Amanda Keeling – Deprivation of Liberty Revisited

Before I was a PhD student, I worked as a research assistant in an intellectual disabilities research group on a project looking at the Deprivation of Liberty Safeguards. As an academic researcher, I was sceptical of the ‘DoLS’ – I thought they were cumbersome and missed the point. Now, my grandmother, who is in the ever-advancing stages of Alzheimer’s has recently been the subject of a DoLS authorisation process, and as a result, I’ve been thinking about them again, what they were for in the first place, and where we are with them now.

Firstly, what are the DoLS? The Deprivation of Liberty Safeguards are an amendment to the Mental Capacity Act 2005, designed to provide a framework for depriving an adult who lacks capacity to make a relevant decision of his/her liberty in his/her best interests. The legislation was brought about in response to the European Court of Human Right’s ruling in HL v United Kingdom. The case concerned HL, a man in his 40s with autism and intellectual disabilities who had been living in the community with adult foster carers, but had been re-admitted to hospital as the result of an incident of self-harming behaviour at his Day Centre. His foster carers wanted him back home, but the psychiatrist responsible for his care felt that he required further care and observation in hospital and would not let his foster carers visit in case he wanted to return with them. As HL was considered ‘compliant’, he was not detained under the Mental Health Act, but rather treated as a ‘voluntary patient’, and therefore not subject to any of the reviews, nor had any access to the tribunal system, embedded within the MHA. In theory, he was ‘free to leave’ whenever he wished – his ward was not locked – but he was sedated and his care team noted that had he actually tried to leave, he would have been stopped.

The challenge at the European Court was that the treatment HL had experienced was in breach of his article 5 right to liberty under the European Convention on Human Rights – that he had been deprived ‘arbitrarily’ of his liberty. The Court agreed with HL; while they agreed that sometimes, a deprivation of liberty was necessary for an individual, in the case of HL, he had been detained without his consent, and without any formal process or safeguards. There was no limit to how long he could be detained, and no formal review process for the end of that review – it was, therefore, in breach of the rules for lawful detention in European human rights law. The fact that he was in an unlocked ward was, the court said, irrelevant to the determination of whether his liberty was deprived. There was ‘complete and total control’ over his life, and he was subject to almost constant supervision.

This judgment resulted in the DoLS, an extraordinarily complex piece of legislation which sets out a framework for assessment of whether an individual is deprived of their liberty, and whether that deprivation is in their best interests. It does meet a lot of the criticisms of the ECtHR, setting out clearly who can do the required assessments, for how long any authorisation can be in force, and a procedure for review. However, it is immensely cumbersome and time consuming, and one can only assume that it is considerations of policy – the burden of both time and cost – that are at the back of the minds of the judges who have made domestic decisions on what a ‘deprivation of liberty’ is in domestic law since the coming into force of the DoLS. In a string of decisions over the past few years (most prominently, Cheshire West and P and Q), the definition of deprivation of liberty has been further and further narrowed, such that it seems almost impossible that a deprivation of liberty could be found unless someone was being terribly abused. The courts’ approach has been to adopt one of ‘normality’ – essentially, if it can be shown that the restrictions on an individual’s liberty are ‘necessary’ and are commensurate with the ‘normal life’ that someone with the same type of disability would have, then it could not possibly be a deprivation of liberty. There are many things wrong with this analysis from a legal perspective, not least that it is collapsing the objective test of deprivation of liberty, with the assessment of whether or not a course of action is in the individual’s best interests.

I can see why the courts have done this – they are no doubt concerned that, if the threshold for deprivation of liberty is set too low, then too many people will fall within the scope of the legislation and the number of DoLS authorisation processes will shoot up (though, at the moment, we are still some way below the estimates of application numbers suggested by the original impact assessment). However, to me, this approach somewhat misses the point. HL was a man who undoubtedly had multiple and complex needs – maybe he even benefited from that period of hospitalisation. What was wrong was that one person (his psychiatrist) was able to assume control over every aspect of his life, and ignore all and any other views on the situation, including his and those of people who cared for him day-to-day and knew him well. She was able to assume this control without any formal review process, or any appeal mechanism against it.

The point of the DoLS, what they should be for, is to ensure that adults with complex needs are never put in the position where any restrictions are put in place without some kind of monitoring. The direction of the case law has concerned me for some time as an academic, but being part of the process from the ‘other side’ if you will, with my grandmother, was my real ‘lightbulb moment’. Ultimately, the application for my grandmother was not authorised, as the assessor found that the restrictions on her life fell short of the (now very high) threshold in English case law. Yet, she is subject to some quite restrictive practices – in particular, the application had been made because of concerns about the frequency of restraint staff at the home were having to use to assist her personal care. My grandmother’s care home is not Winterbourne View – it is a great care home, with patient and caring staff, who only want to do what is best for the residents. However, it is inescapable that they are in a position of considerable power. My grandmother has my mother and aunt, who are very involved in her care and what goes on in her life; but what if they weren’t there, or were just happy to go along with whatever the care home thought was best? The restrictions on my grandmother may indeed be ‘normal’ for a woman with advanced Alzheimer’s disease, and the care home is entirely acting to ensure that she does not get ill unnecessarily, and that her quality of life can remain as high as possible for as long as possible. However, simply because their aims and objectives are admirable, does not mean they should not be subject to scrutiny.

The DoLS should not just be about ensuring that abusive practices, such as those at Winterbourne View, do not happen, nor, even, that some homes and hospitals’ practices are not ‘out of the ordinary’. It should be about ensuring that the any control exercised over an individual’s life is completely necessary, continues to be necessary for as long as it is exercised, and that it is done so for the shortest amount of time. The DoLS does not need to be the frankly bureaucratic nightmare of form-filling that it currently is, and in designing it this way, it seems to be a system which is only for the ‘really bad’ practices of a few, rather than what is should be, which is a constant monitor for the good care practice of all. A lower threshold for deprivation would probably require some reform in the structure of the DoLS, but then, I’m not convinced that would be a bad thing.

Amanda Keeling
PhD Student, School of Law

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