Monday 15 March 2010

No place like home?


Since April, many hospitals and care homes have had the power to deprive people of their liberty. That is the result of the DoLS – the Deprivation of Liberty Safeguards.

The government prefers to see the DoLS as protection: a way of preventing the arbitrary detention of the old and the incapable. It is certainly true that the DoLS were introduced to fill a gap in the law; a gap rather embarrassingly revealed by the European Court of Human Rights in the 2004 case of HL v United Kingdom. Presumably, therefore, it would be a cause for concern if the new safeguards were not being used.

The government forecast that before next spring, around 21,000 people would have their cases assessed under the DoLS and a quarter of them would then be brought formally within the safeguards. According to the latest statistics, that is simply not going to happen.

* Of the more-than-300 local authorities and PCTs charged with implementing the safeguards, a large number claim to have had very few DoLS cases, and 14 have still not had any cases at all.
* If the experience of the first seven months is anything to go by, only around 8,000 – as opposed to the forecast 21,000 – people will be assessed in the first year of the DoLS, and the number of people brought within the substantive safeguards will be little more than a third of the predicted number.
* In fact, these national figures conceal an even more striking regional picture. One council, for example, reported 105 DoLS cases in April and May, while only two of its neighbours even reached double-figures.

These statistics are unpublished and unofficial, but they suggest that the reality will fall well short of the government’s own forecast for the DoLS, a forecast that was widely criticised for being too conservative. So, what is going wrong?

The powers given by the DoLS are not unfettered: they can only be used with prior permission from a PCT or a local authority. That in itself is controversial, given that it means that decisions about people’s liberty are now being taken by what are, with the greatest respect, administrative bodies. One problem in the Bournewood case was the patient’s lack of ready access to a court, and although the Court of Protection remains a long-stop, that problem might not have been solved by the DoLS. It is perhaps surprising that the Daily Mail hasn’t shown more interest.

Furthermore, the procedure for seeking DoLS permission is complex and bureaucratic - many would say unnecessarily so. It can take up to three weeks and involves several lengthy forms, six separate assessments and, usually, at least one psychiatrist and a social worker. Maybe that is what has made the procedure unpopular.

There are also broader problems with the DoLS, not least the fact that because of the way they are drafted, they might not even apply to the patient whose case led the ECtHR to do what it did. Furthermore, a recent decision of the House of Lords in a public order case might mean that there is no one – not a single patient with a learning disability or little old lady with dementia – to whom the DoLS apply. Maybe that explains the figures.

And there is also great uncertainty about precisely when the DoLS apply, reflecting similar uncertainty about just what it means to be deprived of liberty. Surprisingly, given its importance to what are, after all, the Deprivation of Liberty Safeguards, the term is not defined, either in the DoLS or in the slim code of practice that accompanies them. And now, there is growing anecdotal evidence that practitioners are taken wildly divergent views. That is unfortunate, both in itself and for a further reason: the statistics suggest that where a request for DoLS permission is refused, the commonest reason is that the patient was not deprived of liberty. If that conclusion was reached in error, permission is being refused where in truth it should have been granted, and a vulnerable person is being unlawfully detained.

But there might be another, perhaps related, explanation for the low take-up of the DoLS: that in some – quite a few, in fact - parts of the country, applications are being actively discouraged. That would be very worrying, and not just because public bodies would be failing in their duties. Hospitals and care homes too would be placed in jeopardy. Where permission is required to deprive an incapable person of liberty, the failure to obtain it will be unlawful and that one was discouraged from seeking it will be no defence.

(This post first appeared as an article in the New Law Journal)