The House of Lords has recently established a Committee to review the Mental Capacity Act 2005 and the accompanying Deprivation of Liberty Safeguards. They are examining many aspects (see the call for evidence here), but one thing that I really think needs reconsidering is the review mechanism.
Briefly, there are two mechanisms for review of a DoLS authorisation set out under schedule A1 to the MCA. The initial approach should be an application for review to the supervisory body, which can request the review of any of the 6 qualifying criteria for the DoLS authorisation, to ensure they are still met. The problem here, is that the supervisory body is the body which authorised the application in the first place; if they have done their job correctly, and not simply ‘rubber stamped’ the application, then they should have already checked that these criteria have been met. If this is a case of disagreeing with the original assessments, rather than a review on the basis that the circumstances have changed (such as the individual regaining capacity), then this begins to seem like a weak process. The supervisory body are not independent, and relies on good practice from everyone concerned. As Mark and Steven Neary found out, the absence of external scrutiny on such a process, can result in collusion and abuse of the process.
The second route of appeal is directly to the Court of Protection. This is an external mechanism, and as such should be unbiased and objective. It is, however, costly and lengthy, and can take some time before anything is resolved. Further, the court’s judgments on what constitutes a deprivation of liberty have been narrowing over the past few years (such as Cheshire West and P and Q), which the cynical amongst us could interpret as a policy decision to attempt to reduce the number of cases coming before an already-overworked court.
The right to a review of a deprivation of liberty is set out in the European Convention on Human Rights (ECHR), which is directly binding in domestic law by the Human Rights Act 1998. Article 5(4) sets out that individuals who are deprived of their liberty ‘be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’. Recently, the European Court on Human Rights (ECtHR) has had cause to consider this provision in considerable depth, as it has heard a number of striking cases on issues of capacity and guardianship from Eastern Europe.
The recent cases are Kedzior v Poland, Stanev v Bulgaria, DD v Lithuania and Lashin v Russia. All four applicants had a diagnosis of schizophrenia and had been found totally or partially incapacitated by a domestic court, and appointed a guardian. The nuances of guardianship law are slightly different in each Member State, but the basic premise of incapacitation and guardianship is that the individual is no longer considered a legal person, and their guardian is their representative for the purposes of legal decision-making. This includes the making of applications to a court of both their incapacitation and guardianship status, and their deprivation of liberty.
All four were found to be deprived of their liberty under article 5(1) of the ECHR, and that they had not had sufficient access to a review of that deprivation of liberty. Mr Stanev was not permitted to bring a case for review of his placement in a social care home, as his guardian had not authorised his representation by a lawyer. Though his guardian was not opposed to his making an application, the paperwork had not been completed correctly. Ms DD was not permitted to make an application at all, only her guardian was permitted to do so; in her case, her guardian was opposed to her making any such application for review of her status. The situation was similar for Mr Kedzior. In the case of Mr Lashin, the Psychiatric Care Act in Russia provides for automatic review of the detention of people held under compulsory detention every 6 months. Mr Lashin was considered a voluntary patient due to being placed there under consent of his guardian, and therefore did not have access to these automatic reviews. He was not able to apply directly himself due to his incapacitated status. In all four cases, the Court found a violation of article 5(4).
The position here is different to that in the ECHR cases. The DoLS makes it very clear that the relevant person is automatically eligible to make a request for a review (para. 102((3) (a)), and the main MCA states in s.50 (1) (a) that an individual who lacks capacity does not require permission to make an application to the Court of Protection. However, why there are no barriers in law, it must be considered whether, in practice and in reality, article 5(4) is met by the DoLS. People who are subject to a DoLS authorisation may not be able to make an application themselves – they may have profound intellectual disabilities or advanced dementia, or another mental impairment which makes it difficult for them to communicate with others, and to formulate their objections. In these instances, how can they ensure they have effective review of their deprivation of liberty? Who is to take the complaint?
An individual subject to a DoLS authorisation is not alone; they have a representative, appointed as part of the authorisation process. The individual themselves may also be supported by an IMCA, and s. 39D(8) requires that an IMCA must take steps to help the individual apply to court or for review by the supervisory body ‘if it appears to the advocate that P or R wishes to exercise that right’. However, there are several problems with both of these mechanisms. Firstly, the representative may well agree with the managing authority and the supervisory body as to the best interests of the individual. Certainly, figures from the Department of Health suggest that just under a third of authorisations were reviewed last year, and only 3.3% of these were brought by RPRs. Secondly, the IMCA support may only happen if an IMCA is appointed in the first place; s.39D(5) does require the appointment of an IMCA if the supervisory body does not feel that either the individual or their representative would be able to exercise their rights without such support. On this basis, if it seems that the individual is protesting or objecting, then an IMCA should be appointed to help exercise their right to review or appeal. However, this does not deal with the issue of those who appear passive, or are not objecting. Either way, only 0.7% of the reviews were instigated by the individual themselves.
People who are subject to a DoLS authorisation may well be in the best place for them, but as the facts of Cheshire West show, the restrictions on their freedom of movement may be extreme, and should be subject to external scrutiny on a regular basis. It is hard to understand why there is an automatic review mechanism for people with mental disorders, who may retain capacity to make an appeal themselves, and no parallel mechanism under DoLS, for people who arguably may be more vulnerable and in need of automatic review. Even if they do not object, it is hard to understand why these restrictions should not be reviewed automatically, in the same way as they are for people detained under the MHA.
The justification, perhaps, for DoLS as opposed to the MHA is that someone deprived of their liberty under DoLS is not going to ‘get better’; if a deprivation of liberty is necessary at one time, it will always be necessary, as nothing is going to change. Yet, the Code of Practice is very clear that authorisations should be issued for as short a time as possible, and everything should be done to reduce the restrictions to a level below the threshold of deprivation.
The recent ECtHR judgments should give us pause for thought. While there are no direct legal bars on review of a deprivation of liberty by a court, there are a variety of practical restrictions which may make the exercise of that right difficult. An automatic review process through the Court of Protection would be unwieldy and impractical, but we should consider an independent tribunal process, like that under the MHA. It does not seem consistent for one form of deprivation of liberty to have this mechanism and not another.
PhD Student, School of Law, University of Nottingham