Applications and authorisations: implications of recent judgments, House of Lords Report / Government Response implications for Local Authorities Paula Scully Adult Care Solicitor Derbyshire County Council
Jargon! MA -Managing Authority RP- Relevant Person who is subject to DOLs BIA- best interests assessor; MH Assessor- Mental Health Assessor SB - Supervisory Body RPR- relevant person s representative DOLs IMCA- Independent Mental Capacity Advocate Authoriser- (not Signatory), DOLS decision maker DOL-Deprivation of Liberty DOLS- Deprivation of Liberty SAFEGUARDS Authorisation
Cheshire West SC Judgment Acid test- person without capacity to consent to being accommodated for care / treatment is under continuous supervision and control and not free to leave= DOL. State responsible. DOLs can issue if a care home/hospital If DOLs not possible, will need to go to COP for orders from 16-18 and adults for authority for DOL in community and domestic settings
Recent judgments of significance Cheshire West judgment- more inner focused on what is occurring in the residential settingdegree of supervision, support, control, size of package, why they are not allowed to leave Let s not forget the Neary judgment- ref! Breaches of Article 8 rights - duty on Local Authorities to promptly bring unresolved welfare disputes to COP rather than use DOLs to avoid resolving issues with family & relevant person
Role of the State/LA Storck v Germany the State has a positive obligation to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a DOL of which the State have or ought to have knowledge So, if a Council/Trust know of DOL in a person s own home, there is a duty to take it to Court if carer does not stop DOL
Re X & Ors (DOL) [2014] EWCOP 25 Establishes process for COP authorisation for DOL in Supported living and domestic settings Separate proceedings for each person Medical evidence of unsoundness of mind (A5 ECHR)- GP will suffice, but likely to want a fee Lack of capacity proof Care and treatment plan How the State is responsible for the DOL Draft order, length of order, specific conditions Best interests analysis and no less restrictive option Wishes of P and family- do they support DOL? P s eligibility for legal aid if order on papers, no legal aid.
Re X -2 Reasons for urgency Contentious issues for the Judge to assist in deciding whether paper or oral hearing;- Objections by P or family Issues around best interests Non contested issues will be heard on papers but with right to oral hearing if request made. 50 pages max for the application Can do one statement setting out similar regime for a no. of people in the same SL placement but must issue proceedings for each person P to be given opportunity to become a party, and even if not a party to be given support to participate and share views. If given support but does not want to be a party, then will not become a party If P becomes a party, then must have litigation friend who does not need to act via a solicitor/counsel but needs court s permission to so act Review of order every year
Implications for Re X COP forms being amended No RPR for P when court order for DOL made Who will agree to act as Litigation Friend- family member, IMCA, disability advocate? Do you move P from hospital to SL before court order obtained or after? Risk that P s best interests and A 8 rights infringed if he stays in hospital waiting for months for an order approving DOL when moves to SL But see PS and Salford judgment below- need to obtain DOL authority before move to SL where DOL will or may occur
Implications of Re X Many people with LD in SL placements may have severe communication problems and severe incapacity How will their views be elicited? Will ISWs/SALTs be appointed to try to elicit views or will family s views be assumed to represent P s views/ Should Local Authorities commission advocacy services to act as LFs to ensure P is represented? Implications for legal aid budgets if P always represented LA budgets- 400 per application and 500 hearing fee will COP still charge hearing fee if hearing is not oral? Will GPs/Psychiatrists cooperate in certifying unsoundness of mind? Will a different SW but employed by LA do the capacity assessment or will Doctors do it? 150 minimum
Implications of Re X Should Local Authorities ask mental health assessors to complete medical /capacity reports for COP? BIAs too busy to do BI Assessments for COP- use them to train up SWs and senior practitioners to do BI assessment Preferably P s SW should not do BI assessment, but use more senior SW COP did not extend urgent authorisations which had expired after 7/14 days COP has a rules committee to improve COP Rules
Implications of Re X Will cash strapped Local Authorities consider moving some Ps to care homes and use DOLs rather than take COP proceedings for DOL order? What will COP do re orders of DOL for sex offenders in SL- danger that Police and Psychologists want Local Authority to contain/preventatively detain this P to prevent him offending Is MCA appropriate for control orders against sex/violent offenders or should there be a new regime for such offenders lacking capacity to make decisions about these matters?
Implications Cheshire West More s21a DOLs appeals to COP as non compliance with Statutory deadlines Will COP extend authorisation granted on flawed application form 4 or substitute its own order If DOLs authorisation removed by COP, no RPR, will impact on role of RPR as Litigation Friend and legal aid of P
Y County Council v ZZ (2012) MHLO 179 (COP) Court held that the restrictions, close supervision and escort into the community on paedophiliac were in his best interests. They were designed to keep him out of mischief, to keep him safe and healthy, to keep others safe, to prevent the sort of situation where a child s relative wanted to do him serious harm, and they were there to prevent him from getting into serious trouble with the police.
J Council v GU & Ors [2012] EWHC 3531 Paedophiliac had his telephone, correspondence and movements monitored. He was also strip searched at times. The restrictions were so severe that a special policy was prepared dealing with the restrictions. The long term restrictive regime accompanied by invasive monitoring required review by the Trust and CQC from time to time as they were such serious restrictions of his Article 8 rights. if he had been in a secure psychiatric hospital, he would have been subject to statutory safeguards but there was no similar guidance for those detained under DoLS.
A Local Authority v A & Ors [2010] EWHC 978. Local Authorities do not have power to regulate, control, compel, restrain, confine or coerce other than where they have statutory powers to do so. No specific power authorising LA to confine offender in case he harms others, though if he does, then risk of harm to him by interfacing with criminal justice system
Re PS an adult [2007] EWHC 623 Court has power to direct that a person lacking capacity shall be placed at and remain in hospital, residential unit, care home or secure unit and be detained there Use of reasonable force (if necessary) to detain him and ensure that he remains there Detention must be authorised by court before the detention commences Must be unsound of mind of a kind or degree warranting compulsory confinement
Recent judgment- 16-18 year olds Liverpool City Council v SG & Ors [2014] EWCOP 10- person now over 18 in a children s home can be deprived of their liberty. Duty on LA to apply to COP for order authorising DOL. Judgment was based on an agreed position of the parties, so did not overturn Ofsted & COP DOL Guidance for Providers of Children s Homes and residential special schools 12.2.14 That guidance stated COP had no jurisdiction to order DOL which would breach Children s Homes Regs 2001 as amended. COP still to decide whether Ofsted Guidance is still applicable to the 6500 Young Persons over 16 still residing in care homes, children s homes & residential special schools
Re GJ, NJ and BJ (Incapacitated Adults [2008] EWHC 1097 (Salford 1) The detention must be authorised by the court on application made by the local authority and before the detention commences (as per Re PS). Care plan setting out why DOL required and how Reasonable & proportionate measures to be taken to prevent BJ leaving and measures amounting to DOL within the facility Prevent a risk of harm to himself and/or to others Measures to regulate when BJ may have contact with family, friends and acquaintances and for GJ, permission to refuse such contact
Re GJ - 2 Court recognised resource issues concerning regular reviews by the Court but with DOL, resources are at end of the list 1 st review after perhaps ex parte order within 4 weeks Court review every 12 ms after final order (A5(4)) LA internal reviews 8-10 weeks Official Solicitor to remain litigation friend to attend internal reviews/court reviews At review, brief reports from ISW on best interests; independent psychiatrist on capacity & best interests and from P s Social Worker Liberty to apply at short notice; reviews do not have to be oral hearings; preferably before the same Judge
Salford City Council v BJ [2009] EWHC 3310 (Fam)- Salford 2 Court review may be on the papers, but with the safeguard that the parties would be entitled to request and the judge to require an oral hearing where appropriate LA internal review every 6 ms Court review every 12 months LSC accepted that prior to each review a yearly public funding certificate may be sought to enable OS to act as LF
Recent judgment- capacity to consent to DOL Some Assessors may decide that the RP has capacity and thus no DOLs can be issued Has the Assessor considered the correct questions? Consider the concrete situation & their understanding of it. The information which must be understood, retained, used and weighed extends to some information about the context in which the deprivation is being imposed, i.e. the care /treatment regime not just the DOL itself (A PCT v LDV [2013] EWHC 272 (Fam))
Recent judgments- duty to work together NH NHS Foundation Trust v ML (2014) EWCOP 2- COP criticised polarised professionals some[ professionals], though certainly not all, witnesses have overstated their cases, been selective in their use of material, emotive in their use of language, disrespectful to those who hold contrary views. Need to effectively work together to obtain best outcomes for RP despite different professional beliefs.
Implications of recent judgements what has changed? Cheshire West-positives- increased scrutiny of extent of supervision /control and more adults under DOLs Negatives- chaos in Supervisory Bodies, more breaches of statutory deadlines, concerns at liability issues arising from unlawful Dol created by not issuing authorisations in time
Liability for delays in taking welfare dispute to COP Local Authority v Mrs D (2013) EWHC B34 (COP) LA-non-admission of liability but agreed apology for the delay in bringing proceedings; (b) 15,000 to Mrs D; (c) to pay costs (d) 12,500 to Mr D; (e) to pay Mr D's costs 6 weeks before 1 st DOLs issued; Successive DOLs authorisations stating that they were conditional on COP application being taken but none taken for 10 months; Mrs D very distressed at not returning home
What should a managing authority consider before applying for a DOLs? What are the Person s wishes about where they live and care/treatment regime Have they capacity to decide on residence, care package and DOL? Examine your own care plan; any mismatch between the plan and what is happening and with the Local Authority/Health care plan? Scrutinise behaviour management plan especially restraint and PRN medication Review care plans with commissioner /professionals to reduce continuous supervision and control Does the person need that level of control? Is it generated by a risk adverse /over protectionist perspective? Is there a welfare dispute with P? Is there a contact dispute with family? Is DOLs appropriate to temporarily deal with the dispute pending commissioners applying to COP?
What should a managing authority consider before applying for a DOLs? If restrictions cannot be reduced, and it is in P s best interests to continue them, contact DOLs office for advice re current workload, pros and cons of urgent authorisation, and whether Supervisory Body is able to issue standard authorisation within 7/14 day period Decide what strategies to adopt if SB not complying with statutory deadlines Complete form 4/form 1 correctly- correct timelines, correct LA for Ordinary residence
Acute Hospital Managing Authority Why is the person under continuous supervision and control? Will this continue beyond a max of 7 days? Is the patient under 1:1 care or not Could medication be reviewed to control symptoms leading to the need for more intensive supervision Prioritise patients objecting to their stay, family internal conflict or with Hospital Has your discharge planning process started promptly so no delays in appropriate discharge?
Psychiatric Hospital Managing Authority Patient centered focus on MHA sectioning v DOLs v informal incapacitated Support patient to have capacity to consent to stay Work with families to help them understand Cheshire West so as to reduce anger about stigmatisation from sectioning- promote rights and best interests approach More s117 costs for Health and Adult Care
Coping with increased number of applications MA perspective- some panic, bulk applications to get everyone under DOLs- counter productivetriage applications at highest risk first. Identify welfare disputes that commissioner should take to COP because of Neary judgment - Could a trial package at home test whether in P s best interests to return home? Examine risks that created restrictive practices that led to DOL. Can they be reduced?
Coping with increased DOLs applications Senior Management LA appoint more authorisers, more BIAs, ensure MH Assessors willing to do additional work Cascade information to frontline social workers to prioritise review of people objecting to staying in care, resolve conflict cases, seek legal advice promptly on Neary type cases Appoint more in house lawyers to cope with additional burden of COP DOL authorisation cases Review practices in LA owned homes ensure compliance with Cheshire West
Urgent authorisations- pros and cons In law - designed for circumstances where Dol is occurring and restrictions cannot be reduced pending outcome of DOLs application; protects Managing Authorities from unlawful DOL but can be criticised as giving MA excessive authority without scrutiny In practice- majority of applications for DOLs accompanied by urgent authorisations If urgent issued inappropriately, courts will criticise MA, so stick to legal grounds.
Urgent authorisations- pros and cons Currently urgent authorisations likely to be extended to maximum period of 14 days HR lawyers critical about automatic extensions of urgent authorisations as Supervisory Body has not scrutinised why the person is under a DOL and statutory grounds may not be strictly complied with Supervisory Bodies may not be able to issue standard authorisations within 14 days because of Cheshire West pressures
Urgent authorisations Is it best not to issue urgent authorisations until MA has checked with SB that they can issue standard authorisation within 7/14 day period? Assessments must be done within 7/14 days and authorisation issued within that period Risk of unlawful DOL v risk of Supervisory Body issuing authorisation beyond 14 th day which may be of doubtful validity as urgent had expired If no authorisation, then MA cannot issue fresh urgent authorisation again, will have to apply for a standard authorisation only 21 days then for it to issue.
Urgent authorisations Section 21A appeal to Court of Protection can be issued against an urgent authorisation Legal challenge can be mounted if no authorisation and DOL is occurring v risk that SB will not issue a standard authorisation within 7/14 day period and MA will need to reapply or risk that SB will issue SA outside of statutory max of 14 days MA seek legal advice who then liaises with SB s lawyer.
Assessment process- BIAs BIAs scrutinise systemic & individual care management processes that result in DOL Identify unresolved disputes about where the person should live and their contact with family/friends Enhance knowledge amongst Managing Authorities of capacity & best interests processes Improve quality of services by using conditions as a strategy to resolve Neary disputes and the way care package implemented and reviewed
Difficulties for independent BIAs No access to electronic social work records May do visits at night/weekends when manager or key worker off Difficulties in obtaining prior assessments about P as data protection requirements may restrict electronic transmission More willing to insert robust conditions directing LA to do something than perhaps some LA BIAs
Assessment process- Mental Health Assessor May also be the capacity assessor May need additional training on assessing capacity for DOL Ensure Assessor informed of relevant capacity and risk assessments Identify suitability of DOLs v detention under MHA Identify poor medication reviews Collaborative practices with BIAs enhances sharing of knowledge cascaded to colleagues in the Trust and Adult Care
What to do when P held to have capacity by Assessor Cannot authorise DOLs Is P still being deprived of liberty? This must stop- seek consent to care/treatment arrangements and to stay there Preferably advise P that should seek legal advice Draw up consent document re terms of stay If decides to leave, be careful about preventing thisrisk of false imprisonment claim Ask DOLs office promptly to consider asking assessor to review decision, share prior reports/assessment re capacity relevant to DOL
Authorisation process - Authorisers Not a signatory - implying a passive exercise rather than a quasi judicial process of ensuring RP s human rights and best interests- see Neary judgment Usually senior management level- what are the boundaries of their roles & relationships with Assessors and DOLs leads? Authorisers must encourage better DOLS/MCA compliance by frontline social workers on the quality of capacity assessments, care plans and resolution of family disputes Feedback to Managing Authorities at MCA/DOLS forums etc
Restrictions on what Authorisations can do BIAs may insert conditions directed at commissioners/social workers/ health workers to expedite review of care plan; and Conditions to push social workers/health workers to resolve conflict with family or the person as to where P should live DOLs Forms state that conditions only directed to managing authority, but the power to solve issues may rest with other bodies.
Restrictions on what authorisations can do - 2 No sanction in DOLs if conditions not fulfilled On application to renew DOLs, BIA may insert tougher conditions and suggest shorter renewal period to put pressure to solve issues Local Authority front line staff should welcome conditions, as if implemented, may save Court challenge and criticism by Judge BIAs /SBs experience defensiveness amongst professionals resistant to changing practice.
Reviews of Authorisations Family, care manager, managing authority and relevant person s representative can seek review Supervisory Body can initiate its own review when it receives concerns about DOLs authorisation- can amend conditions, revoke DOLs but cannot change time period RPR should request SB to review before section 21A appeal to COP Cheshire West causing longer authorisations but dont issue all for 12 months as will have a crisis when they all expire in 12 months time!
Role of RPR in DOLs Relevant Person s Representative -critical role to make DOLs effective Empowers family members to act for the person Complexity of DOLs inhibits effectiveness of family RPR but can seek IMCA to support them Families more reluctant to appeal authorisations to COP compared to paid RPR Paid RPR willing to act as litigation friend for RP in COP Develop role of RPR to act as LF for the person
Role of DOLs Leads- mysterious? No statutory provision for DOLs lead, only for authoriser Is it the head of the Supervisory Body or the head of the Secretariat that processes DOLs on the SB s behalf? DOLS leads may be middle management while authorisers are senior management Does the DOLs lead act as authoriser or sometimes as BIA? Who acts as supervisor of staff acting as BIAs? Head of Supervisory Body or DOLs leads? How to resolve accountability of roles and possible tension between DOLs lead roles and Supervisory Body authorisers? Will additional authorisers come from middle management and will this create more conflicts of interest?
House of Lords Report- Implications for LAs DOLS is not part of the safeguarding agenda Replace DOLs with something more compatible with MCA principles Simplify Forms and DOLs law Clarify interface between MHA and DOLs Assist professionals to identify DOL situations better and to use DOLs appropriately Move from protection/paternalism to enablement /empowerment
House of Lords Report -2 Help people understand purpose of DOLs as deprivation of liberty term is alienating Professionals to actively enable supported decision making Enhance role of Relevant Person s Representative to effectively safeguard rights Mediation -a pre requisite for COP? Public authorities to create clearer guidance on which disputes must go to COP Create effective oversight of Supervisory Bodies
Conflict Resolution - Neary type disputes Need research on how many authorisations issued because the person or/and family do not want them to live in care as distinct from DOLs because of restrictions imposed in the care plan Cost of COP applications and complexity of forms and fear of criticism deters Local Authorities applying to Court to resolve disputes
Government Response LA implications Valuing every voice, respecting every right - DoLS protects P s right to liberty under A5, prevents unlawful DOL, protects / empower P. DOLs regime safeguards person s best interests; less focus on deprivation of rights. Integrate DOLs into care planning - reduce restrictions / restraint and avoid a DoL in the first place- harder to do since acid test.
Government response -3 DOH will redraft forms to create a less burdensome system by end November 2014. Government has asked Law Society s Mental Health and Disability Committee to draft up to date guidance on deprivation of liberty case law February 2015. ADASS task force with partners is assisting local authorities to work through the implications of Cheshire West
Government Response -4 Law Commission asked to look at DoL in supported living and draft a new legal framework Recently extended to review DOLS regime within MCA and how it can be monitored. Consider improvements recommended by HL report: ensure DoLS regime complies with MCA s ethos; are clearly drafted and easily understood, consider how to strengthen the Relevant Person s Representative s role and ensure effective oversight of the supervisory body Law Commission will report by 2017 including a draft Bill
Government response on interface MHA and DoLS Draft revised MHA Code of Practice to include a clearer chapter on this interface Disputes a gap between MHA & DoLS as the High Court s inherent jurisdiction could provide authority to deprive a patient detained under the MHA of their liberty for medical treatment unrelated to the patient's mental disorder.
Looking ahead: what the future holds Simplify DOLs forms and COP forms Ensure Local Authorities adequately funded to allow Supervisory Bodies to administer DOLs within tight statutory deadlines Respect Article 8 rights of P and family more- question the appropriateness of DOLs for preventing abuse and as a way of avoiding disputes escalating Prevent DOL by resolving disputes early and make advocacy and mediation available to facilitate this resolution. Train senior social workers to become mediators to champion ADR within LA Fund 3 rd Sector to offer mediation for disputes with Health and Social Care agencies
Conclusion Need to address legal aid gaps between right to non means tested legal aid for s21a appeals but means tested for COP for DOL in supported living Should there be a multi disciplinary tribunal to grant/review DOLs first, with an appeal to Court? Would government reconsider temporary legislation to extend DOLs to SL with RPRs also extended, to reduce massive public costs of applying to COP?