MCA/DOLS Update

Report
THE 200-YEAR PARALLEL
 Madhouses Act 1774 –
drop in inspections
 Health and Social Care Act
2008 – drop in inspections
 1814: York Asylum and
Bethlem Hospital
 2006: Cornwall. 2012:
Winterbourne view
 Parliamentary Select
Committee 1815 – scathing
 Parliamentary Select
Committee 2014: scathing
 Response = asylums
 Response = “deprived”
ARTICLE 5 ECHR
1. Everyone has the right to liberty and security of person. No
one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law: …
(e) the lawful detention … of persons of unsound mind…
2. Everyone who is arrested shall be informed promptly, in a language which he or
she understands, of the reasons for his arrest and of any charge against him…
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to
take proceedings by which the lawfulness of his detention shall be decided speedily
by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the
provisions of this article shall have an enforceable right to compensation.
Prescribed procedures are MHA (hospitals), DOLS (hospitals
and care homes) and COP order (anywhere if eligible). NB
inherent jurisdiction (gap-filler).
A MATTER FOR PARLIAMENT?
 JUSTICE, Mental Health Bill Briefing for House of Lords Second
Reading (November 2006):
“89. … if it is known that a person will be taken from their home
to a place where they will be prevented from leaving, and complete
and effective control will be exercised over their movements, that
person is deprived of liberty from the point of removal from their
home.”
 Government’s response, Appendix 3:
“52. The Department considered defining deprivation of liberty in
the statute but felt that this was not possible. There is no definitive
legal test for what will amount to a deprivation of liberty within the
meaning of Article 5 of the Convention.”
 Hence, MCA 2005 s.64(5):
“In this Act, references to deprivation of a person’s liberty have the
same meaning as in Article 5(1) of the Human Rights Convention.”
1.
2.
3.
DEPRIVATION OF “LIBERTY”?
“Liberty means the state or condition of being free from
external constraint. It is predominantly an objective state. It
does not depend on one’s disposition to exploit one’s freedom.
Nor is it diminished by one’s lack of capacity” (paragraph 76).
 Liberty is objectively intrinsic to the person.
 Is this different to “physical liberty”?
 Has the Supreme Court conflated loss of liberty with loss
of autonomy?
DEGREE OR INTENSITY
Article 5
“LIBERTY”: AN OBJECTIVE NOTION
“If it would be a deprivation of my liberty to be obliged to live
in a particular place, subject to constant monitoring and control,
only allowed out with close supervision, and unable to move
away without permission even if such an opportunity became
available, then it must also be a deprivation of the liberty of a
disabled person. The fact that my living arrangements are
comfortable, and indeed make my life as enjoyable as it could
possibly be, should make no difference. A gilded cage is still a
cage.”
(1) THE OBJECTIVE ELEMENT:
THE ACID TEST
Confined to a particular restricted space for a not negligible
length of time? Consider type, duration, effect, manner of
implementation of measures. Essential ingredients:
1. Under continuous/complete supervision and control, AND
2. Not free to leave (to live wherever and with whomever they
want)
The following are not relevant to the acid test:
 Whether they comply or object
 Relative normality of the placement
 Reason or purpose behind a placement
CHESHIRE WEST P:
DEPRIVED OF LIBERTY
 Adult with Down’s syndrome, cerebral palsy, and learning
disability lived in a spacious bungalow with two other residents,
with two members of staff on duty during the day and one
‘waking’ member of staff overnight.
 Required prompting and help with all the activities of daily living,
getting about, eating, personal hygiene and continence.
 On occasion required further intervention including restraint to
stop him harming himself, but was not prescribed any
tranquilising medication.
 Unable to go anywhere or do anything without one to one
support; he got 98 extra hours a week of personal support to
enable him to leave the home frequently for activities and
socialising.
SURREY MEG:
DEPRIVED OF LIBERTY
 A 17 year old with mild learning disabilities living with three
others in an NHS residential home for learning disabled
adolescents with complex needs. She had occasional outbursts of
challenging behaviour towards the other three residents and
sometimes required physical restraint.
 Prescribed (and administered) tranquilising medication. She had
one to one and sometimes two to one support. Continuous
supervision and control was exercised so as to meet her care
needs.
 She was accompanied by staff whenever she went out. She
attended a further education unit daily during term time, and had
a full social life. She showed no wish to go out on her own, and
so there was no need to prevent her from doing so.
SURREY MIG:
DEPRIVED OF LIBERTY
 18 year old with a moderate to severe learning disability and
problems with her sight and hearing, who required
assistance crossing the road because she was unaware of
danger, living with a foster mother whom she regarded as
‘mummy.’
 Her foster mother provided her with intensive support in
most aspects of daily living. She was not on any
medication. She had never attempted to leave the home by
herself and showed no wish to do so, but if she did, her
foster mother would restrain her.
 She attended the same further education unit daily during
term time and was taken on trips and holidays by her foster
mother.
(2) SUBJECTIVE ELEMENT
 Not validly consented to the confinement in question.
 Cannot validly consent if lacking capacity:
1. Do they have a temporary or permanent impairment or
disturbance affecting the functioning of mind or brain?
2. Are they unable to make a decision for themselves in relation to
the matter? Unable to make a decision if unable to:
- Understand the information relevant to the decision (includes
information about the reasonably foreseeable consequences of
deciding one way or another, or failing to make the decision), OR
- Retain that information (retention for short period does not
prevent him from being regarded as able to decide), OR
- Use or weigh that information as part of the process of making the
decision, OR
- Communicate the decision (whether by talking, using sign language
or any other means).
3. Is this because of the impairment/disturbance?
(2) SUBJECTIVE ELEMENT
M v Ukraine (Application no. 2452/04) 19 July 2012
“77. [T]he Court takes the view that a person’s consent to
admission to a mental health facility for in-patient treatment can
be regarded as valid for the purpose of the Convention only
where there is sufficient and reliable evidence suggesting that the
person’s mental ability to consent and comprehend the
consequences thereof has been objectively established in the
course of a fair and proper procedure and that all the necessary
information concerning placement and intended treatment has
been adequately provided to him.
78 … There is no evidence suggesting that her mental ability to
consent was established, that the consequences of the consent
were explained to her or that the relevant information on
placement and treatment was provided to her.
79. In these circumstances the Court considers that the
applicant’s consent to the fourth hospitalisation cannot be viewed
as valid and lawful for the purpose of the Convention.”
(3) STATE IS RESPONSIBLE
 Directly responsible:
 Hospitals and care homes (whether they are public or private
is irrelevant for these purposes).
 Person is placed by a public authority.
 Providing more than negligible care?
 Indirectly responsible (eg failing to investigate, support or
refer):
 Failing to take steps to investigate whether this is a DOL
 If there is a DOL, failing to take measures to bring it to an
end, eg by providing support services for carers to minimise
inappropriate restrictions
 If there is a DOL that cannot be avoided, failing to refer to
court to have the DOL authorised.
ADMINISTRATIVE DETENTION:
DOLS (HOSPITALS AND CARE HOMES)
60000
50000
40000
30000
Requests
Authorisations
20000
10000
0
2009-10 2010-11 2011-12 2013-14 Apr-Sept
2014
only
JUDICIAL DETENTION:
COURT OF PROTECTION AUTHORISATIONS
35000
30000
25000
20000
Applications
15000
10000
5000
0
2013-14
2014-15
2015-16
IMPLICATIONS
 Care homes
 Hospitals – general and psychiatric wards
 Mental Health Act 1983
 Supported living arrangements
 Own homes
 Foster placements and shared lives schemes
 Residential schools and further education colleges
 Children’s homes
A MATTER OF POLICY
Cheshire West and Surrey:
“57. Because of the extreme vulnerability of people like P, MIG
and MEG, I believe that we should err on the side of caution in
deciding what constitutes a deprivation of liberty in their case.
They need a periodic independent check on whether the
arrangements made for them are in their best interests. Such checks
… are a recognition of their equal dignity and status as human
beings like the rest of us.”

Long term: need to de-link safeguards from the prison paradigm of Article 5.

Meanwhile, lessons from history =
 Be alive to the risk of social stigma
 Ensure Article 5 does not delay or inhibit the provision of care
 Do not rubber stamp!!
“10 … Legal formalities may be seen as the antithesis of the normalisation
which it is the object of both the Mental Health and the Mental Capacity
Acts to achieve.”
LONDON BOROUGH OF HILLINGDON V NEARY
[2011] EWHC 1377
“… the issue that arises under Article 8 represents the nub of the matter. The
principles surrounding the right to respect for family life are well understood.
They do not owe their origins to the Mental Capacity Act 2005 or even, I would
suggest, to the Human Rights Act 1998, and they apply directly to cases where the
legitimacy of removal of a person from a family is in question …
There will of course be cases where a grave breach of Article 5 overshadows
consequences in terms of Article 8, but this will not always be so. In the present
case, it seems to me that the real issue relates to Steven’s absence from his family
home, rather than the deprivation of liberty to which he is to some degree or
another necessarily subject wherever he lives.
In saying this, I do not imply that deprivation of liberty issues are unimportant in
Steven’s case. But by viewing the case primarily through the prism of art 5 one
risks repeating a central fallacy and conflating the secondary question of whether
a person is lawfully deprived of his liberty with the primary question of where he
should be living.”
ARTICLE 8
1. Everyone has the right to respect for his private and family
life, his home and his correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others.
DOLS IS NOT THE ANSWER TO ARTICLE 8
 DOLS is an article 5 procedure and cannot resolve article 8 disputes
(eg as to residence or contact):
 DOH Briefing, ‘DOLS - the early picture’ (April 2010): other than as a
very short-term measure, DOLS should not be relied on to manage no
contact cases. Go to Court of Protection.
 London Borough of Hillingdon v Neary and others [2011] EWHC 1377:
“Significant welfare issues that cannot be resolved by discussion should
be placed before the Court of Protection…”
 C v Blackburn with Darwen BC [2011] EWHC 3321: “…it is not in my view
appropriate for genuinely contested issues about the place of residence
of a resisting incapacitated person to be determined either under the
guardianship regime or by means of a standard authorisation under the
DOLS regime.” Go to Court of Protection.
SUBSTANTIVE PROTECTION
Lester et al, Human Rights Law and Practice (2009) para 3.10:
1. The objective must be sufficiently important to justify
limiting a fundamental right;
2. The measures designed to meet the objective must be
rationally connected to that objective - they must not be
arbitrary, unfair or based on irrational considerations;
3. The means used to impair the right or freedom must be no
more than is necessary to accomplish the legitimate
objective - the more severe the detrimental effects of a
measure, the more important the objective must be if the
measure is to be justified in a democratic society.
INTERFACE: ARTICLE 8 AND BEST INTERESTS?
Re Connor [2004] NICA 45, [29]:
 Whether the interference can be justified involves an approach which is
quite different from a best interests assessment.
K v LBX [2012] EWCA Civ 79:
 The right approach under the MCA 2005 is to “ascertain the best interests
of the incapacitated adult on the application of the section 4 checklist. The
judge should then ask whether the resulting conclusion amounts to a
violation of Article 8 rights and whether that violation is nonetheless
necessary and proportionate.”
Westminster City Council v Manuela Sykes [2014] EWHC B9:
 “Once this court has completed its analysis of Ms S’s best interests under
the MCA, it must satisfy itself that any infringement of her Article 5 and
/or Article 8 rights which arises from its (provisional) conclusion is
necessary and proportionate”.
SUBSTANTIVE PROTECTION
 Adds an emotional dimension to MCA s.4 best interests
checklist: FP v GM and a Local Health Board [2011] EWHC
2778.
 Requires public care to be of better quality then private
care, welfare being the paramount consideration? Re S (adult
patient) (inherent jurisdiction: family life) [2002] EWHC 2278
(Fam). But note K v LBX [2012] EWCA Civ 79.
 Guards against undue delay, eg in assessing capacity: City of
Sunderland v MM [2009] COPLR Con Vol 881.
 Reinforces right of access to the court.
 Promotes personal contact between person and court: X
and Y v Croatia (app no. 5193/09, 2011).
PROCEDURAL PROTECTION
 Consider the views of those interested in P’s welfare so far
as this is practicable and appropriate: MCA s.4(7).
 G v E, Manchester City Council and F [2010] EWHC 621:
“88… Article 8 gives the families of such adults (and by “families”
I include relationships between such adults and long-term foster
carers) not only substantive protection against any inappropriate
interference with their family life but also procedural safeguards
including the involvement of the carers in the decision-making
process, seen as a whole, to a degree sufficient to provide them
with the requisite protection of the families' interests. If they have
not, there will have been a failure to respect the family life of the
incapacitated adult (and of course the carer.)”
 This reinforces the procedural dignity afforded to P’s family
members whose Article 8 rights are also being interfered
with.
“IN ACCORDANCE WITH THE LAW”
J Council v GU and others [2012] EWHC 3531
 “George” had paedophilia which manifested itself through compulsive letter
writing about child sex fantasies.
 In private care home where he was strip-searched, and had his
correspondence and telephone conversations monitored.
Were these Article 8 interferences “in accordance with the law”?
“... not every case where there is some interference with Art 8 rights in the
context of a deprivation of liberty authorised under the 2005 Act needs to have
in place detailed policies with oversight by a public authority… But where there is
going to be a long-term restrictive regime accompanied by invasive monitoring of
the kind with which I am concerned, it seems to me that policies overseen by the
applicable NHS Trust and the CQC akin to those which have been agreed here
are likely to be necessary if serious doubts as to Article 8 compliance are to be
avoided.
52-page policy document written to address the issues.
IN SUMMARY
 Supreme Court: policy decision to use the right to liberty
(article 5) to protect vulnerability to abuse (article 3).
 Eye-watering implications and challenges.
 Need to learn the lessons of history.
 Nub of the matter is article 8: where should they be living?
 Article 8 provides substantial substantive and procedural
safeguards.
Thank you.
[email protected]

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