The role of supervisory bodies

Are supervisory bodies meant to be detached authorisers or proactive investigators? The Court of Protection team at 39 Essex Chambers analyse a recent ruling on the issue.

In P v Surrey County Council and Surrey Downs CCG [2015] EWCOP 54 P was 26 years old with severe learning disability and autistic spectrum disorder. His placement broke down and he was urgently moved into a care home on 5 September 2014. On 24 November 2014 an urgent authorisation was issued and, on 23 December 2014, a standard authorisation was granted by Surrey County Council expiring on 18 October 2015. His mother, acting as relevant person’s representative and litigation friend, successfully challenged the authorisation and the court declared that it was in P’s best interests to move to a Homes Caring for Autism placement after a period of transition.

The court held that P had been unlawfully deprived of liberty prior to the urgent authorisation and between its expiry and the commencement of the standard authorisation. Although the best interests assessor had recommended a maximum of 12 months’ authorisation, HHJ Cushing was very critical of the supervisory body, naming its authoriser, in a number of respects:

With regards to the duration (emphasis added):

“19. What was, in my judgment, not open to the supervisory body was to do what it did, namely to receive uncontradicted information from three separate sources that the care home was only suitable in the short term or for a short period and then proceed to grant the standard authorisation for a substantial period, i.e. 80% of the maximum permitted duration. Having regard to the period of time that P had been deprived of his liberty prior to the urgent authorisation, the ultimate decision on duration is drawn into sharper focus. Furthermore, in my judgment, in deciding on the duration of the standard authorisation, Mr Butler placed too much weight on the desirability of avoiding further assessments. There was no evidence that the assessment by the best interests assessor had caused P any actual distress.”

In terms of pursuing a less restrictive alternative:

“27. I cannot speculate how long it would have taken for the alternative proposed by the relevant person’s representative and P’s other parent and his non-appointed advocate to be fully investigated, but, in my judgment, given it was recognised that BR, the relevant person’s representative and his mother, was acting appropriately and in her son’s interests, as is clear from the assessment, it was incumbent on the best interests assessor to investigate her proposal to see whether in fact it offered a less restrictive, more suitable environment in which P could be cared for and, to the extent necessary in his best interests, to have his liberty circumscribed. The alternatives had to be considered by the supervisory body as part of its determination independent of the best interests assessor’s recommendation of the period for which the authorisation of deprivation of liberty would be granted.

….

29. In my judgment, the best interests assessor and/or the supervisor body failed to analyse the four necessary conditions sufficiently. Had they done so, they would have asked themselves three questions:

i) What harm, if any, may P suffer if his continued detention is authorised? The circumstances were that not less than two-to-one staffing ratio was considered appropriate and necessary to limit self-harm.

ii) What placement or type of placement would be a more appropriate response?

iii) How long will it take to investigate the availability and suitability of a more proportionate response? Mr Butler said in his oral evidence that he had had several discussions with Mr Hill, as undoubtedly was necessary to enable him to approach his task correctly, but it was also necessary that he approach his task as a detached supervisor. It was evident that he did engage with the issue and brought his own judgement to the question, but in my judgment he also failed to ask the three questions. His reasons for authorising deprivation of liberty for 10 months did not relate to the qualifying requirements or the least restrictive principle.

…

32. The [supervisory body] had the duty to investigate whether a less restrictive alternative was available. It could not delegate its responsibility in this regard to the relevant person’s representative or the non-appointed advocate. It already knew that the care home was not suitable in the medium or longer term because it had been told so by the social worker undertaking the best interests assessment. Being in possession of that knowledge, the obligation was on the first respondent to be proactive, and they failed in that obligation.

33. It was submitted on behalf of the [supervisory body] that it was not unreasonable to authorise P’s deprivation of liberty for 10 months on the basis that P’s relevant person’s representative or his family members could apply to discharge it. That is, in my judgment, the wrong approach. It is for the supervisory body to ascertain the least restrictive alternative, including the question of duration. It is not for the family to apply, although they have the opportunity to do so under the Act.”

Comment

This is an important decision in a number of respects. First, it illustrates the significance of the proactive nature of the supervisory body’s role in the DoLS process. The legislation says that if all qualifying requirements are met an authorisation must be given. But determining whether those requirements are, in fact, met can never be a box-ticking exercise where a vulnerable person’s liberty is at stake. In the instant case the authoriser had discussed the case with the best interests assessor but there was no contemporaneous record of this discussion. Note, therefore, that it would be prudent for authorisers to take such a note of that critical conversation if they do not do already. But even such a conversation would not have satisfied the judge, who went further by saying “an alternative approach which would have been less restrictive of P’s liberty would have been to call for further information before granting the standard authorisation at all or for the duration in question.” (para 18) Some might suggest that the “supervisory” body may in fact need to be more of an “investigatory” body.

What is particularly interesting in this case is that P was entitled to NHS continuing healthcare so the CCG commissioned his care and was responsible for the arrangements that amounted to a deprivation of his liberty.  But the court emphasised that it was the local authority in its supervisory body role that had a duty to investigate whether a less restrictive alternative was available. To some extent this may overcome the fact that DoLS conditions only ‘bite’ on managing authorities when often the fault in finding alternatives lies elsewhere. Note, also, that the Judge emphasised that P’s mother and non-appointed advocate were under no duty to investigate the cost or availability of a room at the Homes Caring for Autism facility. They had done all that they need to do by raising the existence of a more suitable alternative.

The second noteworthy feature of this case is its confirmation that deprivation of liberty is not a binary question – i.e. is it, or is it not, in P’s best interests? Rather, it involves questions of degree: P may need to be deprived of liberty but not to this intensity. For example, two members of staff were following P wherever he went inside the care home. His opportunities for safe, positive interaction with his fellows were limited by the fact that the home’s client group was older than him. The intensity of the deprivation can vary. Moreover, and thirdly:

“21.  …. the deprivation of liberty authorisation relates to the circumstances in which P is deprived of his liberty, not to his condition, i.e. it is situation specific, not person specific. It does not authorise P’s detention in any other location, and so, on moving P to a different care facility, a fresh deprivation of liberty authorisation would have had to be applied for.” (emphasis added)

These notions are not novel: but it does not hurt to be reminded.

What the judgment does not address is the question of which organ of the state was responsible for the unlawful deprivation of liberty. Of course, as regards P himself, this was irrelevant – the obligation is on the state. The judgment implies that it was the local authority which breached P’s rights under Article 5(1), but had a claim for compensation and/or damages in fact been pursued, some interesting arguments would no doubt have ensued as to the relative responsibility of the CCG and the LA.

This article was written by the Court of Protection team at 39 Essex Chambers.