Closing the Gap

The Deprivation of Liberty Safeguards under the Mental Capacity Act 2005 have been in place for almost a year. In the first of a two-part series, Rhys Hadden, Hilton Harrop-Griffiths and Jonathan Cowen analyse the three leading judgements since the new regime came into force and predict a steep learning curve.

Deprivation of Liberty Safeguards (DOLS) have had statutory effect since 1 April 2009 and since then have featured in three reported cases, each of which is of interest to local authorities, whether in their role as supervisory bodies, managing authorities or assessors for Primary Care Trusts.

Background

The need for statutory safeguards stems from the decision of the European Court of Human Rights in 2004 in HL v UK, which concerned the detention (but not under the Mental Health Act 1983 (MHA)) of a compliant mentally incapacitated man in Bournewood hospital.

His former carers challenged the decision to detain in the domestic courts and were met with the defence of necessity, a common law doctrine whose use in this case was ultimately approved by the House of Lords. Lord Steyn, however, identified what has come to be known as the Bournewood Gap when he observed that necessity was a useful concept but it did not involve any of the safeguards of the MHA and that neither judicial review nor habeas corpus was sufficient protection against misjudgements and professional lapses in such cases.

The ECtHR’s approach was that HL had been deprived of his liberty for the purposes of Article 5 of the European Convention on Human Rights and that only statutory safeguards would satisfy its requirement that such deprivation had to be in accordance with a procedure prescribed by law.

Closing the gap

The DOLS themselves are set out in the 188 paragraphs of Schedule A1 to the MCA and are extremely complex.

They relate only to adults detained in a hospital or care home (as in section 3 of the Care Standards Act 2000 (‘CSA’)) for the purpose of being given care or treatment, who lack capacity as to whether they should be accommodated there and in circumstances which amount to a deprivation of their liberty.

In essence they enable a ‘supervisory body’, following a series of assessments (including as to eligibility – see below), to authorise a ‘managing authority’ to deprive such a person of his liberty if this is in his best interests in order to prevent harm to him, subject to a review procedure and recourse, if necessary, to the Court of Protection, under section 21A of the MCA.

In the case of a care home, the supervisory body is the local authority for the area in which the ‘patient’ is ordinarily resident or, if he does not have a settled residence, the local authority for the area in which he is present and the managing authority is the person registered under the CSA in respect of it.

The place for these safeguards within the MCA is established by section 4A, which provides that the Act does not authorise anyone to deprive another of his liberty unless:
it gives effect to a decision of the Court of Protection made by a ‘welfare order’ under section 16(2)(a) (i.e. that this is in his best interests) or
it is authorised by Schedule A1, or
it is authorised under section 4B, which concerns life-sustaining treatment.

As regards the making of such an order, section 16A provides that this cannot include a deprivation provision if its subject is ineligible to be deprived of his liberty by the Act by reason of Schedule 1A – nor can this be authorised under Schedule A1.

The purpose of this schedule is in effect to assert the primacy of the MHA where the person concerned is subject to a hospital treatment or community treatment or guardianship regime or, if not so subject, he is ‘within the scope of the MHA’ (i.e. he could be detained under section 2 or 3 of this Act) and where he could otherwise be susceptible to a deprivation under the MCA.  Although it is far shorter than A1 it more than matches it for complexity, as illustrated below.

The cases

On 17 July Roderic Wood J gave judgment in W PCT and TB v. V et al [2009] EWHC 1737 (Fam), in which the issue was whether in respect of a deprivation at a care home TB, who had a chronic delusional disorder, was ineligible for the purposes of the MCA.  She was not subject to a mental health regime but the judge proceeded on the basis she came within the scope of the MHA, without, however, any analysis of whether she did.

In such a case the next requirement (the first of three conditions set out in paragraph 5 of Schedule 1A) is that “the relevant instrument authorises P to be a mental health patient.”  Where the issue is whether the Court of Protection can sanction deprivation the instrument is an order under section 16(2)(a) and where the issue is whether Schedule A1 can sanction this it is a standard authorisation.  Where there is no existing instrument to consider the focus is on, respectively, an order as it would be if a provision for deprivation were included in it and an authorisation as it would be if it were given.

A mental health patient is a person accommodated in a hospital for the purpose of being given medical treatment for mental disorder within the meaning of the MHA (but disregarding any exclusion for persons with learning disability). Since a care home was involved rather than a hospital (in effect within the meaning set out in section 275 of the NHS Act 2006), Wood J was able to find that the Court could make a welfare order that provided for her deprivation of liberty there or this could be authorised under Schedule A1.

On 20 November Charles J gave judgment in GJ v. The Foundation Trust et al [2009] EWHC 2972 (Fam). Again, this concerned ineligibility, the case having been brought under section 21A of the MCA in respect of two consecutive standard authorisations for the purpose of GJ (who had been detained under section 3 of the MHA until a month before the first of these) being given treatment for his diabetes in a hospital. The judge found that had he not needed this treatment he would not have again have been detained under the MHA, so that he did not come within its scope for the purposes of Schedule 1A. In any event, the relevant instrument did not authorise him to be a mental health patient.

The particular value of this judgment is that Charles J closely analysed many of the intricacies involved in ineligibility issues, as summarised (albeit at some length) in paragraph 132.

On 11 December Munby J gave judgment in Salford CC v. BJ [2009] EWHC 3310 (Fam). This followed a review of a deprivation provision he had made the year before, concerning a placement in supported living accommodation, where BJ was a tenant and where he received care. Schedule A1 did not apply because this was not a care home and so, as before 1 April, only the Court could sanction a deprivation. The judge did, however, take into account the review procedure set out in the schedule in determining the appropriate nature, intensity and frequency of review to be undertaken by the local authority concerned and the Court.

The future

Whenever there is a significant statutory change it takes time to bed in, to be fully understood by the judges, as well as the lawyers involved, as well as, here, the social work professionals in the front-line. Given the complexity of the DOLS themselves and when they are to be used or not these cases are likely to be only the start of a long learning process.  

Rhys Hadden, Hilton Harrop-Griffiths and Jonathan Cowen are barristers at Field Court Chambers

www.fieldcourt.co.uk

In part two, to be published later this month, the authors will look at aspects of practice and procedure in applications for welfare orders.