Clarity from the Court of Protection
The role of family members and advocates in locating more suitable accommodation for loved ones, and the duration of DOLS authorisations.
Is your loved one currently accommodated in an unsuitable or restrictive placement? Are they deprived of their liberty; not free to leave and under continuous or constant supervision and control of staff? Have you taken it upon yourself to try to find somewhere more suitable that would meet your loved one’s needs, but found that the authority will not consider that option or are delaying in doing so?
Perhaps we can help? Zena Soormally
, specialist Court of Protection
and community care solicitor, was instructed in just such a case before the Court of Protection recently and the judgment has now been published. The case is known as P v Surrey County Council & Anor  EWCOP 54 (22 May 2015) and can be found here
The case concerned our client, referred to in the published judgment as “P” to protect his identity. P is a 26 year old man who is diagnosed with severe learning disability and autistic spectrum disorder. Miss Soormally was instructed on P’s behalf by his mother and relevant person’s representative, who in turn had the support of an advocate.
The result of the case has been a judgment in which the Judge has given clarity to the roles and responsibilities of best interests assessors and supervisory bodies, as opposed to family members and advocates, in investigating alternative potentially less restrictive placement options for their loved ones; in short, the Judge held that it is not for family members and advocates to “prove” that a placement is available and less restrictive, but for the authorities to investigate the option and provide for a review of any deprivation of liberty
authorisation in a short period to consider the viability of the placement further if there is a possibly less restrictive alternative. The Judge has also given helpful guidance on the practice of granting authorisations for lengthy periods, despite decisions by best interests assessors
that such an authorisation is only in the person’s best interests for a short period of time.
We believe that this judgment provides helpful guidance that will assist both family members and advocates of those who lack capacity, as well as supervisory bodies, managing authorities and best interests assessors in the future. P’s mother, who provided instructions to Miss Soormally on her son’s behalf, had this to say about the case:
“There is no doubt that the support of the advocate and solicitor has been huge in highlighting our son’s needs and rights, none of which would have been spelled out to us otherwise. It has also made it very apparent that had our son not had me and his father able and willing to fight his corner, then he would still be sitting unhappy in the ‘emergency’ home. Sadly there must be many individuals left in that sad situation while the ‘care’ system fails them. We can only hope that our legal battle will go some way to preventing other vulnerable individuals being put through similar scenarios”.
…and this to say about Miss Soormally:
“We cannot thank you enough for all you have done – you have been so supportive to us all and it is so much appreciated. You are a lovely person.”
More detail on the judgment:
In her judgment the Judge clarified a number of important matters in relation to both the duration of any deprivation of liberty authorisation, including how it should be determined, and the process to be applied by best interest assessors and supervisory bodies when family members and advocates have found what they feel is a more suitable, less restrictive placement for their loved one.
Below is a summary of the key helpful findings made by the judge:
Duration of authorisation
In considering the issue of whether to grant a standard authorisation, in addition to the matters set out in the Mental Capacity Act 2005
and other relevant guidance and case law the supervisory body should have regard to:
- The suitability of the placement as identified by the best interests assessor on the face of the assessment;
- Anything said in the best interests assessment by anyone other than the assessor about the suitability of the placement; and
- The best interests assessor's views on time-limited suitability of the placement.
If the supervisory body finds, having undertaken the above assessment, that an alternative potentially less restrictive option may be available, it should authorise P's deprivation of liberty for a short period of time only, and request that further detailed information about the more suitable alternative/s accompany any fresh application for deprivation of liberty in respect of P's stay at the care home.
If the supervisory body is unsure about the availability of an alternative option or the views expressed by the best interests assessor with regards to duration, they should take steps to speak with the assessor.
The supervisory body should not view the need to avoid distress to P of repeat assessments as determinative, where there is little or no evidence that the assessments cause such distress.
When considering whether to issue an authorisation the supervisory body should be clear that the authorisation relates to the circumstances in which P is deprived of his liberty, not his condition
; it is situation specific. It is not sufficient to say that P would be deprived wherever he went and, as a result, a lengthy authorisation should be granted.
It is for the managers of the care home, the best interests assessor and the supervisory body to ensure that P’s deprivation of liberty accords with the least restrictive principles including in relation to duration. Where someone has already been deprived of their liberty for some time, that is a relevant consideration, in addition to the views on duration set out by the best interests assessor.
Alternative less restrictive placements
The best interests assessor and supervisory body need to consider the suitability of the current placement when considering whether it is the least restrictive option in P’s best interests, and this includes having regard to the views expressed by family members and advocates. If alternatives are suggested that appear less restrictive, unless or until a potentially more suitable, less restrictive alternative has been properly considered, it is not possible for the assessor or supervisory body to say that the current placement is the least restrictive alternative other than for a short period of time, as detailed above.
When family members and advocates suggest alternative placements, they are often met, as in this case, with suggestions that it is not for the best interests assessor or supervisory body to consider those alternatives. In this case the Judge noted that given that P’s mother was “acting appropriately and in her son's interests…it was incumbent on the best interests assessor to investigate her proposal to see whether in fact it offered a less restrictive, more suitable environment in which P could be cared for and, to the extent necessary in his best interests, to have his liberty circumscribed”.
The responsibility to consider the alternative options rests both on the best interests assessor and on the supervisory body.
It is not for family members or advocates to have to “prove” that a suggested alternative placement is available. It is a duty on the supervisory body to investigate whether a less restrictive alternative is available. It cannot delegate its responsibility in this regard to the family member or advocate. Once the supervisory body is made aware that the care home is not suitable in the medium or longer term the obligation is on it to be proactive in investigating that option.
When conducting an assessment as to whether it is in P’s best interests to be deprived of their liberty, the supervisory body must avoid taking a “tick box” approach, and instead must give consideration to the specific circumstances of the case. The supervisory body should consider, amongst other things:
- What harm, if any, may P suffer if his continued detention is authorised?
- What placement or type of placement would be a more appropriate response?
- How long will it take to investigate the availability and suitability of a more proportionate response