Mental health law briefing 223 – Deprivation of Liberty Safeguards: Where are we now?
Since their inception in April 2009, the Deprivation of Liberty Safeguards (DoLS), have proved administratively problematic, particularly since the clarification given by the Supreme Court in the Cheshire West case in March 2014 where the established characteristics of a deprivation of liberty were laid out.
Baroness Hale, who delivered the primary judgment in the Cheshire West case, set out the primary test for determining the existence of a deprivation of liberty. She said that a deprivation of liberty by the State can be said to occur, in the case of a person who is not able to consent to the circumstances of their care, if:
- They are not free to leave; and
- They are under continuous supervision and control.
In reaching this conclusion, Baroness Hale said that the Court of Protection was wrong to apply what has been termed the “relative normality” approach to this question. She rejected the approach “where the life which P was leading was compared with the life which another person with his disabilities might be leading”. Baroness Hale concluded that the correct comparison was not to be made with a person of similar disability, but a person without that particular disability. She went on to say that 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, 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”, notwithstanding that those arrangements may be well intentioned and comfortable.
The result of this decision was seismic, in that the vast majority of people who lack capacity to consent to their placement (where those placements were incepted by the State and from which they are unable to leave), were given protection under the scheme. As a result the systems for assessing and authorising such deprivations of liberty operated by Local Authorities and the Court of Protection, have faced grave difficulties because of the number of applications.
In practice, as many providers will be aware, applications for authorisations are frequently met with a generic letter of apology, explaining that as a result of the decision in Cheshire West, the authority in question, owing to a lack of resource, is currently unable to deal with the request for a Standard Authorisation within the requisite time period. It should be noted that the requisite time period for the Local Authority to respond is prescribed by regulations , which provide that the Local Authority must complete the assessments within 21 days from receipt of request, except where there is an Urgent Authorisation in force, in which case the Local Authority must complete the assessments within the period permitted by the urgent authorisation.
The Court’s Solution: Re X
In April 2014, the Court notified us and others with pending applications for authorisation from the court, that numerous such applications had been bundled together, and would be heard by the President of the Family Division, Lord Justice Munby, on the 8 May 2014. This unusual step was taken by the President, with a view to “streamlining” the process, particularly in the case of non-contentious applications for Authorisations. At this hearing, the Court embarked upon a largely academic exercise (as observed by the Court of Appeal upon review), in order to determine an appropriate process by which the individuals’ rights could be properly protected whilst at the same time minimising the resource impacts upon the systems in place. This case came to be known as Re X, and upon its eventual conclusion in October 2014, resulted in the introduction of a streamlined process whereby non-contentious cases (where everybody agreed that the deprivation of liberty and care package was in the best interests of the person concerned), could be approved on paper by the Court without the need for oral hearings or the joinder of the individual concerned to the proceedings as a respondent.
On the 16 June 2015, the exercise undertaken by the Court of Protection in the Re X case, became the subject of an appeal. The appeal predominately centred upon the decision of the President, indicating that the individual concerned need not be joined as a respondent to the proceedings. The Court of Appeal, determined that there was no “decision” to appeal in this case. However, the Court of Appeal did give an indication of how they would have decided the matter, had they had the jurisdiction to have done so. The Court of Appeal stated that the individual concerned should, in every case where the matter concerns the deprivation of his/her liberty, be joined to proceedings so as to have a voice within those proceedings. Not unlike the reasoning of Baroness Hale in the Cheshire West case, they made an analogy between respondents to criminal proceedings where that person’s liberty was in question, and also to secure accommodation proceedings conducted under the auspices of the Children Act. They said in each of those two cases the person whose liberty was at stake, was always joined to proceedings and that this was in their opinion a fundamental requirement of the right to liberty guaranteed by Article 5 of the European Convention of Human Rights.
This decision, albeit given on an obiter basis, put the brakes upon the implementation of the new streamlined system (and related forms and practice directions), that had been commissioned following the judgment of the President in the Re X case.
The Court of Protection’s response
The issue as to whether or not the individual concerned should be joined as a party to proceedings seeking to authorise the deprivation of that individuals liberty, poses some practical problems, particularly that relating to the appointment of a person suitably able to advocate on the individuals behalf. The current Court of Protection rules provide that the Court is capable of appointing a “litigation friend”, to act on behalf of the individual, providing that person is suitably capable of conducting proceedings on behalf of the individual concerned. In practice this can be a family member, although is not so in every case, as: (a) it is dependent upon availability, and (b) those closer to the individual will often have a direct interest one way or another and there is a question mark as to whether such a person is able to act in a neutral manner.
Where there is no suitable person to be appointed as a litigation friend, the Official Solicitor will be invited to act as that person’s litigation friend, and will invariably delegate this task to a solicitor with competency in this area of work. The role of litigation friend (whether through the Official Solicitor or some other person) is further complicated by hurdles to legal representation, particularly in terms of entitlement to legal aid. The effect of this in practice is that requests for Authorisations or challenges can be delayed for months with no guarantee that a suitable litigation friend will be found.
Concerns have been raised by the Law Society and others as to whether: (a) litigation friends were, by law, able to conduct proceedings (usually an activity reserved to solicitors and barristers), and whether, if they were, (b) the absence of a legal advisor to the litigation friend would serve to compromise the procedural safeguard necessary to adequately ensure that the individual concerned has his or her voice properly heard within the proceedings.
The Court of Protection, with all of these issues in mind, listed together a number of cases with a view to shedding some light upon these questions and practical difficulties, and gave judgment at the end of September 2015.
The case is referred to in short form as Re NRA , and has concluded that the Court of Appeal did not have before it all the information regarding these practical difficulties in order to reach the conclusion that it did. The Court of Protection said that they were not bound by the findings of the Court of Appeal, and preferred to apply and adopt the streamlined procedure (with some amendment) proposed by the President (whereby information is gathered as to the circumstances of the care package, the views of the individual and others concerned, and a statement as to principles of least restriction). The Court said that there was no need to join the individual concerned as a respondent to proceedings on non-contentious cases, and that their voice could properly be secured by the appointment of a Litigation Friend who need not be legally represented. The Court stressed the benefits of family involvement in that family members are often best placed to advocate on behalf of their loved ones, and are similarly well situated for the purpose of an ongoing review of the suitability of any care package.
Whilst these observations may be of interest to lawyers, it does very little to reassure providers, many of whom will have many DoLS applications outstanding. It seems to us that while the process may be streamlined from a Court perspective, it will still entail a considerable amount of work on behalf of both Local Authorities and care providers, and will really only apply to situations where the deprivation of liberty is occurring in the home environment.
The streamlined process will not (save in cases where the DoL is in a person’s home), take any of the work away from the Local Authority and we are stuck for the time being with the system in place.
Whilst there is are risks to those looking after persons potentially deprived of their liberty because they have not been able to obtain a formal Authorisation, these risks will generally be low, particularly where the provider has made the referral/request for a standard authorisation in good time. The delay is a matter for the Local Authority who is, arguably, responsible for any consequential losses to the individual concerned.
In terms of loss and/or any award of damages, whilst each situation will turn on its own particular facts, there will generally be an argument that the circumstances in which the person is receiving care is unlikely to have changed, notwithstanding the failure of the Local Authority to complete an assessment in time, and therefore it will presumably often be very difficult for a claimant to establish any loss in these circumstances.
It will nevertheless be important for care providers to liaise with their Local Authorities to process any backlog, and make attempts to minimise (within safe bounds) the restrictions in place pending assessment.
These deficits in the current system have been recognised and the Law Commission are currently in the process of considering the responses to the consultation which closed on the 2 November 2015, with a view to reforming and simplifying the system. Whether new legislation is passed, and when, remains to be seen.
This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.