Leona McCalla, Teaching Fellow in SPS and mental health practitioner, discusses the implications of recent judgements on the deprivation of liberty.
On 19 March 2014 the Supreme Court finally gave its judgement in the cases of P v Cheshire West and Chester Council, P & Q v Surrey County Council (2014). These cases concern the criteria for judging when care and treatment for ‘mentally incapacitated people’ amounts to a deprivation of liberty. P is an adult with Down’s syndrome and cerebral palsy, living in a registered care home setting; he has 24 hour care and support and requires physical intervention when he experiences agitation. P & Q (MIG and MEG) are sisters who became subject the care proceedings. MIG was placed in foster care and appeared settled there. She never attempted to leave, but would have been prevented from doing so if she tried. MEG was placed in a residential home for adolescents with learning disabilities and complex needs; she required occasional physical restraint and medication for the purpose of sedation.
The ruling found that P in the Cheshire case and P & Q were all deprived of their liberty. Lady Hale led the judgement and concluded that if a person is subject to continuous supervision and control, and they are not free to leave, then they are deprived of their liberty. This ruling has significant implications for Local Authorities who act as Supervisory Bodies in the Deprivation of Liberty Safeguards process, as it means that many people are likely to be unlawfully deprived of their liberty without safeguards in hospital settings, care homes and in supported living placements.
The Deprivation of Liberty Safeguards (DoLS) was implemented in 2009 as an amendment to the Mental Capacity Act 2005. The purpose of DoLS is to provide protection to people who lack capacity to make decisions about their care and treatment either in care home or hospital settings. The process involves independent professional assessments which are undertaken by a Mental Health Assessor, usually a Consultant Psychiatrist and a Best Interests Assessor (BIA) most likely to be a Social Worker or Mental Health Nurse. The BIA’s role is central to the process and involves assessing whether a person lacks capacity to decide on their care or treatment, deciding whether a person is deprived of their liberty, and deciding whether the DoL is in their best interests, necessary to prevent harm to them, and whether it is proportionate to the likelihood of that harm occurring. The Mental Health Assessor and BIA submit their assessments to a Local Authority Supervisory Body who ‘authorise’ the Deprivation of Liberty; in this way the DoL can be made compliant with Article 5 of the Human Rights Act 1998, the Right to Liberty.
Having worked as a Best Interests Assessor since the role’s inception, I have firsthand experience of the complexities of the work. One of the main challenges involved is deciding whether or not a person is actually being deprived of their liberty. The absence of a definition of what constitutes a deprivation of liberty in the Mental Capacity Act 2005 means that practice is guided by case law. Complexities have arisen because judges have not been entirely consistent in their interpretation of DoLS and therefore definitions of Deprivation of Liberty have evolved with each landmark judgement. Empirical studies such as that conducted in the School for Policy Studies (Carpenter, Langan, Patsios, & Jepson, 2013) have highlighted that BIAs have historically taken a range of factors (based on case law) into consideration when deciding if someone is deprived of their liberty. These include coercive staff behaviour, the resident’s level of objection to their care, the use of medication to reduce agitation, restriction of movement, and family unhappiness with the care.
The judgement handed down in the Supreme Court indicates that factors which have previously been the main considerations in deciding whether or not a person is deprived (objection, acquiescence and the purpose of the care and treatment) are not relevant. Lady Hale confirms that a simple definition should apply: If a person is subject to continuous supervision and control, and they are not free to leave, then they are deprived of their liberty.
This ruling provides clarity about what constitutes a DoL and, as a BIA, I welcome this. However, the judgement means that many more people will require a DoL authorisation. Potentially anyone accommodated in a care home or hospital setting who is not free to leave and lacks capacity to make this decision will require assessment and authorisation. There are thousands of people living with a mental disorder, accommodated in secure care homes or on hospital wards, who previously would have not needed an assessment because they were compliant with their care and treatment, who will now need to be assessed. Since the judgement on the 19th March I have consulted a number of BIA colleagues and we have all identified recent cases where our decision based on case law was that no deprivation was occurring, but under the ‘new definition’ a deprivation would have been judged to be occurring.
Similarly, the case of P&Q involved sisters living in foster care. The fact that P&Q were found to be deprived of their liberty sets a precedent. There could be an influx of cases for people residing in supported accommodation or from people receiving care in their own home (not covered under DoLS), if they are under continuous supervision and they are not free to leave. This has huge resource implications for public bodies and the Court of Protection and questions have been raised about how the system will cope.
I wait with anticipation to see how Supervisory Bodies will respond. There are many questions to be answered: Will the new definition provide more safeguards for people living with mental disorder? Will reassessment of recent cases by required? How will training be provided to Managing Authorities to ensure that care staff are aware of the changes? How will the system cope with the potential influx of referrals?
I look forward to lively debate over the coming weeks and months as we consider further how this judgment will impact on practice and whether it will provide better outcomes for the service users. If the Government act on the House of Lords Select Committees post legislative scrutiny of the Mental Capacity Act , which was published a week before the Supreme Court ruling, the Deprivation of Liberty Safeguards process will be replaced in due course . Until that time comes those of us involved in this field of practice will continue to practice in line with case law judgments, with the aim of safeguarding some of the most vulnerable people in our society.