Deprivation of Liberty

Are we Getting it Right?
Trish O’Hara February 2016

I continue to have an believe in the necessity of adhering to Article 5 of the ECHR and delighted that Lady Hale pointed out that however golden the cage, it is still a cage.

But, the new threshold following the Cheshire West ruling :-

Continuous supervision and

Lacking capacity to consent to remaining

And how it falls within the Human Rights legislation:

The objective element: i.e. that the person is confined to a particular restricted place for a non-negligible period of time;

The subjective element, i.e. that the person does not consent (or cannot, because they do not have the capacity to do so) to that confinement;

State imputability: i.e. that the deprivation of liberty can be said to be one for which the State is responsible.

It seems to have created an unprecedented amount of paperwork for those who, perhaps, need to be focussed on emergency situations in hospital.

The Law Commission’s consultation paper published 7 July 2015 (consultation ends Nov 2015) suggests comprehensive replacement scheme.

Renamed protective care: Separate scheme to apply to hospitals & palliative care settings: shorter stay than long term care & aim is for person to return home

Supportive care: To people living in care homes, supported living or shared lives accommodation

Restrictive care and treatment: Provide direct replacement to DOLS: Whether care & treatment arrangements are becoming sufficiently intrusive/restrictive to justify enhanced formal safeguards

To include: continuous supervision and control, person not allowed unaccompanied to leave premises or unable to leave. To include where barriers are being used, the person’s actions are controlled. For example significant restrictions placed on diet, clothing or contact

We are yet to see the agreed changes expected in 2017. Let’s hope those changes will continue to uphold rights but remove some of the cumbersome red-tape involved in realising them.

The Cheshire West ruling works well for those living in residential care homes, nursing homes and hospices but am not sure this is money well spent on those in Intensive Care Units and in transportation from one hospital to another. It seems to me that those completing the assessments – such as Section 12 doctors and Best Interest Assessors are in the lucrative situation of charging £250 or so to assess people who are sick in hospital for a week or so. The nursing staff having to make applications, to spend time with the assessors – all of which is time away from using their expertise in keeping the person alive. I am aware that on many occasions, assessors have gone out to complete an assessment and the person has either gained capacity or indeed died or been discharged. I expect the assessors are still paid for their time and yet more public money is swallowed by this over-zealous interpretation of the ruling.

Of course, when a patient is resisting treatment and needing restraint, there needs to be protocols in place to ensure it is to maintain the life of the person, but can this not be regulated within ordinary hospital procedures?

Although £25 million has been promised by the Government to help authorities process DOLs – Public monies are a dwindling resource as services face further cuts. Surely, there needs to be a common sense approach to deprivation and when it is necessary to authorise it.

Yes, all patients should be prepared to sign consent for a time when they may not have capacity, following an operation and yes the MCA is a wonderful piece of law that protects the rights of all of us. But, the idea that a person who has suffered perhaps a head injury and needs to take an ambulance for numerous hours to a specialist hospital needs a DOLs seems to me to be wasting peoples time and money.

I am not sure there is enough emphasis yet on getting this right where it needs more attention, time and money spent.

Although I have seen a change in demand for training from Home Care Agencies and Supported Living Providers – I am still sure there are many who are involved in supporting a deprivation in a persons own home, not registered, still untrained in the subject and perhaps believe it ‘does not apply to them’. Not realising that they too need to make applications to the local authority who can then make sure it is sent to the Court of Protection for authorisation or refusal. Indeed, it is the Court of Protection what give us the case law that challenges and progresses our practice.

Do families understand that deprivation of liberty may be seen as false imprisonment?

Do enough care homes understand the right for people with capacity to make unwise decisions?

Do we warn families of people who are held within DOLs, that if their loved one should die ‘within state detention’, there may be a long wait before burial is possible due to the legal requirement for there to be a coroners report.

Surely, these are the areas of real concern. And where assessment and monitoring is most needed.

I await 2017 publication with much anticipation.