Tuesday, 31 August 2010

Better Leicestershire than the Isle of Wight

It’s official: in the first year of the DoLS there were far fewer applications than had been expected. That might not be very surprising, but a new report reveals that although authorisations also fell short, it wasn’t by nearly as many as was supposed. And if you want the protection of the Deprivation of Liberty Safeguards (DoLS), you’re 200 times better living in Leicestershire than in the Isle of Wight.

Key findings
The report covers the period 1 April 2009 to 31 March 2010, which marked the first full year of the DoLS. It uses quarterly data provided by every local authority and NHS primary care trust in England. Among its key findings:

* There were 7,160 DoLS applications in England, compared to the government’s prediction of 21,000 for England and Wales combined.
* Consequently, there were also far fewer successful applications (3,297) than predicted (5,000). That said, the proportion of successful applications (46 per cent across the year) exceeded expectations, and it increased as the year went on, from 33 per cent in the first quarter to 54 per cent in the last. Maybe the DoLS are becoming better understood.
* DoLS authorisations for people in care homes generally lasted longer than those for hospital patients: 60 per cent of those granted by local authorities, but only about a third of those granted by PCTs, were for more than 90 days. (Around a quarter of authorisations were for between 91 and 180 days, with care homes accounting for 50 per cent more of them than NHS hospitals did.)
* About four per cent of applications that were refused concerned patients who were nevertheless found to be deprived of liberty. (In the absence of an authorisation, the hospital or care home concerned would be acting unlawfully if it continued to deprive a patient or resident of liberty.)

Local authorities and primary care trusts
Both local authorities and NHS primary care trusts have DoLS responsibilities, and the new report shows that the former received 5,397 applications and the latter, 1,763. The split was therefore 75 per cent to 25 per cent, against a government prediction of 80:20. Furthermore, PCTs granted nearly 49 per cent of the applications they received, and local authorities, around 45 per cent.

Just over three per cent of applications were made not by patients or their relatives, but by third-parties, such as social workers, nurses or care workers. Of these, over 80 per cent were directed to local authorities and 20 per cent to PCTs, and around two-thirds led to full assessments being performed.

Urgent applications
It is possible, of course, for a DoLS authorisation to be granted by those responsible for the hospital or care home in which a patient or resident is deprived of liberty. But any such authorisation will only last for seven days, and it must be truly ‘urgent’. Surprisingly, perhaps, almost 5,000 substantive DoLS applications followed an urgent authorisation. Because every urgent authorisation should be followed by a substantive application, there must have been the same number of urgent authorisations. That number represents almost 70 per cent of all applications. It is worth bearing in mind what the DoLS Code of Practice says in this regard:

Wherever possible, applications for deprivation of liberty authorisations should be made before the deprivation of liberty commences. However, where deprivation of liberty unavoidably needs to commence before a standard authorisation can be obtained, an urgent authorisation can be given which will make the deprivation of liberty lawful for a short period of time. (Chapter 6, emphasis added)


Urgent authorisations should normally only be used in response to sudden unforeseen needs. However, they can also be used in care planning (for example, to avoid delays in transfer for rehabilitation, where delay would reduce the likely benefit of the rehabilitation. (Paragraph 6.2, emphasis added)

There may be concerns that urgent authorisations are being misused. If so, they will be compounded by the fact that in fully 55 per cent of cases, the application that followed an urgent authorisation did not itself result in a substantive authorisation.

Regional variations
It has been clear for some time that DoLS activity is not at the same level in every part of the country. The greatest proportion of applications – 17 per cent - was received by local authorities and NHS primary care trusts in the East Midlands, and then in the London region (16.8 per cent), the South East (15.7 per cent) and the North West (10.7 per cent). The smallest proportion of applications was received in the North East (6.3 per cent) which also, perhaps oddly, had the second-largest proportion of approvals (52.8 per cent). The largest number of approvals was 54 per cent – again in the East Midlands - and the smallest, in the West Midlands (40 per cent) and the East of England (39 per cent).

But the new report is sufficiently detailed to show that the same wide variation exists within, and not just between, regions. Durham, for example, received 135 applications. In the local authorities bordering it, the next highest numbers were in Hartlepool, which received 67 applications, and Darlington (52). Gateshead had 28 applications (and Stockton-on-Tees 22), but Sunderland received only twelve and Northumberland only eight. The population of Northumberland is around two-thirds that of Durham.

The position is similar among local authorities in the south-east of England. Essex, for example, received 203 DoLS applications. Among its immediate neighbours, the next busiest was Hertfordshire, but its 54 applications represented only slightly more than a quarter of the total across the border. And the next highest had less than a fifth: Suffolk and Waltham Forest, with 35 each. Redbridge had 33, but then it was Havering, Enfield and Southend-on-Sea, all in the low-20s, before Thurrock on 15 and the Medway Towns on eight applications. Peterborough is only one local authority (Cambridgeshire) away from Essex, and it recorded no applications at all. But one of Peterborough’s neighbours, Northamptonshire, had 61 applications more (and has a population only around a quarter larger).

Essex cannot, however, claim the most DoLS applications among local authorities. That honour falls to Leicestershire, where they numbered 233. Completing the top four are Lancashire, which received 192 applications, and West Sussex, which received 163. The majority of local authorities received fewer than 50 applications, while Torbay and the Isle of Wight each received three, and Bath & North East Somerset and the Isles of Scilly were among the local authorities claiming to have received two and no applications respectively. Given that the DoLS are far more likely to affect people over 65 years-of-age (see below) these negligible returns are surprising, coming as they do from areas with significant numbers of aged residents.

Among NHS primary care trusts, Leicestershire was supreme, with Leicester City PCT claiming 136 applications and Leicestershire and Rutland PCT 115. The next busiest PCT was Nottingham, with 47 applications, followed by West Sussex (39) and Manchester (35). The majority of primary care trusts received fewer than 25 applications, and despite the relatively high number (36) claimed by its partner local authority, Blackburn with Darwen PCT did not receive a single application, a distinction it shared with Herefordshire, the Isle of Wight, Barking & Dagenham and Greenwich Teaching PCTs.

These combined statistics, therefore, reveal some striking anomalies, not least between Leicestershire, where there were 601 applications, and the Isle of Wight, where there were just three. Their populations differ greatly, of course, but whereas in the former region it took only 1,075 residents to account for each DoLS application, in the latter region it took 4,667.

Sex and age
The new report says a greater proportion of applications (53 per cent) concerned women than men. This disparity might, however, be a function of demographics, because two-thirds of all applications were made in respect of patients over 65 years-of-age, and women are more numerous in that group. (In fact, the rate of applications per 100,000 of population for those over 65 is nine times that for the 18-64 age-group.)

Ethnic origin
Over 90 per cent of applications concerned patients in the ‘White’ census group, with 2.6 per cent and 2.5 per cent concerning those in the ‘Asian’ and ‘Black’ groups respectively. In broad terms, the report says, these figures are “consistent with the make-up of the population as a whole”. It is nevertheless striking that a smaller proportion of DoLS authorisations were refused for patients in a minority ethnic group than for ‘White’ patients. In the case of ‘Asian’ patients, the difference is fully five per cent.

In 83 per cent of cases, refusal of a DoLS authorisation was because deprivation of liberty was not felt to be in the patient’s best interests. Given the nature of best interests assessments, that might, of course, mean that the patient was not in fact deprived of liberty (however that concept is to be understood).

As might be expected, given the greater number of applications they received, local authorities generally accounted for a larger proportion of the refusals in each class. The exception, however, was ‘eligibility’ – essentially, the decision whether a patient might be better detained under the Mental Health Act. Here, fully two-fifths of refusals were for patients in hospitals. (Given that there are more hospitals in which the MHA may be used than care homes, that is not, perhaps, so surprising an outcome.)

Thursday, 26 August 2010

To know at all costs?

The law has struck a blow for patients’ rights, but maybe at the expense of their best interests

The Upper Tribunal (UT) is the new court of appeal from mental health tribunal decisions. The tribunal that makes those decisions is the First-tier Tribunal of the Health, Education and Social Care Chamber (FtT), the successor to the MHRT. In a recent case, the UT had to consider the way the FtT had dealt with a man who is being medicated covertly (RM v St Andrew’s Healthcare, 23 April 2010).

The FtT ordered that information including the fact of covert medication be withheld from the man, but the UT set that order aside. While disclosure might cause the man serious harm, the UT said that prohibiting disclosure would not be not proportionate. This would be the case, even though the UT was told that when the information had been disclosed to the man previously, he had defaulted from his treatment, his condition had deteriorated, and he had had to be both restrained and secluded. Furthermore, his condition had improved of late, largely because covert medication had been re-introduced.

The UT summarised the relevant case law:

* It is “beyond argument and not in dispute” that openness is generally required, and that a hearing can be fair, even though every document is not disclosed.
* While a party’s solicitors might not be able to disclose information to their client, they can still take his instructions on its themes.
* In ‘control order’ cases, it would be unlawful to deny disclosure of evidence to detainees and their lawyers, even though it would be granted to the ‘special advocates’ appointed for them by the state.

Here, the UT found for the patient’s right to know. Without disclosure of that fact that he was being covertly medicated, any FtT hearing would be “a mere mummery”. Either the patient would have to be excluded or the lawyers and clinicians, and even the tribunal members, would be prevented from discussing everything they knew. Refusing disclosure would have involved not just “a compromise between justice and openness”, but “the sacrifice of the patient’s right to challenge his detention effectively”.

There is a certain logic to this decision, founded, clearly, in the ECHR and the Human Rights Act. But there is also reason for concern. The UT summarised one line of argument for the patient as follows: “If detainees under control orders are entitled to disclosure of the case to be answered even at the risk of a terrorist attack, so the more must the patient be entitled to disclosure even at the risk of a deterioration in his own condition or potentially his death” [emphasis added]. These were not the UT judge’s own words, admittedly, but he acknowledged that they represented the logical conclusion of the process his decision sanctioned. If, in the cause of a ‘fair trial’, a patient must be able to put his case, even if the result might be his own death, we have surely travelled a long way not just from the dusty paternalism of the past, but also from any, perhaps more contemporary, notion of ‘best interests’.

More reasons … and more money spent on lawyers? That’s what the new appeal tribunal seems to want

It is now possible to challenge decisions of the mental health tribunal without going all the way to the High Court. The new tribunal, which has taken over from the much-loved Mental Health Review Tribunal (MHRT), is the First-tier Tribunal of the Health, Education and Social Care Chamber (Mental Health) (FtT). If that name recalls Jimmy Saville’s Old Record Club – “That’s: open bracket, I Can’t Get No, close bracket, Satisfaction” – so does the title of the new appellate court: the Upper Tribunal (Administrative Appeals Chamber).

The Upper Tribunal (UT) is finally getting into gear, and some of its early judgments are about the reasons the FtT gives for its decisions.

Satisfactory reasons
In the case of RH, the UT said those reasons were perfectly adequate (RH v South London and Maudsley NHS Foundation Trust (Restriction Order), 8 February 2010). The FtT had refused to discharge RH from conditional discharge, even though all the professionals, including his responsible clinician and social worker, and an independent psychiatrist, supported his case. The tribunal had formed a different, more pessimistic view of the risk he continued to pose.

When considering RH’s appeal, the UT said there is a difference between a case where the tribunal disagrees with the clinical judgements of witnesses (where the explanation will have to be more detailed) and one where the only disagreement is as to the inferences to be drawn from those judgements. This was an example of the latter case, where the tribunal need only give sufficient reasons to show that it has directed itself properly as to the law and had regard to the appropriate matters.

Is this the job of the NHS?
Although this was sufficient to dispose of the appeal, the UT was also concerned that neither the hospital nor the Secretary of State had taken part in the proceedings. It said this approach was understandable in the past, when MHRT decisions were challenged by judicial review and the tribunal itself took the lead. Now, however, the UT said it is “extremely unsatisfactory” for hospitals (for example) to make no submission at all, for there is “a public interest in appeals at this level being properly argued”. Hospitals and the Secretary of State, the UT said, “have an interest in the standards of adjudication in mental health cases, [so] one might also expect them to take an interest in the way mental health law is developed”.

This comment was not central to the case, but it does raise a question that demands a response. And that response might be another question: why? Why should the NHS shoulder the burden – and the cost – of refining mental health law or, more to the point, of correcting the manifold errors of the First-tier Tribunal?

The second appeal came in the case of a restricted patient who suffers from anti-social personality disorder (DL-H v Devon Partnership NHS Trust and Secretary of State for Justice, 12 April 2010).

A difficult case
The UT acknowledged that this had been a difficult case: the statutory definition of ‘mental disorder’ had changed between the evidence being prepared and it being heard. The decision of the FtT was nevertheless set aside, because it had not been properly explained.

The FtT had decided not to discharge the patient, either absolutely or conditionally, but the UT said its reasons for doing so were inadequate. On the question of risk, for example, the FtT had excluded the evidence of the patient’s expert witness for a reason that was equally applicable to that of his responsible clinician.

In general, the UT said that FtT reasons must “at least” say what points the tribunal regarded as decisive, and that they will have to be more detailed and more compelling if the overall decision is a surprising one.

Appropriate treatment
Then, the UT turned once more to peripheral matters. It said that because of the way ‘medical treatment’ is defined in the Mental Health Act, it is not hard to satisfy the requirement that ‘appropriate’ medical treatment be ‘available’ for the patient. But this means that a patient “may be contained for public safety rather than detained for treatment”. To guard against this danger, the UT said that the FtT “must investigate behind assertions, generalisations and standard phrases”. Among the questions it said should be asked, and that services and clinicians can now expect to be asked, are: “what precisely is the treatment that can be provided?” “What discernible benefit may it have on this patient?” “Is that benefit related to the patient’s mental disorder or to some unrelated problem?” “Is the patient truly resistant to engagement?” This tribunal didn’t even do that.

Better to be detained?

The High Court recently considered the case of Mr Mwanza, who suffers from mental illness and has on occasions been detained in hospital. Having become destitute, he sought to enforce his after-care rights, and in particular, to compel a local authority to provide accommodation for him and his family. He was not successful. (R (Mwanza) v London Borough of Greenwich and London Borough of Bromley [2010] EWHC (Admin) 1462)

Mental Health Act
Having been detained under section 3 of the Mental Health Act 1983 (MHA), Mr Mwanza was, of course, entitled to have after-care services provided to him under section 117. But that didn’t help him secure a home.

The judge ruled that accommodation is not necessarily part of the services a section 117 authority must provide. Those services are simply the ones that will meet a need arising from the patient’s mental disorder. The judge said:

“It may be that, if a former patient were unemployed or homeless, that would increase the chance of deterioration in his mental condition, but that would not require an authority to provide employment or housing … The need for work or a roof … are common needs, and do not arise from mental disorder.”

And he added:

“[I]t simply cannot have been the intention of Parliament to have required local authorities … free of charge, to provide a roof over the head of former section 3 patients.”

The judge said this conclusion was supported by comments in the National Framework for NHS Continuing Healthcare (which was published in 2009) and also by the fact that where housing is not provided under the MHA, it might nevertheless be possible to provide it under section 21 of the National Assistance Act 1948 (NAA). (It didn’t, however, prove possible here.)

National Assistance Act
Amongst many other things, the NAA provides a ‘last resort’ entitlement to residential accommodation. Under section 21(1)(a), Mr Mwanza would have to show that, by reason of age, illness, disability or other circumstances, he was in need of care and attention that was not otherwise available to him. He failed in this task, both on the facts and on the law.

The judge held that a person would not come within section 21 solely because he required accommodation. The authorities established, he said, that more was required; that a claimant would have to show that things were being done for him that he could not or should not be expected to do for himself. Following an ‘unimpeachable’ assessment, the local authority had concluded that in Mr Mwanza’s case, there were no such things.

There was, however, a second reason for denying Mr Mwanza section 21 support, and it had to do with his wife: his presence in the United Kingdom would be lawful only while she had leave to remain to here. But the judge said that leave had expired in February 2006. Because of an amendment introduced by New Labour in 1999, a person who would otherwise qualify for accommodation under the NAA will lose it if he does not have leave to remain in the UK. This was sufficient to deny Mr Mwanza and his wife accommodation, and the court said a similar result was brought about by section 54 and Schedule 3 of the Nationality, Immigration and Asylum Act 2002 (NIAA), and for a similar reason.

The NIAA exclusion must be dis-applied if such is necessary to avoid a breach of a person’s ECHR rights. Here, however, the judge held that no such breach would occur: the family appeared fully able to return to its country of origin (which, admittedly, some members had last seen 10 years ago) and Mr Mwanza said only a lack of the necessary funds had preventing him doing so already.

This case tells us some important things: first, that housing need not be part of a patient’s section 117 entitlement. That suggestion is the latest one in a debate that has been raging for many years, but in this case at least, it seems insecure. The judge justified it on the grounds that housing could just as easily, and more appropriately, be provided under the NAA. But as his judgment went on to demonstrate, the fact that someone needs accommodation might not be enough to ensure that he is given it under section 21. Oddly perhaps, the judge doesn’t so much as acknowledge that apparent contradiction.

The case also tells us that failed asylum seekers have a better chance of securing community services if they have been detained under section 3 of the MHA. That is because, unlike the NAA – and, for that matter, sections 95 and 98 of the Immigration and Asylum Act 1999 (which contain similar provisions) – the entitlement conferred by section 117 does not depend upon a former-patient’s immigration status. This distinction establishes another group of patients – alongside those who would otherwise have to pay care home charges when they leave hospital – whose material conditions on discharge might be enhanced if they were detained under the Mental Health Act rather than being admitted informally. It didn’t, however, do anything for Mr Mwanza.

As broad as it is long?

Sometimes, a guilty plea cannot be the end of the story. That is the lesson from a recent case in the Court of Appeal. (R v Walton, 5 August 2010) Where a man who had been allowed to plead guilty to several offences in fact lacked the capacity to do so, his conviction was overturned. The outcome, however, remains substantially the same.

Andrew Walton has a history of offences, including burglary and criminal damage. He has breached two conditional discharges and failed to surrender to bail. When he was arrested again, for being drunk and disorderly, police found bread knives in his possession. He was charged with two offences in that regard, and also, subsequently, with sexual activity in the presence of a child.

There was a wealth of expert evidence concerning Mr Walton. It was said that he had been sexually abused as a child and that his IQ might be as low as 54. A psychologist said he had rarely come across such profound disability and it was felt that Mr Walton was unfit to plead. But this evidence was only used for the purpose of sentencing. Mr Walton had entered a plea of guilty, and a hospital order was imposed upon him under the Mental Health Act 1983. So great a risk was he thought to pose that special restrictions were added, limiting the circumstances in which he could be discharged or even given leave.

Mr Walton appealed this result, arguing that if the expert evidence had been treated properly, he could not have been required to enter a plea. The evidence showed, he said, that he had not understood the significance of a guilty plea: he simply thought it would help him get away earlier to catch his train.

The Court of Appeal was sympathetic to Mr Walton’s arguments, and it quashed his conviction in favour of an absolute discharge. The hospital order and its restrictions would, however, continue to have effect.

Despite his success, Mr Walton remains confined. That state-of-affairs reflects the fact that if appropriate inquiry had been made and Mr Walton found unfit to plead, the court would still have enjoyed the power to do what it did. That power might arise under a discrete statute – the Criminal Procedure (Insanity) Act 1964 (as amended) – but the result of its use is precisely the same: the patient is subject to a hospital order and liable to be detained in hospital under the Mental Health Act 1983.

Friday, 9 July 2010

Another review

Another of my books, The Nearest relative Handbook, was reviewed recently in the Solicitors Journal. The reviewer was David R Pickup, a barrister who practises from St Johns Buildings chambers in Manchester. This is what he wrote.

A client telephones the office and tells you that Aunt Flo is demented and no one will help get her into hospital. Aunt Flo then phones you and asks why the nice social worker is talking to her husband about getting her admitted. You finally succumb to the pressure of it all and get sent to the hospital for distressed lawyers and you want your nearest and dearest to get you out and back to the office.

These scenarios are all about the role of the nearest relative. A phrase used in mental health law for the important person who has a function in admissions where a patient does not agree to detention and also in discharge. This is not to be confused with next of kin, which has little reality in law or otherwise, but is readily understood by most people.

This book covers the complex subject in an excellent way. It is clear and full of case studies which illustrate the point well. The law has changed recently with amendments to the 1983 Mental Health Act and these are discussed. In the book we find who the nearest relative is and how the law treats who is the best person to be consulted about admissions, who can object, who can request an assessment for admission and in some cases request a person’s discharge. A person can be removed if not suitable to act in this role.

The law has been updated to introduce equal treatment to same sex relationships, which the book also covers. Mental health lawyers will find this an extremely useful reference.

Wednesday, 16 June 2010

Is liberty relative?

The Court of Appeal seems to think so, and that is relevant to the Deprivation of Liberty Safeguards

Some suggest that there is such a thing as ‘residual liberty’; that although I might lose my liberty by order of the court, or because of my mental disorder, I do not lose so much of it that I cannot subsequently lose more. The Court of Appeal made this suggestion recently (Iqbal v Prison Officers Association [2009] EWCA Civ 1310). Although it is based on an earlier case in that court, it sits uncomfortably with the view of the House of Lords in the same case (R v Deputy Governor of Parkhurst Prison and others, ex parte Hague [1990] UKHL 8) and with a later decision of the same court. But what would be the implications of residual liberty for the Deprivation of Liberty Safeguards (DoLS)?

The DoLS are intended to protect incapable people in care homes and NHS hospitals who are deprived of liberty. There is, however, confusion about what that might mean. But what if the ‘liberty’ of which one must be deprived in order to come within the DoLS was to incorporate the ‘residual liberty’ mentioned in Iqbal? (That must be a legitimate question. The nature of liberty surely cannot differ according to whether it may be taken away by the criminal law or the civil law.)

A question of degree
The notion that some vestige of liberty might survive detention suggests that one may be deprived of liberty to varying degrees: I am undoubtedly deprived of liberty if I am committed to prison or detained in hospital, but it seems that is not the end of the story, and that by being confined to a room or cell, perhaps, I might be further deprived of liberty. (That would in itself be problematic for the DoLS: the notion is not contemplated, either in the safeguards themselves or in the accompanying code of practice, and as a result, we are not told what ‘degree’ of deprivation of liberty would have to be achieved before they were engaged.)

This suggests that the question not just of how far one is deprived of liberty, but also of whether one is deprived of liberty at all, is also a relative one. And this in turn seems to demand a comparison between one’s current and former states, and to entail that one’s ‘residual liberty’ will only be in question if one’s current state represents a further degree of confinement from one’s former state. (A man’s ‘residual liberty’ is not in question if, it being lawful to imprison him, he is simply moved from one gaol to another, or from a gaol to an island. It is in question, however, if lawful authority exists simply to confine the man to a room, but he is subsequently locked in a cupboard.)

But what, in this context, does the ‘residual’ in residual liberty actually mean? With what former state is one’s current state to be compared; with some pure, absolute, antediluvian state of liberty, perhaps? (See further here.)

An alternative view, which seems implicit in the few decisions that actually consider residual liberty, is that the comparison is not with abstract liberty at all, but with the actual state that immediately preceded the current one. In some ways, this would be sensible: where a man confined to his own house by disability is moved to a hospital that he cannot leave for the same reason (and only for that reason), it seems odd to argue that he is deprived of liberty. (To do so would be to imply that alongside their negative duty not to prevent the man from leaving, the proprietors of the home have a positive duty actually to enable him to do so, and that if they do not fulfil that positive duty, they will have to resort to the DoLS or run the risk of being held to have unlawfully detained him.)

But such a course might also produce less welcome results. Consider, for example, two men in a care home, each of whom is confined there under lock and key: Mr A came from his own home, whereas Mr B came from the maximum-security wing of a local prison. If the question of whether a person is deprived of liberty really is a relative one, and the person’s immediate past state is relevant, Mr A’s current state amounts to deprivation of liberty, whereas Mr B’s does not, even where the interventions are precisely the same in the case of each man.

This curious position is the result of treating deprivation of liberty as a relative concept, as someone might do, and might have to do, who accepts the notion of residual liberty. It sits oddly with the DoLS, however, and might imply an even more damning conclusion: not just that ‘deprivation of liberty’ was poorly thought-through, that has been clear for some time. Despite its crucial place in the safeguards to which it lends its name, the concept fails to address key jurisprudence and is fatally undermined as a result.