A new spotlight has been shone on DoLS following the recent Supreme Court Judgment in the Cheshire West case. This is likely to have a number of practical consequences for providers. This article sets out the background to Cheshire West and summarises the decision which was reached before examining the practical consequences for care home providers.
The Deprivation of Liberty Safeguards (DoLS), set out in Schedule A1 to the MCA 2005 and in the DoLS Code of Practice, were originally created so that adults lacking capacity could be lawfully detained. Ordinarily such a detention would be a breach of Article 5 of the European Convention on Human Rights (the ECHR) on the right to liberty as such a detention would amount to a deprivation of liberty. However, following the identification of this problem by the ECtHR in the Bournewood case, the DoLS were introduced and it became lawful to deprive an incapacitated person of their liberty if it was necessary to do so in their best interests.
Since the introduction of the DoLS, care homes and hospitals have routinely applied to local authorities (their ‘supervisory bodies’) for a standard authorisation to deprive someone of the liberty and they can grant themselves an urgent authorisation for 7 days pending the outcome of the standard authorisation.
The problem comes when trying to determine whether an application needs to be made, i.e. what amounts to a ‘deprivation of liberty.’ The Code of Practice gives some examples but does not set out a test. The Judgement of the Supreme Court in Cheshire West attempts to set out a test but there are problems with it.
Cheshire West and the test for ‘deprivation of liberty’
In Cheshire West, the Supreme Court made it clear that the same test would apply regardless of someone’s level of disability as ‘it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race.’ Thus they rejected the Court of Appeal’s earlier recommendation of the ‘relative normality’ test, involving a comparison between two individuals with similar disabilities. The extent of the person’s compliance or lack of objection to being detained was also irrelevant, as was the purpose behind a placement. The fact that a person was comfortable was also irrelevant. As Lady Hale, who gave the leading judgement, stated ‘a gilded cage is still a cage.’
Instead, the ‘acid test’ for determining that there is a deprivation of liberty, according to Lady Hale in Cheshire West,involves establishing 1) that the person is subject to continuous supervision and control and 2) that the person is notfree to leave. The area and duration of the confinement is also relevant.
The problem is that neither of these two factors was clearly defined by the Supreme Court. It was made clear that relevant factors for 1) above could include controlling who the person could have contact with and the activities they could participate in. However, no further guidance was given on what amounted to ‘continuous supervision.’ One could argue that all of the incapacitated service users in a care home are being continuously supervised so it is difficult to see who would not fall into this category.
Relevant factors for 2) included not being able to leave the placement without supervision and not being free to leave in order to reside somewhere else. Both of these factors would probably apply to incapacitated service users in a care home just by virtue of them living in it.
So there is still scope for great ambiguity. What is clear (and what Lady Hale herself maintained in the Judgment) is that one ought to ‘err on the side of caution’ when determining what constitutes a deprivation of liberty.
Ramifications for providers
This Judgment has huge implications for providers, particularly providers of residential care homes accommodating a resident who lacks capacity, because both limbs of the test could be said to always be made out in care homes just by virtue of the incapacitated person living there.
Whilst some of the principles set out by the Supreme Court were already set out in the Code of Practice, the emergence of a case on DoLS from the highest court in the land which urges people to ‘err on the side of caution’ is likely to result in an increase in claims from those representing incapacitated persons. We are likely to see more claims in relation to allegations of unlawful detention and breaches of service users’ Article 5 rights. This will have legal and financial implications for providers. This is why we would recommend that:
- capacity assessments are reviewed so that providers are clear how many service users lack capacity
- urgent authorisations are made in all cases where providers are accommodating an incapacitated person
- this is followed up within 7 days by an application to the local authority for a standard authorisation.
If no authorisation is in place you will have no defence against a claim for unlawful detention and you should also be aware that there is no time limit in respect of cases involving claimants who lack capacity as the Limitation Act does not apply to those cases. So whilst this may be a very time-consuming exercise for providers and their staff, it is wise to spend a bit of extra time and money on this problem at this stage rather than risk being caught ought later and having claims made against you further on down the line. Once the application has been made to the local authority, it will then be for the local authority to make the decision on whether the deprivation of liberty is in the person’s best interest. The problem will have been taken out of your hands.
Cheshire West is not only on the radar for those representing service users. DoLS are likely to be in the spotlight for the foreseeable future as far as both CQC and local authorities are concerned too. So it is vital that providers avoid facing criticism from either of these bodies for failing to make the necessary applications.
Insurance companies will also have an interest given the potential for claims. Insurers may require that providers make the urgent authorisations and apply for standard authorisations in respect of all service users lacking capacity as a condition of the insurance policy.
The most significant upshot of the Cheshire West case may thus be a practical one. It shines a light on DoLS and care home providers need to be able to protect themselves against any fall-out from this because no-one else will.