5. Deprivation of Liberty under the Mental Capacity Act 2005
5. Deprivation of Liberty under the Mental Capacity Act 2005
- Peter BartlettPeter BartlettNottinghamshire Healthcare NHS Trust Professor of Mental Health Law, University of Nottingham
- and Ralph SandlandRalph SandlandAssociate Professor in Law, University of Nottingham
This chapter discusses amendments to the Mental Capacity Act (MCA 2005), introduced in the Mental Health Act 2007, which are generally known as the Deprivation of Liberty Safeguards (DOLS). It begins with an overview of the DOLS and then considers the triggering issue for the applicability of the DOLS, namely whether there is a deprivation of liberty. The chapter outlines the six requirements for application of the DOLS: (i) age requirement; (ii) mental health requirement; (iii) mental capacity requirement; (iv) best interests requirement; (v) no refusals requirement; and (vi) eligibility.
Chapter 4 discussed decision-making in general for people lacking capacity. The current chapter extends that discussion to situations where the decisions taken involve depriving the person lacking capacity of his or her liberty. The last chapter argued in part that whatever the intent of the Mental Capacity Act 2005 (MCA 2005), the jurisprudence under the Act has been animated by concerns regarding safeguarding of vulnerable adults. The present chapter can be understood in part as a continuation of those concerns, but the resulting deprivation of liberty engages additional legal requirements and legal safeguards. These are embodied in amendments to the MCA 2005 introduced in the MHA 2007, and are generally known as the Deprivation of Liberty Safeguards or more briefly by the corresponding acronym ‘DOLS’.
On its face, the DOLS may appear to overlap with detention under the MHA 1983, discussed in Chapter 6. Both are, after all, ways in which people with mental disabilities may be deprived of their liberty. The interplay between the two systems is complex, and will be discussed as it arises both later in this chapter and in Chapter 6. For the present, Table 5.1 provides some general points that may be useful in distinguishing the two systems. Key to the differences are that deprivation of liberty under the DOLS are to be in the best interests of people lacking capacity, and while most frequent in care homes, can occur anywhere. Such detentions are not necessarily with an eye to the provision of medical treatment. Sectioning under the MHA 1983 must be to a psychiatric hospital or psychiatric ward of a general hospital only, either for the treatment for the mental disorder or for assessment with a view to treating the mental disorder. Where the DOLS require that the individual lack capacity to decide on admission, sectioning under the MHA 1983 instead requires the presence of a mental disorder of sufficient severity to warrant detention in the interests of the person’s health, safety, or for the protection of others. These are conceptually quite different categories.
Table 5.1 should be read as introductory only. Complications arise for example when a DOLS admission is made to a psychiatric hospital (where the DOLS ‘eligibility requirement’ comes into play). Similarly, people who are released from hospital where they have been detained under the MHA 1983 may still be subject to MHA controls
Table 5.1 Deprivation of Liberty: DOLS versus MHA 1983
DOLS under MCA 2005
Most usually care homes, but anywhere—restrictions apply to use in hospitals for psychiatric treatment
To psychiatric hospitals and psychiatric wards of general hospitals only
Threshold criterion regarding condition of individual
A mental disorder rendering the person incapable of making a decision regarding admission
Mental disorder of severity warranting detention—individual may or may not lack capacity
Diagnostic restrictions if individual has a learning disability
No restriction—any learning disability resulting in incapacity will suffice to meet this criterion
For detention beyond 28 days concerning a learning disability it must result in abnormally aggressive or seriously irresponsible conduct
Diagnostic restriction: alcohol and drugs
No restriction? (some dispute—see chapter 4.4.1)—if so, lack of capacity flowing from drugs or alcohol would meet this criterion
Dependence on alcohol or drugs is not of itself a mental disorder under the MHA 1983
Threshold criterion regarding appropriateness of detention
Detention is in best interests of person
Mental disorder warrants admission for assessment (for detention up to 28 days); warrants admission for treatment for the mental disorder and treatment is available (if detention extends beyond 28 days)
DOLS themselves silent, but rest of MCA 2005 applies (see Chapter 4), so person competent to make decision may consent or refuse consent; person lacking such capacity may be treated in best interests under Act
Most treatments for mental disorder may be given without consent, with procedural safeguards taking effect after 3 months. For treatments not related to mental disorder, MCA 2005 applies (see Chapter 9)
If detension to hospital or care home, by DOLS-approved doctor and DOLS-approved best interests assessor. Otherwise by court order.
By two doctors (at least one of whom has special expertise and qualification) and approved mental health professional. After 28 days, ‘nearest relative’ can challenge detention
To Court of Protection
To specialist review tribunal
(either through community treatment orders or requirements flowing from leave of absence provisions, for example), and the MHA may therefore extend into territory where one would expect the DOLS to hold sway. Table 5.1 thus provides a broad starting point only.
5.1.1 HL, the European Convention on Human Rights, and the deprivation of liberty
The introduction of the DOLS was enforced onto Parliament by the decision of the European Court of Human Rights in HL v United Kingdom, application no. 45508/99, (2005) 40 EHRR 32 (also called ‘Bournewood’, based on the title of proceedings in the prior domestic litigation). Before this case, there was no formal legal structure controlling the admission of people without capacity to care homes or to hospitals on an informal basis, and no formal constraints on the care of people lacking capacity outside institutional settings such as in private homes. Certainly, the law of wrongful confinement existed, but as the domestic Bournewood litigation showed, it had not been applied or considered in the context of the care of people lacking capacity, and its scope had therefore never been tested. Further—and this was the dispute in the Bournewood case itself—there was no established mechanism to arbitrate disputes about whether specific institutional care was appropriate or not.
In the Bournewood case, HL, an adult with profound developmental disabilities, lived with paid carers who treated him as a family member. HL had a history of becoming agitated coupled with mild self-harm, which the family had been able to control in the three years that HL had lived with them. While at a day centre, he became agitated and was admitted as an informal patient to a psychiatric facility. While agitated in the admission ward, he was generally compliant, and did not attempt to leave the acute ward following the admission. Had he made such a move, formal confinement proceedings would have been commenced, and HL would not have been allowed off the premises; but such formal proceedings had not been necessary. Notwithstanding repeated requests by the family of carers for HL’s return, the hospital refused to discharge him into their care, and for a number of months, the family were not permitted to visit HL, in part because of a concern by the hospital that he would try and leave with them at the end of such a visit.
At issue in the domestic litigation was whether individuals such as HL, who acquiesced rather than assented to their admission and who lacked the capacity to make a decision as to where they would reside in any event, could be admitted informally and remain in hospital under these circumstances or whether they had to be sectioned under the formal confinement powers of the MHA 1983. Before the European Court of Human Rights, it was whether these conditions engaged the right to liberty under Article 5 of the ECHR.
The House of Lords held that the MHA 1983 envisaged the informal admission of acquiescing incapable patients: R v Bournewood Community and Mental Health Trust, ex p L  3 WLR 107 (HL). Lord Goff reached this view by citing paragraph 291 of the Percy Commission report, the report that led to the 1959 Mental Health Act (Royal Commission, 1957). Certainly, it does seem that the Percy Commission did advocate informal admission, not merely for assenting patients, but for ‘all who need [treatment] and are not unwilling to receive it’ (Royal Commission, 1957: para. 291). As a general principle, this interpretation of the Percy Commission is beyond reproach.
The House of Lords then approached the case in the context of wrongful confinement. In that context, Lord Goff held that any question of detention of HL would have arisen only had he attempted to leave the hospital, which he did not. Further, any confinement that would have occurred would in this case have been justified by the developing ‘inherent jurisdiction’ of the court, the principles of best interests and necessity derived from F v West Berkshire Health Authority  2 All ER 545. It is much less obvious that the House of Lords was correct in these aspects of HL’s case (see Bartlett, 2003). The Percy Commission expressly addressed the situation of a family member asking for the release of an incompetent, acquiescing patient. In the event that the family member was the nearest relative, the Commission stated that ‘there can be no question of a barring certificate, even on grounds of danger to the patient or to others, in relation to patients admitted informally, whom the hospital has no authority to detain’ (para. 305 (ii)). If the person requesting were not the nearest relative, it would seem that the patient should nonetheless be released if the individual had made reasonable plans to care for the patient (para. 305(iv)). The House of Lords was apparently not referred by counsel to this paragraph of the Percy Report, and it is not referred to in its judgment. In any event these aspects of the House of Lords judgment are largely superseded by the decision of the European Court of Human Rights.
The result of the House of Lords decision was the ‘Bournewood gap’—a situation where people lacking capacity could be admitted to intrusive institutional care without the benefit of procedural safeguards. While the House of Lords held on a 3:2 majority that this situation was legal, even some of the judges in the majority were not enthusiastic about the situation: see judgment of Lord Nolan  3 WLR 107 at 122.
220.127.116.11 Article 5 of the European Convention on Human Rights
An appeal was launched to the European Court of Human Rights on behalf of HL, alleging a violation of the right to liberty under Article 5 of the ECHR. This Article will be at issue on numerous occasions in the central chapters of this book, and a general indication of its scope and core jurisprudence relating to mental disability is therefore appropriate now both for the current discussion and as a basis for those later arguments.
Article 5(1) provides that no one will be ‘deprived of liberty’ except in specified situations ‘in accordance with a procedure proscribed by law’. Two of the situations are primarily relevant for the purposes of mental health law. The first, Article 5(1)(a), allows the detention of persons following conviction. Such detentions will be relevant in discussions of detention of criminals with mental disability under Part 3 of the MHA 1983 (see Chapter 8), but it is not relevant for HL. For present purposes, and of primary importance for mental health law generally, is Article 5(1)(e), which allows for the ‘lawful detention of...persons of unsound mind.’
Article 5 goes on to provide a set of rights arising when liberty is curtailed. Of present relevance, Article 5(2) provides a person who is arrested the right to be informed, in a language which he or she understands, the reasons for the arrest and of any charge against him or her, and Article 5(4) provides that anyone deprived of liberty ‘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.’ Article 5 therefore provides both restrictions to the situations in which a deprivation of liberty may occur, and procedural protections prior to, at the time of, and following the deprivation of liberty.
While the ECHR took effect in 1953, it is not until 1979 that the first case involving persons of unsound mind was decided by the Strasbourg court. What began as a trickle has now become, if not a flood, at least a very significant stream, and a detailed discussion of that case law is outside the scope of the current discussion. Some elaboration will occur as issues arise in the remainder of this volume, but for a fuller and systematic discussion, see Bartlett, Lewis and Thorold (2006). While subsequent case law provides considerable elaboration, that initial case, Winterwerp v the Netherlands (Application No. 6301/73, judgment 24 October 1979, (A/33) (1979–80) 2 EHRR 387) still provides the basic structure for interpreting Article 5 in the context of mental disability.
Winterwerp requires that ‘unsoundness of mind’ must flow from a ‘true mental disorder’, determined by ‘objective medical expertise’ (para. 39). The expertise does not need to be from a psychiatrist; the view of a general practitioner will suffice (Schuurs v the Netherlands (1985) 41 D & R 186, 188). The English courts have recently expanded this permitted expertise to include psychologists with relevant expertise in the case of learning disability (G v E  EWCA Civ 822, para. 60). This extension has not been tested in the Strasbourg court, although if the intent of the Winterwerp criteria is to ensure objective and informed expertise, an argument can be made for the position in G. While the Strasbourg Court is prepared to take a reasonably wide view of what constitutes unsoundness of mind, an objective basis demonstrating a disorder does appear to be required. Mere eccentricity or social deviance, for example, would not suffice (Winterwerp at para. 37). The disorder must be ‘of a kind or degree warranting compulsory confinement’ (Winterwerp at para. 39). This criterion may be met either because the person would be dangerous if left at large, or because of a sufficient need for medical treatment (see Hutchison Reid v the United Kingdom, Application No. 50272/99, judgment 20 May 2003, (2003) 37 EHRR 9, para. 52). Further, deprivation of liberty must be the least restrictive option available under the circumstances (Varbanov v Bulgaria, Application No. 31365/96, judgment of 5 October 2000; Ťupa v Czech Republic, Application No. 39822/07, judgment of 26 August 2011, para. 48) and a proportional response, appropriately balancing the interests of the individual and society as a whole (Witold Litwa v Poland (2001) 33 EHRR 53, para. 78). In cases of emergency, a reasonable period is permitted following the detention for the medical assessment to occur.
The deprivation of liberty must be in accordance with a ‘procedure prescribed by law’ (Article 5(1)), taken by Winterwerp to mean consistent with the express and implied principles of the ECHR as a whole, being fair and proper, and protecting the individual from arbitrariness (Winterwerp, para. 45). This is taken to mean that a person should be able, with appropriate advice if necessary, to foresee the probable consequences of a given course of action (Kawka v Poland, Application No. 25874/94, judgment on 9 January 2001, para. 49).
The continued deprivation of liberty is justified only if a mental disorder of sufficient severity continues to exist (Winterwerp, para. 39). As the nature and degree of mental disorders may change over time, therefore the access to a court or tribunal guaranteed by Article 5(4) must arise on a periodic basis. Quite how frequently has not been finally determined by the Court, but it would seem that a review should be available promptly upon the initial detention (that is, within something like one to two weeks), and something like annually thereafter. There is a right to legal representation at these hearings (Winterwerp at para. 60), and while the court has not affirmed a right to universal legal aid in such proceedings, it has been sympathetic in requiring that the state provide representation in a number of cases brought before it (see, e.g. Megyeri v Germany Application No. 13770/88, judgment of 12 May 1992, (1992) 15 EHRR 584, para. 23; Pereira v Portugal, Application No.44872/98, judgment of 26 February 2002, (2003) 36 EHRR 49, paras. 58–61).
18.104.22.168 The HL decision and the limits of Article 5
In HL, the European Court of Human Rights took the view that whether or not the situation constituted a violation of the English law of wrongful detention, HL was deprived of liberty under Article 5 of the ECHR. Article 5 rights were specifically not dependent on whether the individual manifested a wish to leave the facility (HL v United Kingdom, Application no. 45508/99, judgment on the 5 January 2005, (2005) 40 EHRR 32, para. 90).
The standards in the jurisprudence cited so far in this chapter was therefore relevant to HL’s case. In the view of the Court, the existing law did not provide adequate procedures (para. 120):
In this latter respect, the Court finds striking the lack of any fixed procedural rules by which the admission and detention of compliant incapacitated persons is conducted. The contrast between this dearth of regulation and the extensive network of safeguards applicable to psychiatric committals covered by the 1983 Act [MHA] (paragraphs 36 and 54 above) is, in the Court’s view, significant.
In particular and most obviously, the Court notes the lack of any formalised admission procedures which indicate who can propose admission, for what reasons and on the basis of what kind of medical and other assessments and conclusions. There is no requirement to fix the exact purpose of admission (for example, for assessment or for treatment) and, consistently, no limits in terms of time, treatment or care attach to that admission. Nor is there any specific provision requiring a continuing clinical assessment of the persistence of a disorder warranting detention. The nomination of a representative of a patient who could make certain objections and applications on his or her behalf is a procedural protection accorded to those committed involuntarily under the 1983 Act and which would be of equal importance for patients who are legally incapacitated and have, as in the present case, extremely limited communication abilities.
This must be correct. As the Court notes, there was no procedural structure surrounding HL’s deprivation of liberty, and no processes in place for challenges to it, or determining its duration.
The Court’s reasoning also shows up limitations of the jurisprudence, however. First, the Court is ambiguous as to whether the existing law was substantively strong enough to meet ECHR standards. It acknowledges that the substantive law relating to the inherent jurisdiction was still under development at the time of HL’s detention, but declines to make a finding as to whether it had developed to the point of sufficient clarity to satisfy the ECHR (para. 119). This is an astonishing failure. When the case arose in 1997, the inherent jurisdiction was in its infancy. It had never been subject to judicial comment for the purposes of detention prior to HL, and most of the limited jurisprudence on the meaning of best interests antedates the case: there were no substantive rules or standards in effect at the time HL was admitted. It is difficult to see how a stronger set of facts could be found for inadequate substantive provisions for deprivation of liberty. It is bizarre that the Strasbourg court did not find a substantive failing here, but also perhaps telling: the Court’s jurisprudence at least when dealing with mental disability is much stronger on requiring procedures than on substance.
The decision was successful at requiring the government to introduce a process to regulate deprivations of liberty of people lacking capacity: the DOLS were introduced in the MHA 2007. The process further appears to meet the Winterwerp requirements. Incapacity must be caused by a mental disorder as certified by a medical practitioner. The severity must be such that it is in the individual’s best interests to be detained, including the requirements that it must be to protect the individual from harm and that the conditions of the deprivation of liberty must be proportionate to the seriousness and likelihood of that harm. Periodic reviews of detention are put in place, and a representative (generally a family member of the person detained) is appointed to keep an eye on things. Either the person detained or the representative can challenge the detention before the Court of Protection, and legal aid is available.
The government’s response has strengths and weaknesses which will be discussed in the remainder of this chapter. The DOLS however provide a good example of the limits of human rights as a model. Post-enlightenment liberal rights, embodied in documents such as the ECHR, tend to pre-suppose an autonomous and self-motivated subject. Classic civil rights can be envisaged as the right of such a subject to be free of government intervention. The right to liberty under Article 5 is a good example of this: it is the right not to be interfered with by the state except in certain circumstances (Article 5(1)), buttressed by a right to be informed of the reasons of any arrest or detention (Article 5(2)), and the right to challenge any deprivation of liberty before a court (Article 5(4)). For the autonomous subject of liberal theory, these are important rights, but what do they mean for people such as HL? Certainly, they provide a system by which one set of officials (the DOLS assessors) checks to make sure that another set of people (the care home administrators, hospital doctors, or social services staff) are acting in accordance with approved professional standards and the best interests of the person detained. That is important, but it is not necessarily empowering of the person detained. Persons deprived of liberty under the DOLS will of course vary in their abilities, and some will be able to challenge their detentions, but many will not. Consider HL himself. He was unable to decide whether or not to attempt to leave the room; it is not obvious what practical benefit will be gained by providing him with information and a right to challenge his detention, since it is difficult to imagine that he will in practice be in a position to use it.
To its credit, the government response goes some way to taking these concerns into account. The person’s representative is meant to ‘represent’ and ‘support’ the detained person in matters concerning the deprivation of liberty (MCA 2005, Sch. A1, para. 140). Where the individual is likely to have difficulty challenging detention, a lay advocate (an ‘Independent Mental Capacity Advocate’ or ‘IMCA’) is to be assigned to the person detained. While this is again an important provision, it begs the question of how far, in practice, such an advocate can provide a voice that reflects the views, wishes, and desires of people with severe impairments such as HL. This is not meant as a criticism of systems such as the DOLS that attempt to provide support in these circumstances; it is instead a reminder that whatever measures are employed, we may be a long way from the self-motivated and autonomous subject of liberal theory.
This in part recalls the questions regarding the UN Convention on the Rights of Persons with Disabilities (CRPD) discussed in Chapter 4, and foreshadows similar discussion in Chapter 6, at 6.2.3 and 6.5.2, regarding the use of mental disability as a justification for deprivation of liberty, an approach the CRPD would apparently prohibit. The CRPD, and indeed human rights law generally, is meant to empower the people under its remit. However laudable that may be as an objective, there may in practice be limits on its achievability. This is of course not an argument against making all reasonable attempts at such empowerment; it is instead a reminder that it is theoretically and practically not straightforward.
5.2 An overview of the DOLS
The DOLS are complex. It is therefore likely to be helpful to provide a relatively brief overview, before launching into the detail.
5.2.1 Deprivations of liberty outside care homes and hospitals, and the residual power of the Court of Protection
The Court of Protection has a general authority to make determinations arising under the MCA 2005, and this includes determinations regarding the deprivation of liberty (MCA 2005, ss. 4A(3) and 16(2)(a)). In the event that the individual detained is subject to a compulsory power under the MHA 1983 (for example, a community treatment order or guardianship), the ‘eligibility’ requirement contained in Sch. 1A of the MCA 2005 will apply to court determinations regarding deprivations of liberty, but Sch. A1, which contains the bulk of the DOLS processes, does not apply to court-ordered detentions. The DOLS provisions contained in Sch.A1 of the MCA 2005 allow people lacking capacity to be deprived of liberty when specified requirements are met, and it is expected that these will be sufficient for most purposes, but they do not oust the jurisdiction of the court. This is significant in at least two situations.
First, the DOLS processes in Sch. A1 apply only to deprivations of liberty which occur in care homes as defined by s. 3 of the Care Standards Act 2000, or in private or NHS hospitals. Deprivations of liberty occurring in other places (for example, in an individual’s home, or in an institution that is not a hospital or care home) are permitted only with an order of the Court of Protection.
Second, while the MCA 2005 in general applies to persons over the age of 16 years (s. 2(5)), the DOLS processes in Sch. A1 apply only to persons over the age of 18 years (MCA 2005, Sch. A1, para. 13). For a person between the ages of 16 and 18 to be deprived of liberty under the MCA 2005, therefore, a court application is required. This may be of particular relevance, since the general law relating to children does not allow the deprivation of liberty of a person over the age of 16, so the court application under the MCA 2005 is the only way this can be done (C v A Local Authority  EWHC 1539 (Admin), esp. paras. 48 and 64).
5.2.2 The DOLS: Schedules A1 and 1A of the MCA 2005
The overall direction of the DOLS is quite straightforward. They apply to persons lacking capacity who are deprived of liberty in a care home or hospital. Subject to some fairly minor tweaking, deprivations of liberty are permitted when in the best interests of the individual. The best interest test is the same as the one in the main MCA 2005, including the requirement that it must be to prevent harm to the individual detained and the detention must be a proportionate response to the severity and likelihood of the harm—a requirement contained for all decisions involving restraint under the main MCA 2005. A ‘supervisory body’ (the relevant local authority for care homes; the National Assembly for Wales for hospitals in Wales; and for hospitals in England, the detainee’s local authority) is to be informed by the hospital or care home when a person without capacity may be being deprived of liberty. That supervisory body will send out two DOLS assessors—one a medical doctor, the other a social worker or similar professional—to ensure that the provisions of the MCA 2005 are being followed. When there is no family member or similar person to consult about the individual’s best interests, an IMCA (Independent Mental Capacity Advocate) will be appointed to assist in this determination. If the deprivation of liberty is permitted, a representative (generally, a family member or similar non-professional carer) is to be appointed to maintain contact with the person detained and represent and support the person in matters regarding the detention. Detentions may be permitted for up to one year, at which point the process repeats.
Given the relative simplicity of this approach, the complexity of the provisions is astonishing. Schedules A1 and 1A, where the bulk of the DOLS are located, is longer than the entire MCA (excluding Schedules) as passed in 2005, buttressed by a Code of Practice running to 125 pages (Ministry of Justice, 2008b). The provisions are often needlessly complex. The person thought to be lacking capacity, labelled ‘P’ in the remainder of the MCA 2005, is for no obvious reason re-labelled ‘the relevant person’ in the Schedule A1, but not in Schedule 1A, where the usage of the main MCA 2005 is retained. For purposes of consistency, the language of ‘relevant person’ will be used throughout this chapter, including in the discussion of Schedule 1A. The system is administered through a series of 32 forms. When downloaded together, these run to 172 pages: see http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/ documents/digitalasset/dh_113208.pdf. The form certifying the relevant person to be over the age of 18 years alone runs to three pages. Overall, the provisions are laced with legal jargon, often bordering on the incomprehensible even to lawyers. It is difficult to imagine that doctors, care home workers, and social services staff, the people primarily charged with the administration of the DOLS, will be able to make sense of them. In this, the DOLS differ from the original MCA, passed in 2005, which was a model of clarity and where the key concepts were readily understandable by lay readers. The DOLS amendments to the MCA 2005 are thus a bit like watching a favourite art work being vandalized by thugs.
The process for a DOLS authorisation is commenced by the person in charge of the care home or the foundation trust in charge of the hospital to which the relevant person will be admitted. These are called the ‘managing authority’ by the DOLS. The managing authority applies to the ‘supervisory body’ for a ‘standard authorisation’ to deprive the relevant person of liberty. As noted, the supervisory body is the relevant local authority for care homes, the National Assembly for Wales for admissions to Welsh hospitals, and, since the Health and Social Care Act 2012 came into effect in April 2013, the local authority in which the patient was last resident for hospitals in England (see Health and Social Care Act 2012, s. 136). The supervisory body will send out a doctor (a ‘mental health assessor’) and a social worker or similar professional (a ‘best interests assessor’) to decide on the appropriateness of the detention, based on the six ‘qualifying requirements’ summarised in Box 5.1. The mental health requirement must be assessed by the mental health assessor, who must be a doctor with expertise in treatment or diagnosis of mental disorders, and the best interests assessor must be a social worker, approved mental health professional as defined by the MHA, nurse, occupational therapist, or chartered psychologist: Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008, SI 2008/1858, paras. 4 and 5. The best interests assessor is to carry out the best interest assessment, but also the age and no refusals assessments. The mental capacity assessment may be carried out by either assessor.
Age: the relevant person must be over the age of 18.
Mental Health: the relevant person must be affected by a disorder or disability of the mind.
Mental Capacity: the relevant person must lack the capacity to decide whether he or she should be accommodated in the hospital or care home for the purpose of being given the relevant care or treatment.
Best Interests: Admission to the care home or hospital on the terms proposed must be in the best interests of the relevant person, and must be necessary to prevent harm to him. The admission must be a proportionate response to the likelihood and severity of the harm the relevant person would suffer if not so admitted.
The best interests assessment also contains a determination of whether the relevant person is in fact deprived of liberty.
Eligibility: This requirement determines the dividing line between the DOLS and the MHA 1983. In general terms:
If the relevant person is already covered by compulsory powers under the MHA 1983, the eligibility requirement will not be met if the proposed standard authorisation proposed overlaps or conflicts with those compulsory powers.
If the relevant person is to be admitted to hospital to be treated for mental disorder and objects either to the admission or to that treatment, the eligibility requirement is not met unless that objection has been overruled by the valid decision of a deputy or donee of an LPA.
No Refusals: This requirement will be met unless (1) the relevant person has made an advance decision refusing some or all of the medical treatment to be provided in the care home or hospital; or (2) if the admission is in conflict with a decision of a donee of an LPA or deputy acting within their authority.
The eligibility assessment may be carried out by either assessor, but if it is by a mental health assessor, that assessor must also be approved under the terms of s. 12 of the MHA 1983, and if by a best interest assessor, that assessor must also be an approved mental health professional (AMHP) (SI 2008/1858, para. 7). The specifics of the roles of s. 12 approved doctors and AMHPs will be discussed in Chapter 6, at 22.214.171.124 and 126.96.36.199. For present purposes, suffice it to say that they are key actors in the processes under the MHA relating to detention, guardianship, and community treatment orders. All assessments, including the eligibility assessment, must be completed for all deprivations of liberty under the DOLS, whether those occur in care homes or hospitals. The result is that anyone deprived of liberty under the DOLs must be seen by someone with a detailed understanding of these MHA provisions.
If all qualifying requirements are certified by the assessors to be met, the supervisory body scrutinises the assessments and may issue the standard authorisation if it considers that the detention is justified. This is meant to be a bona fide scrutiny, and the supervisory body ought not to issue the standard authorisation if it knows or ought reasonably to know that an assessment is insufficient or defective (London Borough of Hillingdon v Neary  EWHC 1377 (COP) paras. 180–184). The detention may be justified for a period of one year, or such lesser period as is approved by the best interests assessor.
Detention under the MHA 1983, like DOLS detentions, requires the involvement both of a doctor with particular expertise in the diagnosis and treatment of mental disorders (a ‘section 12 approved’ doctor: see 188.8.131.52) and an ‘approved mental health professional’ (drawn from a range of professions similar to the best interests assessor), as well as a second doctor. The DOLS envisage that the assessors will overlap with these MHA roles, but the appointment processes are separate, so the groups will not overlap completely: some best interests assessors will be AMHPs, but some will not, and vice versa; some mental health assessors will be section 12 approved under the MHA 1983, and some will not, and vice versa.
The DOLS envisaged that the standard authorisation would be applied for either within 28 days prior to the relevant person being admitted, or if already admitted (e.g., in the case of a person whose capacity is failing), within 28 days of the qualifying requirements being met (MCA 2005, Sch. A1, para. 24). This would allow time for the assessments to be completed before any detention begins.
In practice, this pacing does not necessarily occur, and when required, the managing authority can issue to itself an ‘urgent authorisation’, allowing the detention to occur for one week so as to allow the application and assessments for the standard authorisation (see MCA 2005, Sch. A1, Part 5). The managing authority can request that the urgent authorisation can be extended once, for an additional period of seven days, if the application for the standard authorisation has been made and there are ‘exceptional reasons’ why the application has not been decided and it is ‘essential for the existing detention to continue’ (MCA 2005, Sch. A1, para. 84(4)). It cannot be extended a second time, and failure to complete the required assessments by the expiry of the urgent authorisation would result in the relevant person being detained illegally. In the event that the authorisations cannot be completed on time, or of irreconcilable disagreement between the assessors, it would seem that the appropriate response in this situation is an urgent out-of-hours application to the Court of Protection (A County Council v MB  EWHC 2508 (COP) at para. 89).
A peculiarity of the DOLS system is that local authorities play multiple parts in the system, most notably as the supervisory bodies for the care homes they in fact own and manage, and deciding the appropriateness of deprivations of liberty in situations where the local authority staff has been pivotal in the decision to deprive the individual of liberty. The dual role as managing authority and supervisory body is expressly envisaged in the DOLS (MCA 2005, Sch. A1, para. 184). It is not, however ideal. The role of a supervisory body is quasi-judicial, determining the appropriateness of a deprivation of liberty. The risk is that the local authority staff exercising this role may also become enmeshed in the care planning for the relevant person, ceding (or at least, appearing to cede) their independence from the decision: see, e.g., London Borough of Hillingdon v Neary  EWHC 1377 (COP) where the person with authority over making DOLS orders was criticised for being involved in the care planning in the case attending a service meeting where the case was discussed (paras. 106 and 112). While this is obviously problematic, it is in a sense unsurprising. The local authority official in question was the service manager—an obvious official to be in charge of the DOLS procedure. This was a case where serious conflict was occurring between the family of the relevant person and the local authority, and it is difficult to see that the service manager could be absent from the meetings relating to those difficulties. The conflict does appear to be real.
Whether the resulting system gives rise to a violation of Article 5 of the ECHR is an open question. Article 5(4) provides the right to challenge a deprivation of liberty before a court, which in turn is understood as an impartial body, independent of the executive and the parties and being of a judicial nature: De Wilde, Ooms and Versyp v Belgium, Application No. 2832/66, 2835/66, 2899/66, judgment of 18 June 1971, (1972) 1 EHRR 438; DN v Switzerland, Application No. 27154/95, judgment of 29 March 2001, (2003) 37 EHRR 21. The body does not need to be a court as that is understood in the UK; a tribunal that meets these criteria is within the scope of Article 5(4) (X v United Kingdom, Application No. 7215/75, judgment of 5 November 1981, (1981) 4 EHRR 188). If the local authority is both detaining the individual and managing the DOLS assessment process, it is difficult to see that there is the required independence to meet the Article 5(4) standard. Probably, it was not intended to: notwithstanding the quasijudicial nature of the process identified in Neary, it does not have the relevant judicial nature. The Article 5(4) point is presumably intended to be addressed by the right of the relevant person and his or her representative to challenge the detention in the Court of Protection. As noted, this is problematic if the relevant person does not have the practical ability to make such a challenge (HL, who was apparently entirely unable to make a decision about his circumstances, is a good example of this). Does Article 5(4) require in these circumstances that a court or similar independent body consider the detention? This issue was considered regarding detentions of people lacking capacity to psychiatric facilities under the MHA 1983, an apparently analogous situation, and the House of Lords considered that such routine judicial (or in MH, review tribunal) scrutiny was not required (R (MH) v Secretary of State for Health  UKHL 60). At the time of writing this case is on appeal to the European Court of Human Rights. Recent jurisprudence of the Strasbourg court suggests that the appeal in MH could go either way. In Stanev v Bulgaria, Application No. 36760/06, judgment of 17 April 2012, the court found a violation of Article 5(4) where there was no routine judicial reviews of peopled detained because of legal incapacity, but this was in a context where the relevant domestic law precluded the detained person from applying for such a review himself or herself (but where family members could apply). In the MH case, like in the DOLS processes, the detainee can require a judicial review of the detention. It is not clear how the court will view the situation when there is no realistic prospect of such a review being requested, given the relevant person’s abilities.
In reading the jurisprudence, it should be noted that usually when matters relating to deprivations of liberty are contested before the Court of Protection, the Court will be exercising its independent jurisdiction to decide on matters relating to deprivations of liberty. While it is certainly possible to seek judicial review of the people performing assessments under Sch. A1 and of whether the conditions of detailed by Sch. A1 are met (see MHA 1983, s. 21A), these hearings are rare. Much more frequently the Court is focused on the merits of the facts before it, and whether the relevant person ought to be accommodated in the proposed conditions—a matter for them that involves applying the MCA 2005 and the eligibility requirement but not (or at least, not expressly) the requirements contained in Sch. A1—rather than on whether the assessors did their job properly. The relevance of this slightly different role is limited. Key issues in most cases will involve whether a deprivation of liberty is occurring, whether the relevant person has capacity or not, whether the course of action is in the person’s best interests and whether, if the relevant person is to be admitted to a psychiatric facility, he or she is ‘eligible’ for such an admission. All of these will be relevant to Sch. A1 or court-ordered deprivations of liberty. While the court, unlike the best interests assessor, is not expressly required to consider as part of the best interests assessment whether the deprivation of liberty is required to avoid harm to the relevant person and whether the proposed course of action is proportionate to the likelihood and severity of the harm (see G v E  EWCA Civ 822), it is difficult to imagine that a court would not do so. Indeed, the obligation of the court to apply the Strasbourg jurisprudence relating to Article 5 imports similar standards of seriousness (see discussion of Winterwerp at 184.108.40.206). The most significant difference would appear to be that the court is not required to receive a mental health assessment separate from the diagnostic evidence relevant to mental capacity under the MCA 2005, and generally it would seem does not do so. That said, it will be argued in this chapter that it is at best unclear what in substantive terms the mental health assessment adds, so its absence from the court’s process may be of minor importance, except that we will lack judicial guidance on what it means or is for.
5.3 The deprivation of liberty
The triggering issue for the applicability of the DOLS is whether there is a deprivation of liberty. The DOLS define the phrase as having the same meaning as in Article 5(1) of the ECHR (MCA 2005, s. 64(5)), so the Strasbourg jurisprudence is directly on point. Citing that jurisprudence, the English courts have held that there are three elements to deciding whether a deprivation of liberty has occurred: ‘(a) an objective element of a person’s confinement in a particular restricted space for a not negligible time; (b) a subjective element, namely that the person has not validly consented to the confinement in question, and (c) the deprivation of liberty must be one for which the State is responsible’ (Cheshire West and Cheshire Council v P  EWCA Civ 1257, para. 16, citing in particular Storck v Germany, Application No. 61603/00, judgment of 16 June 2005; see also JE and DE v Surrey CC  EWHC 3459 (Fam), para. 77).
The second two elements of this test may be dealt with relatively briefly. Regarding the subjective element, (b), the courts have accepted that the acquiescence of a person without capacity does not constitute consent to the confinement. After the decision in HL v the United Kingdom, the case which was the impetus for the DOLS, this position must be correct. The European jurisprudence further makes clear that the consent to the admission must be ongoing: a person who attempts to leave or escape from the institution and is prevented from doing so can no longer be taken to consent to the admission: see e.g., Storck v Germany, para. 76; Shtukaturov v Russia, Application No. 44009/05, judgment of 27 March 2008, para. 108. Similarly, a person who consents to admission but subsequently loses capacity must no longer be taken to consent to the admission. This is envisaged by the DOLS themselves (see MCA 2005, Sch. A1, para. 24), which require application for a standard authorisation for deprivation of liberty for those already accommodated in hospitals and care homes 28 days prior to the DOLS requirements being satisfied. This would apply either when increasing controls are becoming necessary (which would be relevant to the objective element—see below), or when the individual is losing capacity (which is relevant to the subjective element).
The court’s reference to the relevance of state responsibility for the deprivation of liberty, (c) in Cheshire West and Cheshire Council v P, is not as straightforward as the English decisions suggest. It is now clear that the state’s duty extends beyond not violating Article 5 by detaining people itself, but also includes a positive obligation more generally to protect the liberty of those within its jurisdiction, whenever the state knows or ought reasonably to know of a deprivation of liberty (Stanev v Bulgaria, Application No. 36760/06, judgment of 17 January 2012, para. 118). This does not pose a problem for the current English statutory regime, however, as section 64(6) of the MCA 2005 provides that the definition will not depend on whether the person is deprived of liberty by a public authority or not. This provision applies both to the DOLS regime under Sch. A1 and to the Court’s jurisdiction, for deprivations of liberty where Sch. A1 does not apply (most notably, deprivations of liberty outside hospitals and care homes: see 5.2.1).
It is the first element of the determination of deprivation of liberty, the ‘objective’ element, that has proven problematic. This is in part because the determination has been taken to be heavily fact-specific, and rules of general application may therefore be difficult to develop; but it is also in part because the English courts seem to be keen to limit the scope of cases under the DOLS, where the Strasbourg court seems content to adopt a more expansive approach.
To begin with what is uncontroversial, deprivation of liberty is to be determined according to a wide array of factors, including the type, duration, effects, and manner of implementation of the measure in question. While the ECHR jurisprudence distinguishes between a ‘deprivation’ of liberty in Article 5 and a ‘restriction’ on liberty under ECHR Protocol 4, the distinction is one of degree or intensity, rather than nature or substance (Guzzardi v Italy, Application No. 7367/76, judgment of 6 November 1980). This reading of the provisions is not entirely convincing. Protocol 4 concerns the right to move freely within ones country of residence, to choose ones residence, and to leave the country. This seems to have little to do with whether the conditions of a given care home are sufficiently strict to constitute a deprivation of liberty under Article 5. Nonetheless the deprivation/restriction distinction is now well-entrenched in ECHR law, and must be taken as here to stay (see, e.g., Austen v the United Kingdom, Application Nos 39692/09, 40713/09 and 41008/09, judgment of 15 March 2012, para. 57).
In the context of deprivations of liberty of persons lacking capacity, the detention involves the person’s confinement in ‘a particular restricted space for a not negligible length of time’ (see Storck, para. 74). The most important elaboration of this statement by the Strasbourg court is contained in HL v the United Kingdom: does the care home or hospital exercise ‘complete and effective control over his care and movements’ (HL, para. 91). The exclusion of familial involvement in the admission and visits appears to be relevant to that determination (see, e.g., Stanev v Bulgaria, para. 122), but it is not determinative (see DD v Lithuania, Application No. 13469/06, judgment of 14 May 2012, where family visits were allowed and DD’s stepfather instigated the admission).
Within that framework, the Strasbourg court seems to include a wide array of people as deprived of liberty. The presence of a locked door controlling access to the ward is not required (HL, para. 92), and the Court has recently found a deprivation of liberty to occur when the individual lived in an unlocked ward and, with the permission of care staff, periodically left the facility and visited community (Stanev, para. 124). Leaves of absence for a longer period did occur, but at the discretion of the care staff, who had control of the individual’s identity papers and finances. Thus while Mr Stanev was able to take journeys, he remained effectively under constant supervision, and could not leave the home without permission whenever he wished. This was enough to constitute a deprivation of liberty. Similarly in DD v Lithuania, the fact that DD was unable to leave the institution without the management’s permission appears to be pivotal to the decision that she was deprived of liberty, although the court notes that management also controlled who could visit DD, and from whom she could receive telephone calls (DD, para. 146). The fact that medication was provided to DD, and that she was restrained in the facility (albeit briefly, for only 15 minutes) also appear to be relevant (paras. 148 and 149).
In the Stanev case, it held that ‘it is unnecessary in the present case to determine whether, in general terms, any placement of a legally incapacitated person in a social care institution constitutes a “deprivation of liberty” within the meaning of Article 5 § 1’ (para. 121). The fact that the court was willing to leave this question open suggests a willingness to extend the protections of Article 5 to a wide expanse of people lacking capacity.
While the DOLS Code of Practice contains a list of indicators broadly consistent with the Strasbourg jurisprudence (see Box 5.2), the English courts appear much more hesitant than their Strasbourg counterparts to find a deprivation of liberty. Consider, for example, the facts in C v Blackburn with Darwen BC  EWHC 3321. In this case, C had a learning disability and a brain injury which resulted in epilepsy. While lacking capacity to make decisions regarding his residence, he did have significant abilities, often being employed as a janitor in his care home. He was able to leave the home only if accompanied by a staff member. While this would often occur on a daily basis, it was subject to the availability of staff. In January 2011, he kicked down the door of the home in an attempt to leave, and the police were called upon to intervene. A standard authorisation issued shortly thereafter, suggesting that at least at that time, the care home and local authority considered that he was deprived of his liberty, since that is a prerequisite for the grant of such an authorisation (see further 5.4.4). In his evidence to the Court of Protection regarding the standard authorisation, he testified that he found the legal restrictions to which he was subjected stressful, making his epilepsy worse. He testified that he wanted to go somewhere else, that he did not get on with other residents, and that he stayed in his room most of the time to avoid them. He testified that he wanted an end to the legal restrictions on his movement (C, paras. 8–11 and 19). Notwithstanding this set of facts, the court held that he was not deprived of his liberty.
Indicators of deprivation of liberty identified by the DOLS Code of Practice (Ministry of Justice, 2008b), para. 2.5
Restraint is used, including sedation, to admit a person to an institution where that person is resisting admission.
Staff exercise complete and effective control over the care and movement of a person for a significant period.
Staff exercise control over assessments, treatment, contacts, and residence.
A decision has been taken by the institution that the person will not be released into the care of others, or permitted to live elsewhere, unless the staff in the institution consider it appropriate.
A request by carers for a person to be discharged to their care is refused.
The person is unable to maintain social contacts because of restrictions placed on their access to other people.
The person loses autonomy because they are under continuous supervision and control.
The more limited English approach flows in part from considering the ‘normality’ of the relevant person’s life, using a comparison between the life of the person alleged to be detained and that of persons with similar conditions, in assessing whether a deprivation of liberty has occurred. In this way, the English approach does not consider the deprivation of liberty as flowing simply from the conditions in which an individual is accommodated and the behaviour of those providing that accommodation, but asks whether the accommodation is significantly more restrictive than the available alternatives for the individual.
The English approach begins to crystallise with the case of P (MIG) and Q (MEG) v Surrey CC  EWCA Civ 190. In this case P and Q were sisters, aged 18 and 19, each of whom had a learning disability. P’s care was at a foster home, in the care of a foster mother to whom P was devoted. She kept her bedroom door closed there. It was not locked, and P had never shown a wish to leave, but if she had made any attempt to leave, the foster mother would have restrained her. P was provided with intensive support in daily life, including further education, trips, and holidays. She was unaware of danger, so needed help crossing road. She was not on medication. Q lived in a specialist home for adolescents, which accommodated three other residents. Q did have occasional outbursts directed at other residents which required her restraint, but the use of behavioural management techniques had resulted in her behaviour stabilising since her admission. She was subject to continuous supervision and control, but the home was not locked. She had never attempted to leave, so no prevention of that was necessary; she was attended whenever she left home. She attended the same further education college as P, and enjoyed a fuller social life than P. Q was able to communicate wishes in limited manner. She was taking Risperidone for control of anxiety. The Court of Protection held that neither was deprived of liberty, a decision upheld by the Court of Appeal.
P (MIG) and Q (MEG) establishes a variety of points. The trial judge had noted that P and Q were both happy in their accommodation. The Court of Appeal holds that their happiness was certainly relevant to their best interests, but not to whether they were deprived of liberty (para. 24). Any objections by the relevant person to the conditions of their accommodation were relevant to whether a deprivation occurred, and the absence of such objections could also be relevant, insofar as it reduced the confrontations between the relevant person and their carers and reduced the need for restraint and restrictions on behaviour (para. 25). It further holds that the use of medication that has the effect of sedating or tranquilising the relevant person was a pointer towards a deprivation of liberty, as ‘it suppresses her liberty to express herself as she would otherwise wish’ (para. 26). The relevance of such medication was increased if it was administered by force. Similarly, the absence of medication was a pointer away from a deprivation of liberty. While the specifics of these points have not been litigated before the Strasbourg court, they appear broadly similar to its approach, with the caveat that they are indications, none of which is itself determinative. Thus for example notwithstanding the fact that HL did not appear to object to his care in hospital, the Strasbourg court still found a deprivation of liberty. That said, if the relevant person does object and physical restraint is required, the English court is surely right that this would be relevant to a determination of whether he or she had been deprived of liberty.
The court also, more controversially, notes ‘the relative normality of the living arrangements under scrutiny’ (para. 28, emphasis in original). Just as relevant persons living with their families would not normally be (but might sometimes be) deprived of liberty, so people cared for in fostering arrangements, where the conditions of accommodation were similar to life within families, would often not be deprived of liberty. The court went on to raise but not decide the question of whether the degree of confinement to which P and Q were subject prior to their admission to their foster placements was relevant (para. 30).
The logic in P and Q was taken further by the Court of Appeal in Cheshire West and Cheshire Council v P  EWCA Civ 1257. That case involved a man with cerebral palsy, Downs’ Syndrome, and vascular difficulties, who was housed in supported housing with three other residents. The support in his accommodation included one to one care in the daytime, and two staff on duty to care for the four residents at night. P therefore received intensive support, in virtually all of his daily activity. He was also required to wear clothes which fastened only at the back, to avoid him eating his incontinence pads and their contents. He was able to be in regular contact with his family, and to socialise with the other residents and staff.
In determining whether P had been deprived of his liberty, the court extends the reasoning in P and Q by contextualising the factual situations where detention is alleged. It considered by way of example the nineteenth-century case of R v Jackson  1 QB 671, where a man had locked his wife in the matrimonial home until she agreed to restore conjugal rights with him, and compared this to a situation where a man after many years of happy marriage locked his wife in the house because she suffered from dementia and could not safely be allowed out unsupervised. In the court’s view, the former certainly constituted a deprivation of liberty under Article 5, but the latter did not (para. 46). The court adopted a variety of approaches to distinguish these situations. All are problematic, both for doctrinal reasons and with reference to the Strasbourg case law (some but not all of which, it should be said, is subsequent to the Cheshire decision).
The court noted that in the case of the wife with dementia, there is no legal obligation for her to reside with the husband; it is instead that she has no practical alternative, and that ‘it would be absurd to say that she is being deprived of her liberty’ in this situation (para. 57). In the court’s view, things would be different if the individual had a different option for care, and if the current arrangements were required by the coercive act of a public authority.
The latter point regarding coerciveness is consistent with the Strasbourg jurisprudence, but the concern with the availability of different options for care has its own difficulties, unacknowledged by the court. Consider two persons A and B resident in a supported housing situation similar to P’s, and subject to similar conditions of care. Both A and B are unhappy with their residence there, but A has sufficient financial means that other accommodation could be arranged, where B does not. The approach of the court would seem to suggest that notwithstanding identical conditions in their current accommodation, A may be found to be deprived of liberty where B is not. The identical conditions make this an odd conclusion. It also makes little sense in the context of Article 5. The Winterwerp decision allows a deprivation of liberty for persons of unsound mind only if it is the least restrictive option available, and is a proportional response to the situation of the individual (Varbanov v Bulgaria, Application No. 31365/96, judgment of 5 October 2000; Ťupa v Czech Republic, Application No. 39822/07, judgment of 26 August 2011, para. 48, Witold Litwa v Poland (2001) 33 EHRR 53, para. 78). It is difficult to see why A should have the benefit of these requirements, where B would not. If alternative accommodation care arrangements for B really could not be found, the current care arrangements might be justified for B but not for A, but a potential defence under Article 5 should not be confused with whether a deprivation of liberty has occurred. Finding that a deprivation of liberty had occurred would oblige the relevant local authority to justify the deprivation by demonstrating that reasonable attempts had been made to find less restrictive arrangements for B.
Limitations of the court’s approach can be seen in C v Blackburn with Darwen BC, the case noted regarding the epileptic man with learning disability, who notwithstanding an ongoing wish to leave the care home in which he was living culminating in an escape attempt that involved breaking down a door, was held not to be deprived of liberty. Relying on Cheshire, the court held (para. 26):
In the present case Mr C undoubtedly wants to live somewhere else, but this is a reflection of his unhappiness with the care home. He would like to be able to live an unconfined life in the community, but this is not realistically possible due to the extent of his difficulties. I distinguish his situation from those where a person has been removed from a home that is still realistically available. While Mr W’s suggestion of another unit is consistent with Mr C’s wish to leave the care home, it does not represent an actual alternative at the present time.
Mr C’s situation is however similar to Mr Stanev’s. Both have firm views against their current care arrangements, both are precluded by law from making decisions regarding their placements and the conditions of their care. If anything, Mr Stanev enjoyed a greater degree of freedom than Mr C, as Mr C was only permitted out of the care facility when supervised by a staff member. In neither case was an alternate care placement available. Yet Mr Stanev was held to have been deprived of liberty, and Mr C not.
The Blackburn case points up the problematic nature of court’s starting point in Cheshire. Is it really so ‘absurd’ to say that people who are required (whether because of disability or not) to live in controlling environments that they may not like should have the benefits of the processes required by Article 5—most significantly, periodic reviews of their care by someone slightly removed from the situation, and the appointment of a representative to watch out for their interests? Options may result from the involvement of family members willing to serve as carers, who may also be watching over the relevant person in the care home. The lack of options may alternatively result from the increased disability of the relevant person. For both these reasons, people without options may be more vulnerable than those with options. Insofar as that is the case, should these more vulnerable people really be deprived of the protections afforded by the DOLS?
The court in Cheshire spends considerable effort analysing the relevance of purpose, motive, and intent, eventually holding that the purpose (meaning the pursuit of an objectively justifiable aim) of the alleged deprivation of liberty is relevant to determining whether a deprivation of liberty has occurred (paras. 60–77). This approach has been called into question following the Strasbourg court’s decision in Austin and others v United Kingdom, Application Nos 39692/09, 40713/09 and 41008/09, judgment of 15 March 2012, 55 EHRR 14, and the best legal view now appears to be that these factors may form part of the overall factual context, but are not directly relevant in determining whether a deprivation of liberty has occurred (see CC v KK and STCC  EWHC 2136 (COP), para. 93–96).
The court in Cheshire further refines the question of the ‘normality’ of the conditions of the alleged detention. Citing Engel and Others v The Netherlands (No 1) Application Nos 5100/71; 5101/71; 5102/71; 5354/72; 5370/72, judgment of 8 June 1976, 1 EHRR 647, a case which held that to determine whether soldiers were deprived of liberty required a comparison with the life of other soldiers, the court holds that in determining whether people with mental disabilities are deprived of liberty, the court should look not to the population as a whole, but to ‘an adult of similar age with the same capabilities and affected by the same condition or suffering the same inherent mental and physical disabilities and limitations’ (para. 88). As such, a deprivation of liberty will not occur if the conditions are consistent with ‘the kind of lives that people like [the person at issue] would normally expect to lead’ (para. 97).
This is a problematic approach. As a test of deprivation of liberty, it would presumably apply to Article 5 as a whole, not merely to people lacking capacity. The comparator group for a murderer undergoing a lengthy prison sentence would presumably thus be other murderers with similar characteristics; but these will most probably also be in prison, leading to the rather surprising conclusion that convicted murderers in prison are not deprived of liberty under Article 5: these are, after all, the kind of lives that such people would normally expect to lead.
The court’s approach turns the question of deprivation of liberty into a question of discrimination within a class of people: if all similarly situated people are treated similarly so that there is no discrimination between them, there is no deprivation of liberty. But deprivation of liberty is not a matter of discrimination within a group. It is instead a matter of the intensity of controls applied to an individual, and the fact that everyone within a group may be subject to similarly stringent controls may mean that all of the group are deprived of liberty.
Engel notwithstanding, the language of comparator groups in determination of deprivation of liberty is entirely absent from the Strasbourg jurisprudence. The Strasbourg judges instead look to the degree of control to which the relevant person is subjected, with reference for example to the factors discussed early in this section.
Both Cheshire and P and Q are currently on appeal to the Supreme Court, with hearings scheduled for October 2013. This will be the first time that the Supreme Court will have had occasion to consider the DOLS; it may well be that the terrain looks quite different following their decision.
5.4 The six requirements
5.4.1 The age requirement
The age requirement is refreshingly straightforward: the DOLS provisions apply only to persons over the age of 18 years (MCA 2005, Sch. A1, para. 13). The MCA 2005 in general assumes jurisdiction once an individual has reached the age of 16, however (s. 2(5)), so such detentions of people between the ages of 16 and 18 may be approved by the court (see 5.2.1). For persons under the age of 16, the MCA 2005 has no application; but this does not preclude the use of relevant child law or the MHA 1983 in appropriate circumstances.
5.4.2 The mental health requirement
The relevant person meets the mental health requirement if he or she is suffering from a mental disorder as defined by the MHA 1983, but explicitly excluding from that definition the restrictions it contains relating to learning disability (MCA 2005, Sch. A1, para. 14). As noted in Chapter 1, 1.4.1, the MHA definition for some purposes requires that a learning disability is associated with abnormally aggressive or seriously irresponsible conduct (MHA 1983, s. 1(2A)). For the purposes of the DOLS, such conduct is not required.
It is difficult to see why the DOLS revert to the MHA 1983 definition of mental disorder, since the MCA 2005 itself includes a diagnostic threshold as part of the capacity determination (and must be used to assess the relevant person as part of the capacity requirement under the DOLS). The MHA refers to ‘any disorder or disability of the mind’ (MHA 1983, s. 1(1)); the MCA refers to ‘an impairment of, or a disturbance in the functioning of, the mind or brain’ (MCA 2005, s. 2(1)). It is difficult to see much difference between a ‘disability’ and an ‘impairment...or disturbance in the functioning’ of the mind. The MCA 2005 definition includes the brain as well as the mind, but can it really be the intent of the legislator that people lacking capacity because of organic neurological disorders rather than psychological or psychiatric ones should be excluded from the DOLS? There is no obvious reason for such an exclusion, but it seems to reflect the divergence in wording.
Is it instead that the MHA 1983 definition excludes dependence on alcohol or drugs from the definition of mental disorder? This makes some sense if the MCA 2005 is taken to include such conditions (see Chapter 4, 4.4.1), but it seems a peculiarly roundabout way to achieve this end. If the objective is to keep these conditions outside of the DOLS, it would surely have been simpler to legislate expressly to that effect, rather than approaching the issue obliquely, by incorporating the MHA 1983 definition.
In any event, it is not obvious that any restriction anticipated by use of the MHA 1983 definition will have the desired effect, since people under the MCA 2005 definition will still be within the jurisdiction of the MCA, and therefore will be able to be deprived of their liberty by the Court of Protection (which does not apply Sch. A1 for its decisions regarding detention, and is not therefore required to refer to the MHA 1983 definition). Whether the rationale for the use of the MHA definition flows from a difference between mind and brain, or because of a desire to prohibit deprivations of liberty based on alcohol or drugs, it does seem odd to preclude it in Sch. A1, but to leave it within the jurisdiction of the Court.
There is no threshold for the severity of the mental disorder for purposes of this assessment: simply having one will suffice.
The doctor performing the mental health assessment is also to consider the effects of the proposed deprivation of liberty on the relevant person, and to notify the best interests assessor of any findings in this regard (MCA 2005, Sch. A1, para. 36).
5.4.3 The mental capacity requirement
The DOLS apply only if the relevant person lacks capacity to decide whether he or she ‘should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment.’ (MCA 2005, Sch. A1, para. 15). The DOLS are contained in Schedules to the main MCA 2005, and the definitions contained in the MCA are therefore applicable to the DOLS. The discussions relating to the meaning of mental incapacity in Chapter 4 are therefore relevant to this requirement under the DOLS, and will not be repeated here (see 4.4). For a finding of incapacity, the main MCA 2005 requires both a diagnostic condition as the cause of the incapacity and also a functional test—the inability to understand, retain, or use relevant information. The peculiar juxtaposition between the MCA 2005 diagnostic criterion here and the MHA 1983 diagnostic criterion for the mental health assessment have already been noted (see 5.4.2). The remainder of this section will consider the understanding, retention, and use of the relevant information.
The reported case law routinely cites evidence of psychometric testing, often reflected as ‘mental age’, as relevant to capacity determination. While such tests have the advantage of objectivity, they are not unproblematic in their application to capacity determination. A adult found to have a ‘mental age of 7’, as was the case in A Local Authority v FG, AG, HG  EWHC 3932 (COP), does not necessarily have capacity comparable to a 7-year-old child, as capacity will be based not merely on psychological ability but also life experience, a point acknowledged by the court (para. 7). What matters instead is whether the person can understand, retain, and use or weigh the relevant information as part of a process of reaching a decision.
That leads to the question of what the relevant information will be. On this, by way of general guidance, the courts have been remarkably circumspect. If the choice is between local authority and family care, FG provides some minimal guidance (para.17):
That involves an ability to understand what the issues are that determine family or Local Authority provision, what the consequences of any such decision are, and how they are likely to impact on the person’s emotional, physical and educational welfare. That is a relatively sophisticated process, and in the context of this case is, it seems to me, a difficult one.
This moves the decision regarding capacity well beyond the ability simply to choose which place one wishes to live in, into a realm where the psychosocial ramifications of the choice must be able to be understood and evaluated. It is not merely the ability to articulate which room, which food, or which cohabitants the relevant person likes better, but which placement will be most beneficial for the relevant person’s psychosocial well-being. Given the uncertainties many people of robust capacity have about cohabitation arrangements and the choice of residence, this sets a high bar indeed. This is not necessarily a bad thing. Any standard of capacity will have ‘winners’ and ‘losers’, with high thresholds of capacity resulting in the coercion of some people we might like to see left free to make choices but fewer vulnerable people left exposed to the ramifications of bad choices, and low thresholds of capacity the reverse. It does give the lie to any claim that England has a low threshold of capacity, however, at least in this area.
A perusal of the reported case law suggests that a ‘realistic’ understanding of the risks of the options available (and, most notably, any wish to return home) is required: see, e.g., FG, para. 17; CC and KK and STCC  EWHC 2136 (COP), paras. 29, 31, and 32; PH v A Local Authority  EWHC 1704 (Fam), paras. 26, 27, 29, 36, and 45; RT v LT and a London Authority  EWHC 1910 (COP), para. 30; WCC v GS, RS, JS  EWHC 2244 (COP), para. 14. The RT case is unusual, in that it goes to reasonable lengths to explain how the lack of a ‘realistic’ assessment is related to the mental disorder experienced by the relevant person; the remainder merely note the ‘unrealistic’ view of the relevant person. The difficulty with this is, of course, that it fails to distinguish between poor decision-making flowing from the debilitating condition and poor decision-making flowing from other sources. The MCA 2005 is clear that ‘a person is not to be treated as unable to make a decision merely because he makes an unwise decision’ (s. 1(4)). Without a causal link established between the disorder and the grounds for decision, it is difficult to see why a poor decision would be viewed as evidence of incapacity, rather than merely unwise. Here, as in the discussion of the MCA 2005 generally in Chapter 4, it does seem that a concern for safeguarding is influencing the factual interpretations in determination of capacity.
It is notable and a matter of concern that, notwithstanding disagreements in the evidence regarding the capacity of the relevant person in the cases under discussion, CC and KK is notable as the only case in which the court heard face to face the views of the relevant person himself or herself. The court in that case notes that such testimony is unusual (para. 44). In the remainder, the court decided the question of capacity secondhand, by assessing the expert evidence. Finding that one expert is a better witness than another is not a substitute for actually speaking with the relevant person. Direct contact with the relevant person may also be an ECHR requirement. Shtukaturov v Russia, Application No. 44009/05, judgment of 27 June 2008, was a case of admission to a psychiatric hospital based on Shtukaturov’s incapacity, where all the professional evidence and that of Shtukaturov’s family before the domestic court had attested to that incapacity. The Strasbourg court nonetheless found a breach of the ECHR based on the domestic court’s failure to see him personally (para. 73):
The applicant was indeed an individual with a history of psychiatric troubles. From the materials of the case, however, it appears that despite his mental illness he had been a relatively autonomous person. In such circumstances it was indispensable for the judge to have at least a brief visual contact with the applicant, and preferably to question him. The Court concludes that the decision of the judge to decide the case on the basis of documentary evidence, without seeing or hearing the applicant, was unreasonable and in breach of the principle of adversarial proceedings enshrined in Article 6 § 1.
While this finding was made in the context of Article 6 (right to fair trial), the Court notes that the requirements of Article 5(4) are broadly similar (see para. 66). In cases where relevant persons are deprived of liberty after having lived autonomous lives in the community, therefore, it seems likely that the Strasbourg court will require the personal examination of the relevant person in cases before the Court of Protection. While not quite the Shtukaturov case, the logic of that case would suggest that where there is contradictory evidence of incapacity before the court, a personal examination of the relevant person would also be required.
5.4.4 The best interests requirement
The best interests requirement of the DOLS has two components. The first is that the relevant person is, or is to be, a ‘detained resident’ (MCA 2005, Sch. A1, para. 16(1)(2)). This component requires the assessor to consider whether the relevant person is (or is to be) deprived of liberty. The second requires that the proposed course of action, including the detention, is in the best interests of the relevant person, with the definition of best interests drawn primarily from the regular best interests criteria of the main MCA 2005 (see Chapter 4, 4.5). This includes the requirement that the proposed course of action is necessary to prevent harm to the relevant person and that the course of action is proportionate to the likelihood and seriousness of the harm, although for reasons best known to the drafters, this requirement is repeated in MCA 2005, Sch. A1, para. 16(1) rather than adopted by reference to the relevant section in the main MCA 2005 (see s. 6 (1)–(3)). While these express conditions relating to harm apply to the best interests assessment under the DOLS, they do not apply to the Court in its exercise of its overarching jurisdiction (G v E  EWCA Civ 822). The intent of the legislature was therefore apparently that deprivations of liberty that did not flow from a specific harm to the relevant person would be permitted only by the Court, not by the Schedule A1 procedures.
Assessment of the first component requires consideration of whether a deprivation of liberty has occurred, a matter discussed already in this chapter at 5.3. The conduct of that assessment would appear to reflect the tensions in that discussion, with inconsistent results common between best interests assessors. In a study by Cairns et al., five best interests assessors were presented with eight case vignettes, and asked to decide whether the individual described was deprived of liberty. In four of the eight vignettes, they split three to two in this decision (Cairns et al., 2011: table 1). Admittedly, the sample size is small, but the inconsistency of result is reflected in the findings of the Care Quality Commission: there would appear to be significant confusion as to what deprivation of liberty means (see Care Quality Commission, 2011c). The reasons given by these assessors and others asked to provide a view of the vignettes further suggests confusion, even in circumstances where agreement occurred (347):
Regarding this vignette, psychiatrists, IMCAs and best interest assessors were all in agreement that there had been no deprivation of liberty. The reasons given for this decision included: the acceptable use of restrictions proportionate to the risks; provision of Y’s care in the least restrictive setting possible; a care plan that included open access for visits and regular (monthly) outings; the fact that Y had not demonstrated a desire to leave the unit; and the family’s belief that he did not object to his situation.
Of concern here is not whether the conclusion is accurate—half the lawyers in the study also considered that the person had not been deprived of liberty—but rather the reasons given. Issues such as the proportionate use of restrictions relative to risk and least restrictive alternative, and to a considerable degree the individual’s failure to object to the situation or happiness in it, are matters relevant to best interests rather than the determination of whether there is a deprivation of liberty. As discussed at 5.3, in cases such as P (MIG) and Q (MEG) the courts have noted that whether a course of action is in the relevant person’s best interests is a different question from whether a deprivation of liberty has occurred. No doubt an assessment should be made as part of the DOLS processes as to whether the relevant person is deprived of liberty, but the inclusion of the deprivation of liberty assessment within the best interests assessment therefore seems bound to confuse, given that they are separate questions.
The second aspect of the assessment is directed to whether it is in the relevant person’s best interests to be a detained resident (MCA 2005, Sch. A1, para. 16(3)). The express reference to detention in this provision, along with the requirement noted, that it be proportionate to the potential harm to the relevant person, suggests that questions of safeguarding will be of considerable importance in this aspect of the assessment. At the same time, an apposite note of caution is provided by the court in CC and KK (para. 25):
[I]n cases of vulnerable adults, there is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective. On the other hand, the court must be equally careful not to be influenced by sympathy for a person’s wholly understandable wish to return home.
While this comment is provided in the context of the assessment of capacity, it is equally applicable to an assessment of best interests.
While the questions relating to the potential harm to the relevant person are clearly central issues in the best interests determination, they are not the only ones. The best interests assessor is required in addition to take into account any relevant needs assessment, any relevant care plan, and any views of the mental health assessor regarding how the relevant person’s mental health will be affected by the proposed care. In addition to the array of people identified in s. 4 of the MCA 2005, the best interests assessor is obliged to consult with the managing authority—the people managing the care home or hospital (MCA 2005, Sch. A1, para. 39). As such, it would seem that the assessment looks to the entire package of care related to the proposed admission, not merely those involving restrictions directly flowing from the deprivation of liberty.
The deprivation of liberty may only occur to avert potential harm to the relevant person. The proposed course of action should presumably therefore be juxtaposed to a the most reasonable course of action that does not involve such a deprivation of liberty, with the proposed plan being demonstrably preferable both in terms of the overall best interests of the individual and the proportionality of the response in averting potential harm. Such consideration seems appropriate not merely because of the terms of the best interests assessment, but flowing from the principle of least restrictive alternative in the MCA 2005 generally (s. 1(6)). When the alternative choice is care in the family, a full assessment of the family’s ability to care for the individual should be undertaken (LLBC v TG, JG, KR  EWHC 2640 (Fam), para. 33). Often, a simple return to the family home without local authority support will not be a practical option, and this in turn raises the question of what support the local authority is prepared to fund. A Local Authority v PB  EWHC 502 (COP) shows the sort of difficulty that can arise. That case involved PB, a man in his forties, who was deprived of liberty in a care home. This was challenged by his mother, who had cared for PB all his life and wished to continue doing so. The mother was clear that this would require a package of support, but no concrete plan of support was before the court. The local authority took the view that PB’s best interest was to be in the care home, and had thus not prepared an alternative; the mother presumably lacked the expertise to develop and cost such a report and presumably in any event would not have been able financially to commit the local authority to implementing such a plan; and the official solicitor, representing PB, had similarly not developed a plan. The court therefore held that it was insufficiently informed to make a finding relating to PB’s best interests (para. 18).
The PB case points to an additional set of difficulties with the Court of Protection. The local authority had taken the view pursuant to its statutory mandate that it would refuse to fund any plan that would return PB to his mother’s care (para. 19). Whether that was a defensible position was a matter of public law, subject to judicial review, but the Court of Protection has a statutory mandate that does not cover such matters. It cannot therefore require the local authority to fund the care package. Is the court therefore to make a decision based on the options actually available (in this case, care home or care by mother with no support)? This seems undesirable, as it allows local authorities to control the outcome. In PB itself, care by the mother without support was manifestly not a workable option, and therefore whatever PB’s best interests might have been, had a care package with his mother been funded, he would almost certainly have ended up in the care home. Alternatively, should the court make a finding according to a plan that the local authority says it will not fund, allowing the relevant person to take their chances on judicial review of the refusal of funding? That is equally problematic. Success of such cases is by no means a foregone conclusion (see, by analogy, Kolanis v the United Kingdom, Application No. 517/02, judgment of 21 June 2005), and can be a long and costly exercise. And where is the relevant person to live while that is all being sorted out?
5.4.5 The no refusals requirement
The no refusals requirement precludes a deprivation of liberty in the following circumstances (MCA 2005, Sch. A1, paras. 19–20):
if it is proposed to admit the relevant person for the purposes of providing treatment for which the relevant person has made a valid and applicable advance decision to refuse;
if the proposed admission would involve the provision of care or treatment in conflict with a valid decision of a donee of a lasting power of attorney.
The first of these situations will prohibit admissions (generally if not always to hospitals) for the provision of treatment which the relevant person has refused (regarding advanced decisions to refuse treatment, see Chapter 4, 4.6). For example, if the relevant person has made a valid and applicable refusal of treatment for cancer, and it is proposed to admit him or her to treat the cancer, the no refusals requirement means that admission cannot occur. This makes sense: why deprive someone of liberty for the purpose of treating them, if the treatment will not be able to be given anyway?
This first situation applies to treatment only. If the cancer patient in question required care rather than treatment and the other conditions of the DOLS were met, he or she could be admitted to receive that care. That said, if there is a valid and applicable refusal of any part of proposed treatment, the deprivation of liberty cannot occur.
The second situation occurs when a donee of a lasting power of attorney acting within their authority decides against the admission of the relevant person to a care home or hospital. This raises the question of what happens when the donee is manifestly not acting in the best interests of the relevant person. In such circumstances, the Court of Protection has jurisdiction to issue directions, as it would for any other decision within the donee’s jurisdiction (MCA 2005, s. 23(2)). There have as yet been no reported cases under this power, so it is not clear how much respect and latitude will be accorded to the donee’s judgment in these circumstances.
The no refusals requirement provides no exception for admissions or treatment relating to mental disorder. Thus a person who has made a valid and applicable refusal of treatment for mental disorder cannot be admitted for that treatment using the DOLS. The DOLS do not preclude the use of compulsory detention under the MHA 1983, however, when the statutory requirements for such detention are met (see further Chapter 6, 6.3).
The substantial provisions of the eligibility requirement are contained in Schedule 1A to the MCA 2005. Unlike the other DOLS requirements contained in Sch. A1, the eligibility requirement applies both to deprivations of liberty by the courts and through the assessment processes in Sch. A1.
The eligibility requirement delineates between the DOLS and the compulsion provisions of the MHA 1983. The Schedule distinguishes between five cases, with slightly different requirements to determine ineligibility (MCA 2005, Sch. 1A, para. 2). The general approach is twofold:
If the matter at issue in the DOLS determination overlaps with a compulsory power of the MHA 1983 to which the relevant person is already subject, the provisions of the DOLS authorisation must not conflict with the MHA 1983 compulsory power (Sch. 1A, cases A to D, see further 220.127.116.11).
Otherwise, if it is proposed that the relevant person be admitted to hospital for treatment for mental disorder and meets the substantive criteria for civil detention under the MHA 1983, the DOLS may not be used if the relevant person objects either to the admission or to any of the mental health treatment to be offered in the hospital, unless that objection has been overruled by a decision of a donee of a lasting power of attorney or court-appointed deputy (case E, see further 18.104.22.168).
22.214.171.124 Where MHA powers are in effect
The easiest case for the first branch is the individual who is detained in hospital and resident there (case A in MCA 2005, Sch. 1A, para. 2). He or she is already deprived of liberty, and can be treated for his or her mental disorder without consent (subject to exceptions that do not require analysis here) (see Chapters 6 and 9 (9.3)). The ancillary powers of the hospital mean that virtually all aspects of the individual’s life are already under the institution’s control. Treatment other than for mental disorder falls outside MHA 1983 jurisdiction and therefore is decided under the provisions of the main MCA 2005 if the relevant person lacks capacity, but this is not a DOLS issue. The field is occupied by the powers of coercion under the MHA 1983, and the relevant person is therefore ineligible for a standard authorisation under the DOLS.
The relevant person may alternatively be living in the community either on a leave of absence from a MHA detention (MHA 1983, s. 17) or on a community treatment order (MHA 1983, s. 17A) (respectively cases B and C in MCA 2005, Sch. 1A, para. 2). Typically, these will contain provisions regarding treatment to be given in the community, and sometimes will include other requirements of the individual’s life in the community (e.g., where they will live, or what social services they are required to use in the community). Both also allow the individual’s recall to hospital, for short or longer periods of time as necessary (see Chapter 10, 10.2 and 10.4). If the relevant person is subject to one of these regimes, the terms of the standard authorisation must be consistent with the terms of the MHA compulsion. Unsurprisingly, since the MHA 1983 provisions provide for hospital admissions for treatment of mental disorder, the relevant person is ineligible for a DOLS authorisation if the proposed course of action consists in whole or in part of treatment for mental disorder in hospital.
MHA 1983 guardianship (case D in MCA 2005, Sch. 1A, para. 2; see MHA 1983, ss. 7 and 37, and Chapter 10, 10.3 in this book) provides limited and specific powers over those under its authority. Most notably, the guardian can determine where the individual will live, and can require the individual to attend as required for purposes of treatment, occupation, education, and training. It does not contain a power to consent to treatment on behalf of the individual, so it does not enforce treatment in the way that detention under the MHA 1983 does, nor does it have provisions regarding hospital admission for a person who does not comply with treatment. If the relevant person is subject to guardianship, once again, any standard authorisation granted must be consistent with the terms of the guardianship. For example, if the guardianship requires the relevant person to live in care home X, the standard authorisation cannot deprive him or her of liberty in care home Y.
A person subject to guardianship may, in principle, be admitted to hospital for treatment of mental disorder by the guardian (see R v Hallstrom, ex p. W  2 ALL ER 306 at 312). If a standard authorisation under the DOLS is sought in these circumstances, the relevant person will be ineligible if he or she objects either to the admission, or to any or all of the treatment for mental disorder to be given, unless a donee of a lasting power of attorney or a court-appointed deputy has overruled that objection. In this respect, the person subject to guardianship is in the same situation as a person for whom such admission is proposed, but who is not already subject to MHA 1983 powers: see further 126.96.36.199. The eligibility requirement takes a broad view of objection in these circumstances, requiring consideration to be given to the relevant person’s behaviour, wishes, feelings, views, beliefs, and values, both at the time the issue arises and, where appropriate, in the past (MCA 2005, Sch. 1A, para. 5(6)–(7)). It is perhaps appropriate to recall that it is the use of the DOLS that is precluded in this situation. The use of formal powers under the MHA 1983 is permitted, if the conditions specified in that Act apply.
Guardianship provides an example of when a DOLS order may be appropriate, notwithstanding the existence of MHA 1983 powers. The guardian can determine where the individual will reside, and can require the individual’s return to that place, but there is no authority in guardianship to deprive an individual of liberty there. Except for hospital detentions under the MHA 1983, therefore, if it is necessary to deprive a relevant person of liberty this will only be able to be done under the DOLS, even if the guardianship requires the individual to reside at the care home: see, e.g., C v Blackburn with Darwen BC  EWHC 3321, para. 30.
This situation also provides an example of the potential difficulties of the system. What if the guardianship requires the relevant person to live in a specified care home, but the best interests assessor, in good faith, thinks that while a deprivation of liberty may be justified, it should not be in that care home? To sign off on a best interests assessment in these circumstances makes a mockery of the protections of the DOLS system. At the same time, if a deprivation of liberty is legitimately required, failure to sign the form may also lead to a vulnerable person coming to harm. Ideally, one would wish that the matter would be referred to a court for adjudication, but which court? The Court of Protection has jurisdiction over the DOLS, but not over the guardianship. The guardianship itself can be challenged through the MHA 1983 procedures in the First-Tier Tribunal (Health, Education and Social Care Chamber), but the jurisdiction only allows cessation or continuation of the guardianship—there is no jurisdiction to challenge the decisions being taken by the guardian. That would presumably be by way of judicial review, but not in the Court of Protection, so the two issues could not be argued in the same place. In any event, the best interests assessor does not have standing to challenge the guardian or the guardian’s decision either before the tribunal or by way of judicial review, and even if a way were found to bring the judicial review application, these matters can take considerable time. What would happen to the relevant person in the interim?
188.8.131.52 The DOLS and informal admission to psychiatric facilities
The second branch of the eligibility requirement concerns people who are not already subject to compulsory powers under the MHA 1983, but where it is proposed to admit the individual to hospital for treatment for mental disorder (case E of MCA 2005, Sch. 1A, para. 2). HL, the person whose case was the impetus for the DOLS, is perhaps a clear example: he was admitted to hospital for treatment of his mental disorder, but was not detained in the hospital under the MHA 1983 (and was thus an informal patient under that statute). HL forced consideration of the question of how such admissions should be dealt with: when should the MHA 1983 be used, and when the DOLS? This branch of the eligibility requirement addresses that problem.
The relevant person will meet the eligibility requirement for the DOLS if:
the relevant person is ‘within the scope’ of the MHA (Sch.1A, para. 2, case E);
the proposed standard authorisation would authorise the relevant person to be a mental health patient; (Sch. 1A, para. 5(3));
the relevant person does not object to being a mental health patient or to any of the mental health treatment to be given, unless such objection has been overruled by a valid decision of a donee of an LPOA or a court-appointed deputy. (Sch. 1A, para. 5(4)–(7)).
The relevant person is ‘within the scope’ of the MHA 1983 if the substantive criteria for detention under ss. 2 or 3 of the MHA 1983 are met. These criteria will be discussed at length in Chapter 6; for present purposes, admissions under s. 2 may occur when the individual is suffering from a mental disorder of a nature or degree warranting detention in hospital for assessment or assessment followed by treatment, and that the person ‘ought’ to be so admitted in the interests of his or her own health or safety or with a view to the protection of others. Admissions under s. 3 are permitted if the individual is suffering from a mental disorder of a nature or degree making it appropriate for him or her to received medical treatment in hospital, and it is necessary for the health or safety of the person or the protection of others that such treatment be given and it cannot be given without detention under the section, and that appropriate treatment is available.
One of the criteria for detention under s. 3 of the MHA 1983 is thus that appropriate treatment cannot be given without detention under that section. For purposes of determining eligibility under the DOLS, the possibility that such treatment could be provided under the MCA 2005 is not to be considered (Sch. 1A, para. 12(5)). This is presumably to maintain the focus on the treatment in question—is this the sort of treatment that can properly be given under the MHA 1983—rather than becoming entangled in divergent legal possibilities for such provision. The issue, after all, at this point in the assessment is whether the individual is ‘within the scope’ of the MHA 1983, not whether, in the end, the treatment will be provided under the MHA 1983 or the DOLS and MCA 2005. Indeed, for determining whether the relevant person is within the scope of the MHA 1983, this principle has been extended so that the assessor should assume that whether assessment and treatment under s. 2 of the MHA 1983 can be given without resort to detention should be considered without reference to the MCA 2005 (GJ v The Foundation Trust  EWHC 2972 (Fam), para. 44).
The detention criteria under the MHA 1983 are open to considerable interpretation in individual cases, and the statutory language allows, rather than requires, the admission of the individual, if the statutory criteria are met. In GJ, the court held that the assessor was not required to consider what a reasonable doctor deciding on admission would decide, nor whether the individual would inevitably be admitted. Instead, the assessor was to take their own view, based on the facts, of whether the statutory criteria for admission were met (para. 80).
That view may nonetheless be complex, as the schemes do not always sit easily together. Learning disability provides a good illustration. Under s. 2, anyone with a learning disability who otherwise meets the admission criteria may be detained for assessment, for a period up to 28 days. Under s. 3, people with learning disability may only be admitted if that disability is associated with abnormally aggressive or seriously irresponsible conduct (and, of course, the relevant other criteria are met). This may well mean that a relevant person with learning disability not associated with such conduct may be within the scope of the MHA 1983 for the first 28 days of detention, and then outside it. They would thus be ineligible for a DOLS order for the first 28 days, but then become eligible, until such time as further assessment was required and a new s. 2 admission could be justified, at which time they would once again become ineligible for the DOLS.
As noted, in the event that the relevant person is within the scope of the MHA 1983, he or she is ineligible for detention under the DOLS if he or she is be a ‘mental health patient’ and either objects to that, or to being given some or all of the proposed treatment for mental disorder, unless that objection is overruled by the holder of a LPOA or a court-appointed deputy.
The term ‘mental health patient’ is defined as ‘a person accommodated in a hospital for the purpose of being given medical treatment for mental disorder’ (MCA 2005, Sch. 1A, para. 16). The proposed deprivation of liberty must therefore be in a hospital; no issue of eligibility arises for people not yet governed by the MHA 1983 who are to be deprived of liberty in care homes, even if the admission is to facilitate treatment for mental disorder (W PCT v TB  EWHC 1737 (Fam)). The admission must further be for the purpose of being given medical treatment for mental disorder. Frequently at the time of admission, the mental disorder may be complicated by a physical disorder requiring treatment. When this occurs, the court has held that the assessor should consider whether, if the treatment for physical disorder did not exist, the hospital admission would be proposed, and on this basis whether the only effective reason for the proposed admission is the treatment of the physical disorder (GJ v The Foundation Trust  EWHC 2972 (Fam)). If based on this test the proposed admission is essentially for treatment of a physical rather than mental condition, the relevant person is not ineligible and a standard DOLS authorisation may issue.
The same broad view of objection is adopted as was the case for hospital admissions of people under guardianship. Any indication of objection flowing from the relevant person’s behaviour, wishes, feelings, beliefs, views, and values is thus to be taken into consideration.
GJ was the first DOLS case to be heard by the Court of Protection. It is still the most comprehensive discussion of the eligibility requirement, but some aspects of it may warrant re-visiting. The case involved a man with diabetes and also vascular dementia and Korsakoff’s Syndrome, a memory-related disorder flowing from alcohol consumption. The dementia and the Korsakoff’s Syndrome were mental disorders, the diabetes of course a physical disorder, and in determining eligibility, the issues before the court were whether GJ was within the scope of the MHA, and whether he was to be a ‘mental health patient’ as distinct from a patient admitted for the treatment of his physical disorder. In making this decision, as noted in this section, the court provided a relatively expansionist view of the individuals ‘within the scope’ of the MHA. It then notes (para. 45; see also para. 59):
In my judgment, the deeming provisions alone, and together with that view on assessments, are strong pointers in favour if the conclusions that (a) the MHA 1983 is to have primacy when it applies, and (b) the medical practitioners referred to in ss. 2 and 3 of the MHA 1983 cannot pick and choose between the two statutory regimes as they think fit having regard to general considerations (e.g. the preservation or promotion of a therapeutic relationship with P) that they consider render one regime preferable to the other.
This in turn extends to an obligation on decision-makers under the MCA and DOLS to ‘take all practical steps to ensure that this primacy is recognised and given effect to’ (para. 65).
Insofar as this means that where the MHA 1983 can be used it should be used in preference to the MCA/DOLS procedures, this interpretation must be incorrect. If a relevant person is within the scope of the MHA 1983 and is to be a mental health patient, Schedule 1A makes it clear that he or she will only be ineligible for a MCA/DOLS deprivation of liberty if he or she objects either to the admission or to some or all of the treatment offered. If the MHA 1983 detention provisions were used whenever they could be used, whether or not the relevant person objected or not would become irrelevant, and that is clearly not the intent of Schedule 1A. There is nothing wrong with taking a broad view of who is ‘within the scope’ of the MHA 1983 and not allowing this determination to be affected by collateral considerations, but that is quite a different thing to saying that the MHA 1983 must be used whenever possible in these circumstances.
If this is correct, in cases where a relevant person is within the scope of the MHA 1983 but does not object, practitioners could choose whether to use the MHA or the DOLS. The DOLS Code of Practice offers little guidance on this, although it does note that an individual who is likely to regain capacity and at that time object to treatment would sensibly be placed under the MHA 1983, presumably on the basis that MHA compulsion would be required at that time in any event (Ministry of Justice, 2008b: para. 4.48). Notwithstanding the comments in GJ, there is no obvious reason why the preservation or promotion of a therapeutic relationship should not figure in this decision. For the relevant person, the DOLS do have the advantage that the rest of the assessments occur expressly, and the best interests assessor can not merely find that the entire deprivation of liberty is unwarranted, but can also require tailoring of the care provided to the relevant person. Issues such as who will be able to visit the individual, or details of the programme of care to be offered, or indeed the actual treatment to be provided, are to be considered by the assessors and in the event of disagreement can thus be challenged before the Court of Protection. Detentions under the MHA 1983 by comparison are challenged before a review tribunal, where the only issue is whether the detention is to continue or not. If that is the issue of concern to the individual, the quasi-judicial nature of those proceedings may be preferable to the more social services ethos of the DOLS assessments, but the continuation of the detention itself is the only matter within the jurisdiction of the tribunal. Challenges to the care or treatment provided under the MHA 1983 are in principle available by way of judicial review, but such challenges have virtually always failed in the past.
The discussion in this chapter might give the impression that the DOLS are a dynamic new initiative to protect the rights of, and improve decision-making about, some of the most vulnerable people in our society. In fact, they have been something of a damp squib.
The number of people who ought to be subject to the DOLS is not clear, and estimates have shown considerable variation. In the Bournewood litigation discussed at the beginning of this chapter, it was estimated before the House of Lords that a finding that HL could not be held informally would result in an additional 22,000 people being subject to MHA 1983 detention on a given day, or an additional 48,000 MHA 1983 detentions per year: R v Bournewood Community and Mental Health Trust ex p L,  3 WLR 107 at 112G. This figure would appear to refer only to psychiatric admissions; persons in hospital where a deprivation of liberty flowed from a physical cause such as a brain injury, where the MHA 1983 is unavailable, would presumably be extra. And the figure refers only to hospital admissions. Care homes, which cater to the needs of the considerable bulk of persons with dementia or learning disability, are similarly not included in this figure. By the time the DOLS were in their planning stages, the usage expected by the government based on existing populations in care homes and hospitals had reduced to 21,000, roughly three quarters of which were expected to come from care home admissions and roughly a quarter of which would be granted. Thus the 21,000 requests for assessment in the first year would yield roughly 5,000 authorisations. The frequency of these was expected reduce over time to roughly 7,000 assessments leading to 1,700 authorisations per year after 2015–16 (DOH, 2008c, paras. 30–32). The Department of Health freely acknowledged that this was an estimate only.
The actual number of applications for standard authorisations in the first year, 2009–10, was 7,157, being 5,393 for care homes and 1,764 for hospitals. Of these 3,297 were granted (2,439 for care homes and 858 for hospitals) (National Health Service Information Centre, 2010). These have gradually been increasing since that time, with 8,982 applications (6,708 for care homes and 2,274 for hospitals) in 2010–11 (of which 4,951 (3,817 for care homes, 1,134 for hospitals) were granted, and 11,393 applications in 2011–12 (8,208 for care homes, 3,185 for hospitals) of which 6,343 (4,697 for care homes, 1,646 for hospitals) were granted (National Health Service Information Centre, 2011, 2012c). Of those applications refused, just over 4 per cent in 2009–10 involved people who were deprived of liberty, a proportion falling to about 2 per cent in the later years. The most frequent reason for the applications being refused would appear to be a finding that the relevant person is not deprived of liberty, but in about 10 per cent of the refusals, there was a finding that the relevant person in fact had capacity.
The result of this is that at the end of March 2012, 1,667 people were subject to standard authorisations under the DOLS—1,421 in care homes and 246 in hospitals (NHS Information Centre, 2012, table 8a). To put that figure in perspective, it is estimated that 304,850 people with dementia in the UK are in long-term care (Luengo-Frenandez, Leal, and Gray, 2010, p. 19)—admittedly not all in England and Wales, where the DOLS apply. A further, roughly, 43,400 adults with learning disability in England were living in care homes, nursing homes, long-stay hospitals, and similar residential settings (Emerson et al., 2011: 58). No doubt many of these people continue to have capacity, and no doubt many are accommodated in situations that do not constitute deprivations of liberty; but whatever definition of ‘deprivation of liberty’ one adopts, can it really be said that the 1,667 people under DOLS at this time is anything more than the tip of the iceberg? If the objective of the DOLS was to provide meaningful safeguards for people lacking capacity deprived of their liberty, can it really be seen as a success?