawing board to draft replacement provisions that are easy to understand and implement”
Just a few days after the House of Lords’ report was published, the Supreme Court found that each of the appellants in the Cheshire West
case were deprived of their liberty, overturning the earlier judgments by the Court of Appeal. In an attempt to help clarify the law, the Supreme Court also provided a new 'acid test' for the application of the DOLS.
Deprivation of Liberty 'Acid Test'
According to the Supreme Court, a person is deprived of their liberty if they are:
- not free to leave, and
- under continuous supervision and control
The Court held that the following are irrelevant
when determining whether there is a deprivation of liberty in the social care context:
- whether or not the person is objecting to their living arrangements
- the 'relative normality' and comfort of the placement, and
- the reason or purpose behind the placement.
Baroness Hale said that decision makers should "err on the side of caution in deciding what constitutes a deprivation of liberty" and concluded, "The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it cold possibly be, should make no difference. A gilded cage is still a cage."
The Supreme Court’s ruling has significantly increased the number of people covered by the DOLS and marks the high point in the case law both in terms of the level of protection provided to incapacitated adults and the level of clarity as to what amounts to a ‘deprivation of liberty’ in the social care context. Cheshire West case
(P v Cheshire West and Chester Council, P and Q v Surrey County Council 2014
) – the facts:
There were three appellants in the case, all of whom lacked capacity for the purpose of the Mental Capacity Act (MCA). P and Q are sisters. P lived with a foster mother who provided her with intensive support in most aspects of her daily living. P never tried to leave the home by herself but if she had done, the foster mother would have restrained her. P attended a further education unit daily. Q lived in a residential NHS home for learning disabled adults with complex needs. Q sometimes required physical restraint, she was on tranquilising medication and her care needs were only met as result of continuous supervision and control. Q showed no wish to go out on her own and so did not need to be prevented from doing so. She was accompanied by staff wherever she went
The third appellant, also known as P, is an adult with cerebral palsy and Down’s syndrome who requires 24-hour care to meet his personal care needs. P was accommodated in local authority accommodation which he shared with two other residents. P received 98 hours of one-to-one support each week, as well as general support from the care home staff. He was able to leave the house whenever he wanted with the assistance of his carers and went out most days. P required prompting and help with all of the activities of daily living and intervention was sometimes required to deal with his challenging behaviour.
The Court of Appeal had found that none of the appellants were deprived of their liberty. The Court had held that the sisters were not deprived of their liberty because of the “relative normality” of their lives and because they were not objecting to the arrangements. Similarly the Court held that P was not deprived of his liberty because his life was no more restricted that which anyone with his disabilities and difficulties might expect.
The Supreme Court overruled the Court of Appeal’s judgments in both cases. All three appellants were deemed to be deprived of their liberty.
Under the new test provided by the Supreme Court, far more individuals will now be considered deprived of their liberty and should therefore benefit from the protections provided by the DOLS and the Court of Protection. The decision means that restrictions which were previously deemed not to amount to a deprivation of liberty, and have not therefore been subject to a standard authorisation, now need to be reviewed. This has already led to an increase in DOLs applications which is expected to continue to rise over the year.
How Can We Help?
An individual subject to a standard authorisation deprivation order has access to non-means tested public funding
to challenge the decision to place them under a DOLS. We act for such individuals and make applications to the Court of Protection. We have succeeded in securing less restrictive regimes
, moving to other placements and changing conditions attached to the standard authorisation.
Where an individual has a family member who is advocating on their behalf they can be litigation friend
and act for the individual in court proceedings. There are also safeguards to ensure that the individual is included in the decision making process. Problems arise where individuals do not have family members advocating for them or are unable to ensure that statutory advocates are appointed.
We are also able to provide support and advice to individuals and family members
where they disagree with decisions purportedly made in a person's best interest and want to challenge the decision. It is important that where people are concerned about their treatment or that of a family member that they seek legal advice
to ensure that the bodies concerned are acting lawfully.
We recently succeeded in getting a standard authorisation discharged by a high court judge following a full hearing. The case was Re M (Best Interests: Deprivation of Liberty) EWHC 3456(COP)
and was one of the first reported cases where an authorisation was successfully challenged.
So What Next?
The Government’s response to the House of Lords’ Report, published in June 2014, quashes hopes of any reform in the foreseeable future. Look out for our next article in which we will be discussing the options for the future.