Bound to fail

The European Court of Human Rights case of HL v United Kingdom [2004] ECHR 471 identified what is now known as the Bournewood gap. It highlighted that the rights of those who lacked mental capacity to consent to care or treatment, and who subsequently needed restrictions to be placed on their liberty for their own safety, were not afforded sufficient protection by law.

In response to the Bournewood gap, Deprivations of Liberty Safeguards (DoLS) were introduced into the Mental Capacity Act 2005 by the Department of Health in April 2009, through the Mental Health Act 2007 (MHA 2007). DoLS were designed to impose proper safeguards to protect individuals who lack capacity to make decisions about, and consent to, arrangements made for their care and treatment in hospitals and care homes, where there was a need to deprive them of their liberty to protect them from harm.

DoLS provide a statutory framework to ensure that in circumstances where any form of deprivation is necessary, any such restriction placed on a person's liberty is in their best interest, and that any such restrictive care arrangement does not inappropriately, or disproportionately, limit the individual's freedom.

What is a deprivation of liberty?

There is no clear definition of what amounts to a deprivation of liberty.
It is a complicated area of law that has divided academics and, in practice, is dependent on the particular facts of each case.

The code of practice provides a useful list of factors that may amount to a deprivation of liberty. These include:

• The use of restraint, including sedation, to admit a person to
  an institution against their wishes;

• Staff exercising complete and effective control over the care and movement of a person for a significant period;

• Staff exercising control over assessments, treatment, contact and residence;

• An institution taking the decision that an individual will not be released into the care of others,
  or permitted to live somewhere else unless the staff of that institution deem it to be appropriate;

• Refusing a request by carers for a person to be discharged into their care;

• A person being unable to maintain social contacts because of restrictions being placed on their access to other people; and

• A person losing autonomy because they are under continuous supervision and control.

It is important to note that deprivation of liberty is fact specific and should be considered on a scale basis. A number of small restrictions could amount to a deprivation of liberty, in the same way that one extreme restriction could achieve the same result.

DoLS - the procedure

If an individual is being deprived of their liberty, hospitals and care homes must apply to the local authority for authorisation of that deprivation of liberty. Once the application is received, a series of assessments are carried out:

• Age assessment: is the individual over 18? (DoLS only apply to those over 18);

• No refusals assessment: does the authorisation of the deprivation of liberty conflict with a valid advance decision, a decision of an attorney (appointed by a lasting power of attorney) or a decision of a deputy (appointed by the Court of Protection);

• Mental capacity assessment: does the individual lack capacity?

• Eligibility assessment: is the individual already detained under the MHA 2007?; and

• Best interest assessment: have the individual's best interest been taken into account to keep them from harm?

Usually, assessments are carried out within 21 days of receipt of the application. Although in extreme circumstances, an urgent authorisation procedure can be followed and assessments are conducted within a matter of days.

The best interests assessor has the ability to make recommendations in relation to any particular conditions that should be attached to an authorisation.

The local authority that is authorising the deprivation of liberty should have regard to any such recommendations when finalising the authorisation, and consider any conditions to impose on care homes
or hospitals caring for the individual.

If, following the assessments, authorisation for the deprivation of liberty is not granted, it will be unlawful to continue with the care plan that limits the individual's freedom. Steps should be taken to remedy the situation, for example, releasing the patient and returning them to their family home if possible.

If authorisation is granted, it will state how long the authorisation of the deprivation of liberty will last, up to the maximum 12 months. A Relevant Personal Representative (RPR) will be appointed and will represent and support the individual the authorisation relates to. Usually, a RPR will be a relative or a friend of the person who lacks capacity. If there is no suitable person available, the local authority must appoint someone to perform this role in a professional capacity.

Care homes and hospitals are required to monitor an individual's care closely, so a review can be requested, should the circumstances resulting in the authorised deprivation of liberty change.

The Care Quality Commission has a statutory role to monitor and report on the use of DoLS in England. However, the commission does not have explicit inspection or enforcement powers under legislation.

The impact of Cheshire West

Despite high hopes for the 'visionary' legislation that had 'the potential to transform the lives of many', the House of Lords select committee on the Mental Capacity Act described DoLS as 'unfit for purpose'. From the outset, and prior to the ruling in the case of Cheshire West and Cheshire West Coucil v P [2014] UKSC 19, DoLs were considered to be under used and overly complex, leaving many individuals without redress or protection.

In Cheshire West, the Supreme Court held that if a person is compliant to their care arrangement and raises no objections to it, the extent to which it enables the individual to live a relatively normal life within the context of their disability and the purpose of the deprivation of liberty, will be irrelevant to the considerations when assessing whether an individual's liberty had been deprived.

This marked a substantial change to the approach taken by practitioners when assessing deprivation of liberty. There is no longer the 'wriggle room' that might have been afforded in circumstances where an individual did not raise objections to a restrictive care plan. The judgment rendered many factors than had previously been considered as relevant in the assessment of deprivation of liberty, such as the number of times the individual went out of their care setting, as mute.

Since the judgement, local authorities have seen the number of applications for DoLS significantly increase, as care homes and hospitals become increasingly aware of the challenges associated with care plans that impact on an individual's freedom.

The fall of DoLS

There are a number of substantial criticisms of DoLS. The Law Commission's Consultation paper on mental capacity and deprivation of liberty highlighted that it is actually workers and carers who are required to identify and respond to deprivations of liberty. However, as demonstrated in Cheshire West, this is a complicated, technical question of fact and law.

As a result of this complexity, it is not uncommon for carers to be blindsided by the technical legal considerations associated with identifying a deprivation of liberty. There is a perception that, because deprivation of liberty is a technical legal problem, it can only be solved by a technical legal solution, rather than something that will benefit the relevant individual in any tangible way.

It is widely accepted that care homes and hospitals lack detailed knowledge when it comes to DoLS, and lack confidence in relation to identifying situations where a person's liberty is being deprived. As a result, institutions have come to rely heavily on already overburdened local authorities to identify situations when authorisation is required.

DoLS are also critiqued as they come into play when a person's liberty needs to be deprived, rather than taking steps to address the underlying cause of why a person's liberty is in question. There is an over emphasis on a paper process designed to make restrictions of liberty 'legal', rather than providing actual and real safeguards that benefit the individual.

They also have a limited application: they only apply to hospitals and care homes, excluding other care settings such as supported living. As a result of a shift in policy away from care homes and towards community based living, this issue has become more prevalent
in recent years

Furthermore, local authorities responsible for authorising deprivation of liberty may be operating under a conflict. The local authority is often the institution responsible for commissioning the care and support that deprives an individual of their liberty.

It is counter intuitive for local authorities to be in a position to authorise deprivations of liberty they have created. Arguably, a local authority will be more likely to authorise
a deprivation of liberty, rather than incurring the costs of altering a care plan.

Finally, the safeguards fall far short of being a one size fits all approach because regardless of the care setting (even if it is an intensive care hospital), they are subject to the same administrative processes as a longer term stay in a care home.

Protective Care - a completely new approach

In the light of such extensive criticism, it is not surprising that the Law Commission's consultation paper proposes to replace DoLS with a new scheme: Protective Care.

The protective care scheme aims to deliver improved health and care outcomes, while removing unnecessary bureaucracy and ensuring compliance with the Human Rights Act 1998 (HRA). Broadly speaking, the protective care scheme will adopt three different approaches suitable for different care settings.

Supportive care

Supportive care aims to protect the rights of those who lack capacity and are being moved into new accommodation, but do not require care that would restrict their liberty. The rights protected by supported care would include the right to privacy. This addresses concerns that DoLS were too heavily focused on protecting the HRA article 5 rights to liberty, in isolation with limited reference to the European Convention on Human Rights as a whole.

The motivation behind supportive care is prevention. The scheme seeks to reduce the need for more intrusive intervention further down the line where possible.

Practically, the local authority would conduct assessments to consider whether an individual is eligible to receive supportive care. If they are, they would be appointed an 'appropriate person' who would be responsible for ensuring the individual has access to any relevant review or appeal processes, keeping care and health arrangements under review, and making sure any care plans include records of capacity and best interest decisions.

Restrictive care and treatment

Restrictive Care and Treatment would be the direct replacement for DoLS. In contrast to DoLS, it would not be centred on whether there was a deprivation of liberty, but on whether care arrangements become sufficiently restrictive and intrusive so as to justify enhanced formal safeguards.

The scheme would rely on the local authority referring cases to an Approved Mental Capacity Professional (AMCP) - a revision to the role of Best Interest Assessor in relation to DoLS. The AMCP would undertake an assessment to confirm whether the proposed care of treatment should be authorised.

The AMCP would be responsible for ensuring that the decision making process and care arrangements comply with the Mental Capacity Act 2005, the Care Act 2014 and continuing health care regulations. They would also arrange regular review meetings to take place and make the necessary arrangements for an advocate or appropriate person to be appointed on behalf of the individual who lacks capacity. Furthermore, the AMCP would have the authority to discharge a person from restrictive care if necessary, and make recommendations on any care plans or treatment authorised under the scheme.

With regards to deprivation of liberty, the AMCP would need to expressly authorise the deprivation of liberty.

Palliative care

Finally, the palliative care scheme would be a separate structure designed to authorise deprivation of liberty in
a hospital or palliative care setting.
If a patient qualifies for this scheme, they could be deprived of their liberty for up to 28 days, based on the assessment of a certified medical practitioner.

The future

The Law Society published its response to the Law Commission consultation paper in November 2015, commending the Law Commission's 'comprehensive work' on the Protective Care Scheme and noted the 'justifiable' criticism aimed at the current DoLS scheme.

However, the Law Commission's report, with final recommendations for a draft bill outlining the new scheme, is not scheduled to be placed before ministers until the end of 2016.

In the meantime, despite being described as flawed and unfit for purpose, DoLS remains in place. The DoLS continue to be a complicated and controversial area of law. If there is any uncertainty of confusion, it is important to seek legal advice in the first instance. n

Katie Underhill is a solicitor in the private client department at Druces