Alex Rook Partner, Public Law Department Irwin Mitchell LLP THE DEPRIVATION OF LIBERTY SAFEGUARDS BERKSHIRE CARE CONFERENCE 16.10.2014 Alex Rook Partner, Public Law Department Irwin Mitchell LLP

Definition of ‘deprivation of liberty’ – the Cheshire West judgment Overview Legal background Definition of ‘deprivation of liberty’ – the Cheshire West judgment Authorisation - DoLS regime or Court? What next?

1. Legal background

What is a ‘deprivation of liberty’? European Convention on Human Rights - 1953 Article 5 – Right to liberty and security 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… 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.

Mental Capacity Act 2005 Legal framework governing decision making for people who lack capacity to make decisions Not a general test – capacity is time and issue specific Presumption of mental capacity unless proven otherwise All practical steps should be taken to help P reach their own decision before they are to be treated as incapable Right to make an eccentric or unwise decision In relation to DOL – the question is likely to be “does P have capacity to make decisions regarding his residence and care?” If P lacks capacity, decisions must be made in his best interests

Contrast with Mental Health Act 1983 Principally concerned with admission of patients to hospital for assessment and treatment for their mental disorder Patients detained and treated when “sectioned” Review and appeals system, mental health tribunals Many people will not fall under the MHA – e.g. learning difficulties and dementia

Introduction of the deprivation of liberty safeguards HL v UK – “the Bournewood case” Autistic man living in community Readmitted to Bournewood hospital and not sectioned under the Mental Health Act 1983 as did not resist admission Dispute about his care and treatment between hospital and carers Deprived of his liberty but not in accordance with law – no procedure, no opportunity to review conditions of his detention – not compliant with Article 5(4) Not entitled to protection/method of review under MHA

Mental Health Act 2007 Therefore, the deprivation of liberty safeguards were introduced - new scheme – Sch A1 Mental Capacity Act 2005 Sets out procedure for authorising deprivation of liberty for those lacking capacity to make decisions when MHA does not apply Provides safeguards and protection for some of most vulnerable in society

2. The definition of deprivation of liberty – Cheshire West

DOL and Cheshire West P v Cheshire West and Chester Council Previous case law established 3 elements of test for deprivation of liberty: P is “objectively” deprived of their liberty P has not consented to DoL DoL is “imputable to the state” In Cheshire West case, second and third elements not in dispute. Arguments centred on the first element.

DOL and Cheshire West Joined to the case of MIG and MEG P, an adult with cerebral palsy and Down’s syndrome, required 24 hour care to meet personal care needs. Placed in local authority community placement with 2 other residents Joined to the case of MIG and MEG Judge at first instance had introduced the idea of a ‘relative comparator’ – what is ‘normal’ for disabled people? P through the Official Solicitor appealed to the Supreme Court Supreme Court judgment handed down on 19 March 2014 - provides clarity on deprivation of liberty

DOL and Cheshire West We argued on behalf of mother of P that DoLS and court reviews ensure some of most vulnerable in society afforded protection without having to rely on own ability or family’s ability to challenge lawfulness of their detention If relative comparator/normality part of definition of DOL then fewer will enjoy procedural safeguards of DOLS Danger of widening the Bournewood gap

Cheshire West – ‘the acid test’ IS P: UNDER CONTINUOUS SUPERVISION AND CONTROL? AND NOT FREE TO LEAVE?

Not relevant to the application of the test: DOL – new law Not relevant to the application of the test: the person’s compliance or lack of objection; the relative normality of the placement (whatever the comparison made); and the reason or purpose behind a particular placement (“a gilded cage is still a cage…”)

DOL – new law Lady Hale “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”

Deprivation of liberty – the implications More people will now be considered to be deprived of their liberty Huge implications for people who are compliant with care regime – this is no longer a factor Community living/supported living - will see a big increase in DOL applications More people will enjoy protections of the safeguards and DOL reviews – less people will fall through ‘the gap’ Implications for local authority staffing, funding, administration of the DOL reviews etc. Failure to comply = potential claim for damages

3. Authorising a DOL - the deprivation of liberty safeguards (DoLS) and court authorisations

USE DoLS (Sch A1) GO TO COURT How to authorise a DOL Care home (CQC reg’d) Hospital USE DoLS (Sch A1) Community setting, e.g. supported living, or at home Complex/disputed cases, or cases involving medical treatment GO TO COURT

Requirements for standard authorisation (Sch A1) ELIGIBILITY Not eligible for treatment under MHA AGE Over 18 CAPACITY Lack capacity to make decisions re care and residence BEST INTERESTS In best interests to be deprived of their liberty. Least restrictive? MENTAL HEALTH Must be suffering from mental health disorder under the definitions in MHA 1983 NO REFUSALS Must be no valid LPA or advance decision refusing the care or treatment

DOLs procedure Ideally, prior to admission to care home/hospital, consider whether P will be deprived of liberty Prior to, or upon admission (as last resort), manager of care home or of ward, should identify potential DOL and make referral to supervisory body (local authority) Urgent authorisations are available where basic requirements are met LA will send round best interests and mental health assessor to complete full assessments, to determine whether there is a DOL, and whether in best interests. Speak to all concerned in care of P. If requirements met – standard authorisation issued

What happens next? SAFEGUARDS Best interests assessor has duty to consult the managing authority and obtain views of others If no one to speak on person’s behalf then IMCA must be appointed If authorisation recommended then can be granted for a maximum period of a year Conditions may be attached to the authorisation, e.g. ‘P must be allowed to go out with supervision twice a day’ RPR appointed S.21A appeals

Relevant person’s representative Must be appointed for the duration of the standard authorisation. Represent person for whom standard authorisation has been issued. They should maintain contact and support that person. Could be family member or IMCA. Have the right to request a review or to challenge the arrangements on behalf of P under s.21A

S.21A appeals RPR or P has authority to initiate appeal at Court of Protection if it is felt that DOL not in P’s best interests or if they think it is unlawful Application made to Court of Protection on specialist DOL forms Non-means tested legal aid available for P to challenge lawfulness of DOL Court can determine whether DOL is lawful or if, for example, P should be allowed to return home.

Court authorisation COURT AUTHORISATION For community setting/supported living Apply to Court of Protection (see Re X) Court will authorise DOL/impose restrictions Court based reviews – BJ & NJ COURT AUTHORISATION

Re X – “Post-Cheshire West” Judgment setting out procedure for making Court application to authorise DoL: Applications to be front loaded with all evidence, to include: 1. Draft Order 2. Proof that P is 16 years old and not ineligible to be DOL-ed 3. Evidence of unsound mind 4. Nature of care arrangements, treatment plan, and why this will amount to a DOL 5. Basis upon which P is said to lack capacity to consent 6. Basis upon which these arrangements are imputable to the state. 7. Best interest evidence and any less restrictive options? 8. Steps taken to notify P and all other relevant people 9. Wishes and feelings of P 10. Details of any relevant advance decision or LPA 11. Whether P eligible for legal aid 12. Identification of P's lit friend or potential lit friend 13. Any reasons for particular urgency. 14. Any other factors to be brought to the court's attention.

4. What next?

House of Lords legislative review House of Lords Select Committee – published report in March 2014 (prior to Cheshire West): Damning review of the MCA, and in particular Sch A1 Tens of thousands of people falling outside the safeguards and not benefiting from protections Recommended overhaul of the entire system Recommended new safeguards to be drawn up Recommended new independent body to oversee implementation of MCA across all public decision making

Government’s response Department of Health publishes response in June 2014 (after Cheshire West) Initially defends DOLS – says the framework is fundamentally correct Agrees to look into independent body to oversee implementation of MCA Agrees there is a lack of awareness and understanding Will ask the Law Commission to consider how DOLS could be extended to those in supported living

Contact: Alex Rook Partner, Public Law Department London Alex.Rook@irwinmitchell.com 0870 1500 100