The Death of DOLS?

November 17, 2011

The Court of Appeal last week handed down a landmark ruling in relation to deprivations of liberty. Ben Troke and Neil Ward assess its impact.

“Deprivation of Liberty” has always been a slippery concept, in a health and social care setting, but with huge risks if you get it wrong. A deprivation of liberty without lawful justification, and due legal process for scrutiny, would be a breach of the person’s rights under Article 5 of the European Convention, with all the adverse consequences of possible liability in damages, or punishment in legal costs and, increasingly, very public criticism in court and the media, especially in the cases of public authorities which fall foul of this.

The Court of Appeal Judgment in P v Cheshire West and Chester Council (9 November 2011) raises fundamental issues which seem likely to significantly reduce the number of cases where there is found to be a deprivation of liberty in the first place.

P was a 39-year-old man with learning disabilities and autism, who lacked capacity to make decisions about his accommodation and care. In April 2011 a judge held that he was deprived of his liberty in his local authority placement at Z House, as staff had complete and effective control of his life, sometimes using a “body suit” zipped at the back to prevent him getting to his continence pads, which he had a habit of eating.

The Court of Appeal says, in essence, that this care was required as a result of his condition, was “normal” for people like him, and therefore no deprivation.

Lord Justice Munby’s thorough review of the case law revisits two key issues – “purpose”, and “normality”, which the court also wrestled with in the case of “MIG and MEG” (known as “P and Q” in the Court of Appeal).

He accepts that subjective good intentions do not render innocuous a situation that would otherwise be a deprivation of liberty (though he does think that acting in bad faith could turn a situation into a deprivation of liberty) (para 71). He distinguishes this from the objective issue of the aim of the restrictions, put in terms of the "purpose" or "reasons", which he says must be relevant to whether or not a situation is a deprivation of liberty (para 75-76). This may seem a fine distinction, but its real significance is clear when Lord Justice Munby goes on to look at the context and "normality" of the placement.

He said the key is to assess the “relative normality” of P’s life, taking into account the particular care needs arising simply from his physical or mental condition. It is not appropriate to compare P with a healthy adult, who would clearly be deprived of his liberty in these circumstances. “Some adults are inherently restricted by their circumstances”, and the court of protection is dealing with adults “with significant physical and learning disabilities whose lives are dictated by their own cognitive and other limitations”. The appropriate contrast to draw is with “the kind of lives that people like [P] would normally expect to lead” (paras 86, 97 and 102). There may be those who find the language of judging X’s care according to the life expected by "people like X” (para 102) a little uncomfortable, in the context of trends towards individual care and personalisation.

The Court of Appeal said that the first instance judge failed to see that the restrictions and limits on his life at Z House were nothing more than "the inevitable corollary of his various disabilities" (para 110), and “there was nothing to show the life he is living at Z House is significantly different from the kind of life that anyone with his concatenation of difficulties could normally expect to lead…." The reality is that P was "living a life which is as normal as it can be for someone in his situation", and therefore he was not being deprived of his liberty (para 110, 116).

This is hugely significant, and seems to raise a number of issues which the courts will have to continue to clarify over the next few years.

Since the introduction of the Deprivation of Liberty Safeguards (DOLS), massive effort has been spent on education that a "deprivation of liberty" is not necessarily a bad thing, or inappropriate, but simply requires scrutiny and lawful authorisation (whether through DOLS in a care home or hospital, or the Court of Protection in other circumstances). Anecdotally, one of the reasons given for apparent underuse of DOLS is that professional staff understandably find “deprivation” a pejorative term, and are reluctant to recognise it in the care provided which is, usually, assessed in good-faith to meet the needs of P’s physical and mental condition. Lord Munby’s judgement, perhaps, shows that they have been right all along.

If it is right that restrictions imposed simply to meet the needs of P’s condition are by definition not a deprivation of liberty, it becomes difficult to imagine a situation that would be a deprivation that could nevertheless be lawful (whether by DOLS authorisation or by Court of Protection order) as being in P’s best interests, necessary and proportionate, and the least restrictive option. It would seem that all the conditions that are required to make any deprivation lawful will, in effect, mean in most cases that there is no deprivation at all. Education and training that has emphasised the need to separate the primary question of whether there is a deprivation of liberty from the secondary question of lawful justification may now have to be revised.

As with the health and social care system as a whole, the issue of choice is paramount. If there is no realistic alternative to his current placement and circumstances, then it seems there is no deprivation of liberty (para 58). Taken together with the recent high-profile case of Neary v Hillingdon, it seems the most likely circumstances where a deprivation of liberty is found to exist arise when a family and a public body offer competing proposals for care, and in particular where the state tries to assert some control over what would otherwise be family life, protected by article 8 as much as article 5.

If that is the case, we may wonder if there is a discriminatory effect against those vulnerable people, lacking capacity, who do not have family offering alternative proposals, who may therefore be deemed not deprived of liberty, and will not have the benefit of any scrutiny of their care, either through DOLS or the court. The experience of recent scandals and reports about care of the most vulnerable in society might encourage a public view that more procedural scrutiny and safeguards are required, rather than less. The deprivation of liberty safeguards were introduced because the European Court of Human Rights found that HL was deprived of his liberty at a mental hospital where he was detained as an informal patient, for which the common law doctrine of “necessity” was insufficient justification or safeguard. Lord Justice Munby observes that this is a far cry from cases in which someone is in a family or foster home, or small residential unit. Despite this observation, apart from the fact that in HL his foster carers wanted to bring him home it is difficult to see why such there is a significant difference. The purpose or aim of the hospital managers in HL was to keep him safe and to care for him in what was believed to be the best way possible in his best interests, the same purpose or aim as the local authority in this case.

In the absence of family, or others, pressing for an alternative, the reasoning in Chester seems to risk going full circle - back to before HL and DOLS - re-establishing deference to a professional assessment, with any restrictions put in place in good faith according to the physical and mental health needs being deemed not to be a deprivation of liberty, without significant scrutiny and perhaps not so very far, in practice, from the old common law idea of "necessity".

Strictly speaking, there may be no need to bring cases to the court if it is not felt, or disputed, that there might be a deprivation but we tentatively suggest it would be prudent to continue to seek confirmation from the court where there is any doubt. Lord Justice Munby hints at this when he says that many cases coming to court will be fairly obviously no deprivation - for example “if someone is being cared for by their parents, friends or relatives in a family home …or in a foster placement or its adult equivalent in small specialist sheltered accommodation” (para 103) - and the court will be able to deal with most cases of this type "fairly but at the same time simply and quickly… on the basis that there is no deprivation of liberty" (para 104).

This would certainly ease the pressure a little on public authorities, the Official Solicitor and the court, who are all currently snowed under with applications, particularly in the wake of Neary, but it remains to be seen whether the notions of "purpose" and particularly "normality" in turn raise more questions than answers.

This email address is being protected from spambots. You need JavaScript enabled to view it. and This email address is being protected from spambots. You need JavaScript enabled to view it. are partners at Browne Jacobson. Ben can be contacted on 0115 976 6263 while Neil can be reached on 0121 237 3927.