Home thoughts, abroad

I wrote recently about the Deprivation of Liberty Safeguards (DoLS), by which incapable people can be deprived of liberty but given some basic protection at the same time. (See: here) I received a number of heartfelt, though by no means unanimous, responses, so I thought it might be helpful to report something of what my correspondents said.

No one disagreed that the number of DoLS applications is well below what was expected, but not everyone accepted that in some places, applications are actually being discouraged. One DoLS lead was “disappointed” by my suggestion. He said, “My team and I are working very hard at promoting the importance of the safeguards and very much take an if-in-doubt-apply approach”, and he described the DoLS as “a very powerful tool for positive change and holding services to account.”

Some correspondents felt the statistics might not reflect bad practice. One, a doctor in an area with little DoLS activity, referred to his local training strategy, which “emphasised that deprivation of liberty amounts to relatively draconian control over someone's life.” He favoured an approach based on the Mental Health Act: “For the last 20 years I have been a proponent of the use of guardianship as a means of making important accommodation decisions for people who lack capacity, and we appear to have roughly trebled the number of guardianships used in the last ten months.” Of course, while guardianship may be appropriate for those who are not within the DoLS, the conventional view is that it has little to offer where someone is deprived of liberty.

Most correspondents considered the safeguards unduly complex, and some reported general opposition to their use. One, a Mental Capacity Act (MCA) co-ordinator, said, “Many senior people consider deprivation of liberty a ‘bad’ thing and therefore are reluctant to invite external scrutiny on whether they are responsible for it.” Some felt the process might fail even without overt opposition. A DoLS lead wrote, “Care managers are not always recognising behaviours that warrant the need for a referral”, while someone else said the MCA “is not clearly and properly understood by many practitioners on the ground and certainly not by managers of homes and hospitals”. This might, he felt, have profound implications: “I am not sure that decision-makers are even getting through the starting gate of the MCA, never mind reaching the logical finishing line that is DoLS.”

Several correspondents identified poor planning as a problem. The doctor who favoured guardianship said that before resorting to the DoLS, everyone “should consider first whether they could change the care plan so that an individual was not being deprived of their liberty - emphasis on choice, few restrictions and keeping relatives on side.” One DoLS lead, however, saw this differently: “care managers drag their heels trying endless means of pacifying anxious service-users, only resorting to a DoLS referral after about three months of perseverance.” Far from it being necessary to keep relatives onside, she said most are “fearful of the possibility of loved ones being discharged to their care, and therefore their views about whether there is deprivation of liberty are somewhat distorted”.

This correspondent said that recently, “a wife told an assessor that her husband was absolutely fine, rarely spoke of wishing to leave the care home and could easily be persuaded to behave. This was in stark contrast to what had actually been occurring.”

Inadequate recording was also identified as a problem, not least by this same DoLS lead: “One of our referrals … failed due to insufficient evidential logging of the service-user’s behaviour. This raises the question: given that few care homes are meeting the guidelines for accurate and consistent recordings, will we ever be able to evidence a deprivation of liberty?”

Finally, several correspondents agreed that uncertainty about deprivation of liberty itself is a significant problem, and that different assessors might take different views, especially in more complex cases. A DoLS lead said, “I conclude that unless a person is shouting ‘let me out’ from the rooftops, wrestling staff to the floor and needing to be sat on, constantly making an opportune exit through any open door or needing heavy sedation to control their behaviour, it is just not obvious enough to amount to deprivation of liberty.”

The Deprivation of Liberty Safeguards continue to excite great debate, even if – or maybe because – they are so rarely encountered. From my own postbag, however, it seems that views are polarised, and that some people are profoundly dis-satisfied, both with the purpose of the DoLS and with the way they are used.

(A shorter version of this post appeared as a letter in the New Law Journal.)

Deprivation aside, what is liberty?

Liberty is important, not least for the new safeguards that take its name. But what, in that context, does the word mean? The Deprivation of Liberty Safeguards (DoLS) are intended to protect incapable people admitted to hospitals or registered care homes. As the title suggests, they say that permission will be required before such people can be deprived of liberty. Given the importance of the notion, you might imagine that ‘deprivation of liberty’ is carefully explained. It isn’t: the DoLS use the term but don’t define it, and the accompanying code of practice says little that is original. In fact, the code simply restates the existing law, which might be where the problems begin.

Strasbourg
The DoLS seek to remedy defects identified by the European Court of Human Rights (ECtHR) in the Bournewood case. Those were defects in the common law, which the court said was too vague and too lacking in procedural safeguards to give many incapable people the protection demanded by the ECHR (HL v United Kingdom [2004] 40 EHRR 761).

The defects would only be apparent where Article 5 of the Convention was engaged; where, in other words, someone was deprived of liberty. The ECtHR said, “the starting-point must be the concrete situation of the individual concerned”, and that in deciding whether a particular intervention deprives someone of liberty, “account must be taken of a whole range of factors arising in a particular case[,] such as the type, duration, effects and manner of implementation of the [intervention] in question”. Crucially, the court said the distinction between deprivation of liberty, which will engage Article 5, and a mere restriction upon liberty, which will not, “is merely one of degree or intensity and not one of nature or substance” (HL v United Kingdom, above, paragraph 89). These words have proved extremely resonant.

The scale theory
The DoLS code draws heavily upon Bournewood. Noting the comments of the ECtHR on the crucial distinction, the code says: “It may therefore be helpful to envisage a scale, which moves from ‘restraint’ or ‘restriction’ to ‘deprivation of liberty’. Where an individual is on the scale will depend on the concrete circumstances of the individual and may change over time” (Department of Health, 2008, Deprivation of Liberty Safeguards: Code of Practice, paragraph 2.2).

There are, however, several problems with the ‘scale’ theory of deprivation of liberty. The first concerns its range: rather than with ‘restriction of liberty’, which surely comes some way along, shouldn’t the scale begin with ‘liberty’ itself? Logically, of course, there must be a number of points on the scale, each one representing a particular intervention in a patient’s life, from those that represent only a slight diminution of liberty to those that approach deprivation of liberty. But the number of possible interventions is not fixed; new ones might be made from-time-to-time, and any of them might be modified in numberless ways. The second problem, therefore, is that we can never know precisely how to populate our scale. Imagining, as it seems we must, that the poles represent complete liberty and its deprivation, where on that scale are the various interventions to be placed, and, crucially, where in relation to each other? Is putting someone in a low chair closer to deprivation of liberty than to liberty, for example, and how does it stand in relation to shepherding someone away from an open door?

The third problem relates to something else said by the code: when deciding whether someone is deprived of liberty, we might ask “Does the cumulative effect of all the restrictions … amount to a deprivation of liberty, even if individually they would not?” (ibid, paragraph 2.6). This begs an obvious question: if all we have is the scale, on which single interventions are placed side-by-side, how are we to take account of the aggregate of two or more of them? How, in fact, are we to aggregate them at all, and even if we succeed in doing so, where precisely are we to place the aggregated intervention? Is shepherding someone away from an open door closer to deprivation of liberty than putting him in a low chair and reducing the length of his visits from friends? How will the scale help us decide?

Finally, of course, there is the problem inherent in the very notion of a scale: all it does is display subtle progressions between two points, so it cannot help us with the DoLS. The knowledge that the use of ‘baffle locks’ tends rather more to the right-hand end than to the left is worthless. When what we most require is a ‘yes/no’ answer, the scale is deliberately designed to yield no such thing.

There is an alternative solution; one that is becoming common where the DoLS are used (or at least considered): to take the factors that suggest someone is being deprived of liberty and weigh them in the balance against interventions that are assumed to suggest the contrary. In that way, for example, the conclusion might be reached that a person placed in a low chair is not deprived of liberty today because he will see his friends tomorrow. Yet, though it might seem seductive, this act of balancing is also problematic, for it betrays a fundamental misunderstanding of the nature of liberty itself.

Liberty as an absolute
Among philosophers, there is surprising agreement about what liberty means. Even those who have very different views about its implications and, indeed, its derivation seem to accept that it is an absolute. For Thomas Hobbes, for example, “Liberty, or freedom, signifies the absence of opposition […] a free man is he that in those things which by his strength and wit he is able to do is not hindered to do what he has a will to” (Leviathan, 1651, chapter 21).

Generally, John Stuart Mill’s views were different from those of Thomas Hobbes. That the two men shared a common view of the fundamentals of liberty, however, is clear from Mill’s description of his ‘harm principle’: “[T]he only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant” (John Stuart Mill, On Liberty, 1859, chapter 1). And, a century later, Isaiah Berlin wrote, “I am normally said to be free to the degree to which no man or body of men interferes with my activity … If I am prevented by others from doing what I could otherwise do, I am to that degree unfree; and if this area is contracted by other men beyond a certain minimum, I can be described as being coerced, or, it may be, enslaved … By being free in this sense I mean not being interfered with by others” (Two Concepts of Liberty, 1958).

This notion, that we enjoy full liberty until, and only to the extent that, it is taken from us, is acknowledged in prison law. It would be surprising, therefore, if it did not obtain in the case of hospital and care home residents - the elderly or the profoundly learning disabled who might be expected to form the majority of DoLS patients.

Implications
The implications of this analysis are significant, not least when hospital and care home managers, those that advise them and even judges have to decide whether someone is being deprived of liberty. It seems clear that interventions said to increase liberty cannot do so; at best, they simply ameliorate the diminution of liberty. This means that it is incorrect to say of a man that the possibility he will see his friends tomorrow prevents his being deprived of liberty today, even though he is currently sitting in a low chair out of which he cannot rise. The balancing exercise described above is of no assistance whatsoever.

If liberty is absolute, all that need concern us for the purposes of the DoLS (and for other purposes besides) are these diminutions of liberty, and the only question is whether, singly or in combination with others, they are so significant as to amount to deprivation of liberty. (That much larger question is beyond the scope of this article.) Furthermore, the purpose of such diminutions is irrelevant, as is the context in which they occur. (So, for example, a person is as likely to be deprived of liberty in a high dependency unit as on a learning disability ward, something the DoLS, and many of those who should apply them, seem reluctant to acknowledge.)

Recourse to Thomas Hobbes and Isaiah Berlin might help answer a further problem raised in connection with the DoLS: what if a man has never been able to make use of his liberty? Do those caring for him have the additional, positive obligation to help him do so? Hobbes suggests not: “[W]hen the impediment of motion is in the constitution of the thing itself, we do not say it wants Liberty, but the power to move; as when a stone lies still or a man is fastened to his bed by sickness” (op cit). And for Berlin, “Coercion is not … a term that covers every form of inability. If I say that I am unable to jump more than ten feet in the air, or cannot read because I am blind, or cannot understand the darker pages of Hegel, it would be eccentric to say that I am to that degree enslaved or coerced” (op cit).

The Deprivation of Liberty Safeguards are being used far less than even the government expected. That might be because they are complex, or even because, less than 12 months in, they are still unfamiliar. But it might equally reflect widespread ignorance about what it means to be deprived of liberty. That would hardly be surprising, for there is widespread ignorance about what liberty itself means. The Code of Practice only serves to compound the problem. It advances a ‘scale’ theory that is both logically and logistically flawed, and in so doing, it misrepresents the problem it purports to have solved. The philosophical lessons of the last four centuries are clear enough: liberty cannot be weighed in the balance. It is something we have and might lose, not something we can only hope to achieve.

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

Suicide by advance decision

Kerrie Wooltorton died because medical professionals decided not to treat her. She had made an advance decision, refusing life-saving treatment. When she arrived at hospital, having poisoned herself for the tenth time, the doctors took the view that her wishes were paramount and to treat her would have been an assault.

Now, however, the Catholic Bishops' Conference of England and Wales has said that it is 'crystal clear', on the basis of paragraph 9.9 of the code of practice to the Mental Capacity Act, that any advance decision framed as a means to commit suicide does not have legal force. I'm afraid I don't agree.

We have to remember, first, that these are the words not of the Act itself, but of the code of practice to the Act. Whilst the code must be given respect, it is simply the government's guidance on the statute. I'm not sure it sets out to make anything 'crystal clear'.

In fact, and with respect to the bishops, I don't think the code says what they say it says. The passage in question is about capacity: in order to make an advance decision that will be binding upon others - so that they cannot give you the treatment you don't want to have - you must possess the necessary mental capacity. All the code says is that if someone is clearly suicidal when they make their advance decision, that may raise doubt about their capacity. There are two points to bear in mind.

First, I'm not sure it has been proved that Ms Wooltorton was suicidal when she made her advance decision. She must, of course, have been considered incapable at the point she presented for treatment (otherwise she would have been asked whether she consented to treatment and the advance directive would have been irrelevant). But that is a quite different thing.

Secondly, all the code says is that in those circumstances doubt might be raised about the patient's capacity. In fact, any such doubt might be allayed by the other circumstances of the case, in so far as they are known to health care providers.

The clinicians who cared for Ms Wooltorton will speak for themselves on this point, but it seems likely they will say that they were satisfied on reasonable grounds that her advance decision was both valid and applicable, and, necessarily, that she was capable when she made it. In other words, they will say that any concerns raised by the code were allayed by their knowledge of the facts of the case. That seems to me to be a reasonable stance. The clinicians, after all, treated Ms Wooltorton; the bishops did not.

The same passage of the code of practice says something else: "It is important to remember that making an advance decision which, if followed, may result in death does not necessarily mean a person is or feels suicidal. Nor does it necessarily mean the person lacks capacity to make the advance decision" [emphasis added]. I don't think this helps the bishops at all. It certainly doesn't make for the 'crystal clarity' they seem to think they have found.

In fact, the position is relatively clear: the MCA says that if, when capable, a person has made a valid, applicable advance decision, the treatment specified in that document cannot be given to him or her. If treatment is given in defiance of the advance decision it might well be an assault and result in challenge under the criminal and/or the civil law, and also in professional disciplinary proceedings.

In my view, the statutory provisions about advance decisions have a delicate balance to strike, but they do that admirably.

The Deprivation of Liberty Safeguards might not have helped the original Bournewood patient

Deprived of liberty? Detained?

www.myfolsom.com

Every local authority, and every PCT too, will soon have new responsibilities for incapable people. But there are real questions about how far those responsibilities extend and just whom they cover.

The Deprivation of Liberty Safeguards (DoLS) will come into force in April 2009. They will be found in Schedule A1 to the Mental Capacity Act 2005 (which was inserted by the Mental Health Act 2007).

Background
The DoLS are the Government’s response to the Bournewood case, in which, in October 2004, the European Court of Human Rights (ECtHR) held that it would breach the ECHR for the common law doctrine of necessity to be used to deprive an incapable person of his liberty. (HL v United Kingdom, Application no 45508/99, Decision of 5 October 2004) The court said the common law was too vague and had too few safeguards to comply with Articles 5(1) and (4). For years, it was common law necessity that provided the legal basis for admitting incapable people to hospital and confining them there. Following Bournewood, therefore, a new framework had to be found to replace it. That is the purpose of the DoLS.

New safeguards
The Mental Capacity Act 2005 came fully into force on 1 October 2007. It provides a statutory basis for the care and treatment given to incapable people. At the moment, it may not be used to deprive such people of liberty (MCA, s 6(5)), but the DoLS will change that.

The DoLS will apply to an incapable patient accommodated in a hospital or care home if he is “detained [there] […] in circumstances which amount to deprivation of liberty”. (MCA, Schedule A1, paragraphs 1(2) & 15) Typically, they will cover patients with siginificant learning disabilities or older people who have dementia. In the case of any such patient, it will be up to the relevant local authority or PCT – as a newly-minted ‘Supervisory body’ under the DoLS – to decide whether he should continue to be so detained. This onerous responsibility might be made more so by confusion in the wording of the safeguards themselves.

It seems clear that in order for the DoLS to cover his case, an incapable person will have to be both deprived of liberty and detained. Regrettably, there is no official explanation for this distinction: the Code of Practice to the DoLS, for example, doesn’t even mention it. (Ministry of Justice, 2008, Mental Capacity Act 2005: Deprivation of Liberty Safeguards – Code of Practice to supplement the Main Mental Capacity Act 2005 Code of Practice). The case law, however, is somewhat clearer.

Detention or deprivation of liberty
At first, the Bournewood case involved a patient, Mr L, an application for judicial review of his detention and a writ of habeas corpus, and a claim for damages for false imprisonment. It was accepted that what must first be decided was whether he had been detained. (R v Bournewood Community and Mental Health NHS Trust, ex parte L [1998] 1 All ER 634)

What the common law knows as detention is not the same as what the ECHR knows as deprivation of liberty. The ECtHR reached this conclusion when it considered the Bournewood case, and, from a domestic perspective, it has been enunciated most recently in the Court of Appeal decision concerning the Oxford Circus demonstrators. (Austin and Saxby v Metropolitan Police Commissioner [2007] EWCA Civ 989) In the latter case, the trial judge found “that it is possible for there to be a deprivation of liberty without false imprisonment and vice versa.” (Ibid, per Sir Anthony Clarke, MR at [88])

This must be so, for in Bournewood, the ECtHR felt able to find that Mr L had been deprived of his liberty even though the House of Lords had ruled that he was not detained. (R v Bournewood Community and Mental Health NHS Trust, ex parte L (1998) 3 All ER 289) In Austin and Saxby, meanwile, the Court of Appeal held that although the claimants were not deprived of their liberty in the Article 5 sense, they were imprisoned (even if not falsely). (Ibid, at [105] and [12]) But this essential difference might prove harmful to the DoLS.

If detention is not the same as deprivation of liberty, and if one might exist without the other, it is conceivable that an incapable patient would be found to be labouring under the former but not the latter, and that he would therefore fall outside the DoLS, even though he fell firmly within the Strasbourg judgment in Bournewood.

Consider Mr L himself. We know, because the ECtHR told us, that he was deprived of liberty. But of the nine domestic judges that considered the case, only a bare majority felt he had been detained; and their Lordships, of course, went the other way. So, is it possible that the new Bournewood safeguards wouldn’t even have applied to the original Bournewood patient?

Will the High Court help safeguard vulnerable adults?

Although the Mental Capacity Act 2005 (MCA) can be used to protect people who are vulnerable because they lack capacity to make a decision, it offers no protection to people who, though undoubtedly vulnerable, still retain their capacity. Such people will not find themselves within the embrace of the new Court of Protection, but a recent case suggests that the High Court might now be willing to step into the breach.

The relatively revent case of The City of Sunderland v PS & CA [2007] EWHC (Fam) 623 concerned an 82-year-old woman and whether the ‘inherent jurisdiction’ of the High Court could be used to move her into residential care against her daughter’s wishes. The inherent jurisdiction has long been used by the High Court to (as it sees it) protect incapable people from harm. It is what has enabled the court to declare that it would be lawful for an incapable person to undergo a medical procedure or be prevented from seeing a relative. (See, for example: In re F (Mental Patient: Sterilisation) [1990] 2 AC 1; Re MB (Medical Treatment) [1997] 2 FLR 426; In re F (Adult: Court’s Jurisdiction) [2000] 1 Fam 38.)

The PS case came before the Honourable Mr Justice Munby, who has considerable experience of cases involving incapable people. For present purposes, there were three significant aspects of his judgment. First, Munby J confirmed the inherent jurisdiction of the High Court. Quoting from one of his own earlier judgments, he said: “It is now clear … that the [High] Court exercises what is, in substance and reality, a jurisdiction in relation to incompetent adults which is for all practical purposes indistinguishable from its well-established … jurisdictions in relation to children. The court exercises a ‘protective jurisdiction’ in relation to vulnerable adults just as it does in relation to wards of court. [The] court can regulate everything that conduces to the incompetent adult’s welfare and happiness” (at [13]; emphasis added). (See, for example: Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC (Fam) 2942.) Here, the terms ‘incompetent adult’ and ‘vulnerable adult’ seem to be used to connote the same thing.

Secondly, Munby J said: “Consistently with this view of the jurisdiction … there is no doubt that the [High] Court has jurisdiction to grant whatever relief in declaratory form is necessary to safeguard and promote the vulnerable adult’s welfare and interests” (at [13]; emphasis added). Thirdly, Munby J said that the inherent jurisdiction would even permit the court to order a person’s detention. It is, however, the range of people he thought might be subject to such an order that is of most interest for present purposes. He said: “It is in my judgment quite clear that a judge exercising the inherent jurisdiction of the court (whether the inherent jurisdiction of the court with respect to children or the inherent jurisdiction with respect to incapacitated or vulnerable adults) has the power to direct that the child or adult in question shall be placed at and remain in a specified institution such as, for example, a hospital, residential unit, care home or secure unit” (at [16]; emphasis added).

These extracts from the judgment of Munby J are slightly odd, because he also cited several passages that say no more than that the inherent jurisdiction is available in the case of incapable people. For example, he cited his own judgment as follows: “It is elementary that the court exercises its powers by reference to the incompetent adult’s best interests … The particular form of order will, naturally, depend upon the particular circumstances of the case” (at [13]; emphasis added). (See: Re SA (Vulnerable Adult with Capacity: Marriage) [2005] EWHC (Fam) 2942.) Munby J also cited Dame Elizabeth Butler-Sloss, who had said of the inherent jurisdiction: “It is a flexible remedy and adaptable to ensure the protection of a person who is under a disability … Until there is legislation passed which will protect and oversee the welfare of those under a permanent disability the courts have a duty to continue … to use the common law as the great safety net to fill gaps where it is clearly necessary to do so” (at [14]; emphasis added). (See: Re Local Authority (Inquiry: Restraint on Publication) [2003] EWHC (Fam) 2746.)

It is not clear precisely what Munby J means by a ‘vulnerable’ person. What the Government means by that term is, however, clear. In its No Secrets guidance, it envisages a person who is or may be, inter alia: [1] in need of community care services by reason of mental or other disability, age or illness; and [2] unable to take care of himself or herself, or unable to protect himself or herself against significant harm or serious exploitation. (Home Office and Department of Health, 2000, No secrets: Guidance on developing and implementing multi-agency policies and procedures to protect vulnerable adults from abuse, paragraph 2.3.) In fact, this test was imported from the Government’s 1997 Green Paper, and, even more remotely, from the Law Commission’s own report on mental incapacity. (Lord Chancellor’s Department, 1997, Who Decides? Making decisions on behalf of mentally incapacitated adults, Cm 3803, paragraph 8.7; Law Commission, 1995, Report on Mental Incapacity, Law Com no 231, paragraph 9.6.)

We don't know whether Munby J’s definition is the same as the one in No Secrets. It seems abundantly clear, however, that he does not regard vulnerability as the same as incapacity, and therefore: [1] that vulnerable people will not fall within MCA 2005 just because they are vulnerable; but [2] that vulnerable people will enjoy the protection of the High Court via the inherent jurisdiction, even though, in the case of incapable people, that protection now falls to be provided under MCA 2005 and exclusively by the Court of Protection.

This state-of-affairs might, however, be somewhat problematic. The Law Commission took pains to stress that measures that might be used to safeguard incapable people should only be used with consent in the case of vulnerable people that retained capacity. (Law Commission, 1995, op cit, para 9.12.)

The possibility that the High Court might offer a remedy to vulnerable people who remain capable – and, indeed, that the Mental Capacity Act might be used to protect those who are both vulnerable and incapable – is considered in more detail in a chapter I have written for a new book. That book, entitled Good Practice in the Law and Safeguarding Adults, is edited by Jacki Pritchard and published by Jessica Kingsley Publishers. It also covers such issues as adult protection practice and procedures; crime and vulnerable adults; financial abuse and the question of capacity; the role of CSCI; and confidentiality and information sharing. More information about the book may be found here.

This blog

As its description suggests, this blog will be about law, society and some things in between. In fact, its main focus will be on mental health and mental capacity law, and on other facets of the law that impact upon those who have mental disorder or lack capacity to make decisions. There will, of course, be discussion of the Mental Health Act and the Mental Capacity Act, but from time to time, the blog will also look at such subjects as inquests, ASBOs and the sharing of confidential information. This won’t however, be the place for a systematic analysis of those subjects. There will be no sub-paragraph by sub-paragraph dissection of the latest statute or regulations. That sort of thing can be found elsewhere. Any postings on this blog will be occasional and erratic, and they will often take an oblique, not to say idiosyncratic approach to their subject.