Freedom is one of the most highly protected rights and nowhere is this more apparent than in those places where this is potentially under threat in a care setting. This is especially pertinent when one lacks capacity i.e. the ability to make a decision for him/herself owing to ‘an impairment of, or a disturbance in the functioning of, the mind or brain’ Mental Capacity Act 2005 s2 (1). Such vulnerable individuals are afforded safeguards against being arbitrarily deprived of their liberty under the Deprivation of Liberty Safeguards (DoLS).
These safeguards were used relatively sparingly until March of 2014 when rulings were made on three cases where deprivations of liberty were alleged to have occurred. They are collectively known as the Cheshire West judgment and established the key test- known as the acid test- which needs to be met for a deprivation of liberty to occur. Is the individual:
1. Free to leave and
2. Under continuous or complete supervision and control?
This test forms the basis upon which a deprivation of liberty is reached and both arms of the test need to be met in order to constitute a deprivation of liberty. Lady Hale’s comment in the judgment ‘a gilded cage is still a cage’ provides a useful illustration of the issue whereby despite living within relative comfort the effective outcome of the individual’s care and treatment arrangements are the same- they are being deprived of their liberty. A deprivation of liberty arises essentially in scenarios where arrangements prevent a resident/patient from leaving of their own volition and their movements are highly monitored.
The relative pleasant nature of one’s care/treatment arrangements has no material impact on their deprivation or otherwise. A deprivation of liberty is often determined to be objectively in the best interests of the individual but again this does not dispense with the necessity to make an application seeking authorisation to deprive someone of their liberty.
In addition to the two-pronged test (not free to leave and under continuous or complete supervision and control) it has been established that in order to determine whether a deprivation has occurred the person’s arrangements should be compared objectively with those of someone without the disability of the individual since liberty is afforded to all. The comparison therefore is whether someone of a similar age would be considered to have been deprived of their liberty if the arrangements of the alleged deprivation would constitute such a deprivation free from the terms of his current arrangements.
Underpinning this approach is Article 5 ECHR which specifically relates to the right to liberty and security of the person. This right is of universal application and extends the protection to those who lack the capacity to consent to their care/treatment arrangement. There is also the obligation on local authorities not to act in a way that would breach a Convention right of which this particular Article is the most relevant to the scenario of DoLS.
An application seeking an authorisation for a deprivation of liberty should in most cases be anticipated prior its use and in any event no more than 28 days prior to the first deprivation. There are occasions when circumstances are such that an authorisation cannot be made within such a timeframe at which point an urgent authorisation would need to be made by the care provider. The application for a standard authorisation would need to be made to the supervisory authority at the same time i.e. the local authority. There are two different types of authorisation, standard, which would be granted for a set period of time and an urgent authorisation which would be granted for up to 7 days.
Following the initial Cheshire West judgment there has been a substantial increase in numbers of Deprivation of Liberty applications and subsequent permissions. Whilst this has been reported as unexpected this was not the case when the first permutation of the Deprivation of Liberty Safeguards was brought in under the Mental Health Act 2007 where estimates from the legislators aligned more closely with the increased numbers of applications that we are seeing today. An example of the uplift in DoLS figures was highlighted in a report commissioned by the CQC whereby at the end of September 2014 there were almost 20,000 applications awaiting a decision in comparison to 356 at the end of the previous year.
Recent guidance from The Law Society has sought to bring together the jurisprudence on the issue but we haven’t moved much past Cheshire West, some of which is still being debated in the courts. This guidance was commissioned by the Department of Health to assist professionals who are responsible for daily assessments to try to navigate this complicated area following Cheshire West. There are a number of caveats to the guidance regarding its scope and application but essentially it is billed as a beginner’s guide to professionals and only states the law as at the end of February 2015. We are slowly achieving more clarification through a variety of recent court rulings. For example it has been held that being in one’s own home does not preclude one from being deprived of their liberty. Little will substitute a forensic assessment of the particular circumstances surrounding a person’s care and/or treatment arrangements.
It is worthwhile to note that there needs only be the risk that a deprivation of liberty might occur to justify seeking an authorisation for a deprivation of liberty. Often in case law the focus is on the degree and intensity of the arrangement as opposed to its nature.
There are many nuances and nowhere is this more apparent than within the recent guidance compiled from The Law Society on the topic. The area is of the upmost importance for all those involved but appears to have become unwieldy in its application. This could have arisen historically through the misapplication of the Safeguards which now seem to be applied more earnestly in line with the original spirit of the legislation although inconsistency of approach remains a problem across the country. It is apparent that a more common sense approach needs to be applied to the area and the work of The Law Commission, which is due to report in 2017, will be certainly greatly welcomed by the sector.