Mental capacity & welfare

Court of Protection: the Supreme Court’s test for Deprivation of Liberty

At last we have the Supreme Court judgment in the “deprivation of liberty” cases of P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents) and P and Q (by their litigation friend the Official Solicitor) v Surrey County Council (Respondent) and it was certainly worth the wait. Lady Justice Hale gave the lead judgment and it is clear and accessible.  She affirms “The whole point about human rights is their universal character” and that the European Conventions are “premised on the inherent dignity of all human beings whatever their frailty or flaws”.  She goes on to say “Far from disability entitling the state to deny such people (those with disabilities) human rights: rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities”.

In both cases the Supreme Court rejected the “relative normality” approach of the Court of Appeal. They concluded unanimously in Cheshire West that P (who lived in supervised accommodation arranged by the local authority) was deprived of his liberty. The decision in P and Q v Surrey County Council was more contentious but the majority decision was that both sisters P (who lived with her foster parents) and Q (who lived in a registered care home) were being deprived of their liberty. Having regard to the quality of accommodation and care, Lady Justice Hale said “We should not let the comparative benevolence of the living arrangements with which we are concerned blind us to their essential character if indeed that constitutes a deprivation of liberty”.

Following a very helpful potted history of the “deprivation of liberty” principles that have come out of Strasbourg, Lady Justice Hale asked “what is the essential character of a deprivation of liberty?” The Supreme Court  concluded that “the twin features of continuous supervision and control and lack of freedom to leave are the essential ingredients of deprivation of liberty.  In the words of Lady Justice Hale “A gilded cage is still a cage.”

In her evidence to the House of Lords Select Committee solicitor Nicola Mackintosh said that she thought “tens of thousands” of people who lacked capacity were deprived of their liberty and were being unlawfully deprived because of the failure of local authorities to comply with the requirements of the Mental Capacity Act 2005 (MCA) and apply the Deprivation of Liberty Safeguards (DOLS) or apply to the court for authorisation.  The vast majority of these “tens of thousands” will be elderly people who no longer have the capacity to decide where they should live or the care and treatment that they need and have been moved from their own homes into residential care, often as a result of a decision by social services. Many, almost certainly the vast majority, will be compliant with the arrangements that are made for them and will not complain even though these arrangements may mean that they are under “continuous supervision and control (of care home staff) and lack the freedom to leave (if they tried they would be stopped or brought back) and as such, in the conclusion of the Supreme Court, they are being deprived of their liberty.

As Lady Justice Hale said, it is not nice and feels uncomfortable to think that we, as family members or as social workers or other professionals, may be making arrangements that constitute a deprivation of liberty, even for the best of reasons and intentions.  To protect our frail and most vulnerable in society arrangements that result in “continuous supervision and control” with a lack of freedom to leave will often be necessary and in a person”s best interests. That is why it is so important that local authorities (the Supervisory Body) comply with the requirements of the MCA and ensure that the DOLS are properly applied, even to the compliant and those who do not complain.  Care homes too, as the Managing Authority under the DOLS regime, also need to be far more proactive in recognising when a resident is being deprived of his or her liberty  and apply for the necessary DOLS Authorisation.  The Care Quality Commission needs to step up to the mark too:  when they are inspecting residential and nursing homes, they should consider whether the Deprivation of Liberty Safeguard Authorisations are being appropriately applied.  And of course, whether there is a DOLS authorisation in place or not, if there is any dispute about the care arrangements (whether with P or his or her family) then the matter must be brought before the court as quickly as possible.

I agree wholeheartedly with the House of Lords” recommendation that the DOLS measures in the Act should be repealed and replaced with measures that are clearer and in keeping with the principles of the MCA. But perhaps in the meantime, if the DOL Safeguards were applied positively and as a matter of routine, rather than exceptionally as they presently are, they would lose their stigma.  Our most vulnerable citizens would then have their rights €“ including their right to liberty €“ lawfully protected.

€“ including their right to liberty – lawfully protected.

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