Gilded cage

Alexis Hearnden outlines the key facts the non-specialist practitioner needs to know about the Mental Capacity Act Deprivation of Liberty Safeguards.

The Mental Capacity Act 2005 (MCA 2005), while a relatively new piece of legislation, has made a major impact on the lives of vulnerable adults and those involved in their care. With an aging population and the associated increase in the number of people experiencing mental impairments, more and more individuals fall under the scope of the act. Over the last few years, the courts have endeavoured to identify the circumstances in which a person is deprived of their liberty within the meaning of article 5 of the European Convention on Human Rights (ECHR), and the terms under which the state should authorise that deprivation as lawful (either under the MCA 2005’s Deprivation of Liberty Safeguards (DoLS), or via an order of the court).

In this article, I identify the circumstances in which a deprivation of liberty arises, and the obligations which flow from it. It is not intended to be an in-depth guide to case law or procedure, rather a discussion of the main points that non-specialist solicitors advising vulnerable adults, their families, deputies and attorneys need to know.

Under the MCA 2005, a person (known as ‘P’) must be assumed to have capacity, unless it is established that they lack capacity (section 1(2) of the MCA 2005). Where P has been assessed as lacking capacity, an act done, or decision made, for or on behalf of a person who lacks capacity must be done, or made, in their best interests (section 1(5)). Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action (section 1(6)).

In many cases, the decisions made by family members, statutory bodies and other professionals will be ‘best interests’ decisions – even if that legislative concept is not explicitly referenced. And in many cases those decisions will result in P being deprived of their liberty.

When is P deprived of their liberty?

The domestic and European judgments which analyse what constitutes a deprivation of liberty within the meaning of article 5 all establish that there are three elements to a deprivation of liberty. These are:

• the objective element – confinement for a not negligible time
• the subjective element – no valid consent
• the confinement that can be imputable to the state.

When considering the objective element of whether or not a person is deprived of their liberty within the meaning of article 5, guidance can be found in Lady Hale’s leading judgment in P v Cheshire West and Chester Council and another [2014] UKSC 19. This case established the acid test for determining whether someone is deprived of their liberty. The test to identify a deprivation of liberty is to assess whether the person is (a) under continuous supervision and control, and (b) not free to leave.

It is not difficult to see how, on the application of the acid test, a huge number of people in care homes, hospitals, supported living and even their privately owned homes, are deprived of their liberty. Crucially, where a person has been assessed as lacking capacity to make a decision about where they should live, acquiescence or positive enthusiasm for their situation does not mean that they are not deprived of their liberty, since they cannot give valid consent. Rather, it may lean towards the conclusion that the deprivation is in their best interests (and should therefore be authorised). Finally, as I discuss below, even apparently ‘private’ arrangements can be imputable to the state.

Authorising a deprivation of liberty

DoLS

Where a person who lacks capacity is deprived of their liberty, that deprivation must be authorised by one of two means. The DoLS provide a statutory scheme for authorisation, created by section 4A of and schedule A1 to the MCA 2005, which applies to those who reside in a care home or hospital. In those instances where P is detained in a hospital or care home for the purposes of being given care or treatment, in circumstances that amount to a deprivation of P’s liberty, the care home or hospital (known under the statutory scheme as ‘the managing authority’) should make an application to the supervisory authority for an urgent or standard authorisation. The supervisory authority (usually the local authority in England or the National Assembly in Wales) will then conduct a series of assessments (including a mental capacity assessment and a best interests assessment) to determine whether the restrictions are proportionate to the likelihood and seriousness of harm, and whether the qualifying requirements set out in schedule A1 to the MCA 2005 are met.

As part of the process, the supervisory authority must appoint a ‘relevant persons representative’ (RPR) as soon as practicable after a standard authorisation is given (paragraph 139(1) of part 10 of schedule A1 to the MCA 2005). That person may be a family member or friend, or, in circumstances where there is no one willing or able to act, a paid representative will be appointed (usually an advocate or independent mental capacity advocate). An RPR is under an express obligation to represent and support P in matters relating to or connected with schedule A1. This obligation includes taking all steps to identify whether P wishes to challenge a standard authorisation by requesting a review under part 8 of schedule A1 (although the review process does not apply to urgent authorisations), and/or by making an application to the Court of Protection (CoP) pursuant to section 21A of the MCA 2005.

The importance of the role should not be underestimated, and was recently considered by Mr Justice Baker in Re RD & others [2016] EWCOP 49. A key part of the RPR’s role is to try to identify P’s wishes and whether they would wish to live elsewhere, and to challenge the capacity or best interests requirements of the authorisation. In doing so, the RPR should consider not only the direct evidence of expressions of wishes, but also indirect evidence of P’s wishes as inferred from their behaviour, taking into account all the circumstances in carrying out the assessment. If P is unable to communicate their wishes, the RPR should consider what those wishes would be, were they able to communicate them.

In some cases, it will be a relatively straightforward exercise – for example, the widower who tells his children that he feels a care home is like a ‘prison’ and that he wants to go home. In others, it will be more nuanced: for example, a middle-aged woman with an acquired brain injury who regularly absconds from a placement returning to her home, who may be taken by her actions to demonstrate a wish to challenge her deprivation of liberty.

Some family members can find the RPR role difficult in circumstances where they are wholeheartedly of the view that continued residence at a care home or hospital is in P’s best interests, but P wishes to challenge that detention. In those circumstances, the RPR must support P to bring a challenge by way of an application pursuant to section 21A of the MCA 2005 to the CoP, or relinquish the role to allow someone else to perform it. The courts have been critical of RPRs who have failed to facilitate a challenge on the basis that they themselves support the status quo: see Mr Justice Baker in AJ v A Local Authority [2015] EWCOP 5 and Re RD & others.

Supported living and private homes

The DoLS scheme only applies to care homes and hospitals, which means that in the case of adults in supported living, extra care or sheltered accommodation, or their own homes, any deprivation of liberty must be authorised by a court order. This can usually be sought under a streamlined, paper-based application known as the Re X procedure (which is made on a DOL10 form). While it may seem counterintuitive – that a person can be deprived of their liberty in their own home – the courts have made clear that a deprivation of liberty may still exist in a privately owned home.

Professional deputies in particular would be wise to familiarise themselves (if they have not already done so) with the recent decision of Mr Justice Charles in Staffordshire CC v SRK & others [2016] EWCOP 27, which makes clear that apparently ‘private’ arrangements for care (for example, made by a trustee or deputy for the private funding of care and accommodation) may nevertheless be imputable to the state, such that the obligations under article 5 of the European Convention on Human Rights are engaged.

SRK concerned a man who had suffered an acquired brain injury in a road traffic accident and required 24-hour care. He received personal injury damages which funded the purchase of his home and his care team. Applying the acid test, he was under continuous supervision and control and was not free to leave. He lacked capacity to consent. Given the size of the settlement and his complex needs, a specialist brain injury case manager managed his care team and a court-appointed (private, ie not local authority) deputy for property and affairs managed his finances.

Mr Justice Charles considered whether SRK’s deprivation of liberty was imputable to the state. While acknowledging that the Care Quality Commission retains oversight of care homes and that the local authority is tasked with investigating an alleged deprivation of liberty, the court found that this was insufficient to render the state directly responsible for the deprivation of liberty:

‘Such steps are part of the supervision and regulation of private providers of care and do not found a sufficient direct participation by the state as a decision-maker, provider or otherwise in the creation and implementation of SRK’s (private) deprivation of liberty within article 5’ (paragraph 131).

Even where a court has made a damages award or the CoP has appointed a deputy, it will not make the state directly responsible (paragraphs 132-33). However, Mr Justice Charles reached a different conclusion when it came to indirect responsibility: the court awarding damages; the CoP when appointing a deputy to hold and manage them and the deputy; and trustees or an attorney to whom a damages award is paid and who must make decisions on its application in P’s best interests, should all be aware that the regime of care and treatment of persons in an equivalent position to SRK creates a (private) deprivation of liberty within article 5 (paragraph 135).

The state can thereby become indirectly responsible by failing to comply with its positive obligations under article 5 to prevent arbitrary detention. The following guidance was given to deputies (at paragraphs 58 and 59):

‘As a result, in my view, a deputy should raise those issues with the relevant providers and the relevant local authority with statutory duties to safeguard adults. By so doing he would be taking proper steps to check whether D and/or the local authority could put in place arrangements that meant that P was not objectively deprived of his liberty or that would make the care arrangements less restrictive and/or remove any restraint…

‘[If after alterations, P remains deprived of his liberty]… the deputy would then either have to take steps: (i) to ensure that the situation on the ground was authorised under the DoLS or by the making of a welfare order, or (ii) to ensure that the situation was kept under review by the relevant decision-makers on the ground, the local authority and P’s family and that they all remained of the view, and he agreed, that the care and treatment being provided was the least restrictive option to best promote P’s best interests’.

The local authority with the adult safeguarding role will know, or should know, of the situation. This ‘triggers its obligations to investigate, to support and sometimes to make an application to court (or to consider doing those things)’ (paragraph 137, emphasis added). A failure to make a welfare order in these cases would breach the state’s positive obligations and mean that the state was responsible for the deprivation of liberty (paragraph 146). The judge continued (at paragraphs 147 and 148):

‘I have reached this conclusion with real reluctance because it seems to me that in this and many other such cases a further independent check by the COP will add nothing other than unnecessary expense and diversion of private and public resources which would be better focused elsewhere.

‘But, in my view, the cautious approach taken in the Surrey case [Cheshire West ], and the points that:

i) the need for a welfare order and evidence supporting it will focus the minds of those involved on the ground, and thereby reduce the risk of misjudgments and professional lapses (see paragraph 121 of HL v United Kingdom) by promoting both (a) decision-making and reviews, and (b) investigation, supervision and regulation on a properly informed basis,

ii) deputies and local authorities will not act in the same way in all cases,

iii) not all Ps will have supporting family members or friends,

iv) a different regime dependent on the identity of those involved would be impracticable or arbitrary, and

v) when, as here, a deputy, providers and a local authority have properly examined the issues, and their conclusion is supported by the family, a streamlined and so paper procedure for the making of the initial welfare order and paper reviews is likely to be appropriate.’

The secretary of state appealed the decision, which was affirmed by the Court of Appeal in Secretary of State for Justice v Staffordshire CC & others [2016] EWCA Civ 1317. Sir Terence Etherton MR held that Mr Justice Charles had been fully entitled, and right to conclude that, in SRK’s circumstances, absent the making of a welfare order by the CoP, there are insufficient procedural safeguards against arbitrary detention in a purely private care regime.

This will all be relatively straightforward if the local authority makes an application to the CoP under the Re X procedure. However, if the local authority fails to seek judicial authorisation for the detention, this potentially puts deputies and attorneys in a difficult position. In these circumstances, a deputy or attorney who has notified the local authority of the deprivation of liberty may themselves need to ensure that an application is made for an authorisation (see paragraph 59 of SRK ). And if the prospect of an application to the CoP is likely, the cost of said application should form a part of any schedule of loss submitted in a civil action.

Where a deputy or attorney is a family member or friend, the prospect of a Re X application may be a little overwhelming. Solicitors advising in this context will need to provide clear guidance to the deputy or attorney on how to secure medical evidence on capacity and evidence as to best interests.