Why the
Deprivation of Liberty
Safeguards
should matter
Roger Laidlaw
DoLS Co-ordinator for RCT, Merthyr Tydfil
and Cwm Taf Health Board
Speaking very much, in a personal capacity!
Why the Deprivation of Liberty
Safeguards should matter
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DoLS – What is it?
Where did it come from?
Where is it going?
What does it mean for me as an
advocate?
The Mental Capacity Act 2005
Key concepts:
• Mental capacity – an ability to take decisions
effectively, using information and foreseeing
consequences
If an individual demonstrably lacks mental
capacity, others may decide on the basis of:
• best interest – a focus on the circumstances
and wishes of the individual
• by considering the least restrictive alternative
Seeking and considering the person’s views is a
fundamental principle of the Mental Capacity Act:
‘No decision about me,
without me’
‘DoLS’
• Part of the Mental Capacity Act
• Safeguards cover people in hospitals and
care homes registered under the Care
Standards Act 2000
• Became statutory obligation from 1st April
2009
No statutory definition of a DoL!
However, indications may be:
•
•
•
•
Requirement to reside in an institution
Interference with autonomy
Restricting access by family / to outside world
Opposed by the person themselves or
supporters
• Conceived as being more intrusive than a
‘restriction’ of liberty
• Definitions being ‘refined’ by case law
DoLS Procedure in a Nutshell:
• A system of referral and assessment intended to
inquire if a DoL is taking place, if these
arrangements are beneficial for the resident or
patient, and if restrictions can be reduced in
intensity
• Makes Local Authorities and Health Boards the
competent ‘Supervisory Bodies’ to Authorise any
legitimately required DoL thus providing legal
safeguards for the staff giving care or treatment
• Arrangements for scrutiny and review of
Authorised DoLS
DoLS Procedures are not …
• a new set of powers intended to facilitate
oppressive practice and make short-cuts in the
management of clients with challenging needs
easier for hospital and care home ‘Managing
Authorities’
• intended to exclude supporters from decision
making about vulnerable people
• Court of Protection case law makes it clear that
attempting to manipulate procedures to these
ends is simply standing the intention of the
Safeguards on its head.
The intention of DoLS procedures …
• Is to co-ordinate 6 assessments
applying the tests of the MCA with
transparency and rigour to the
specific circumstance of a possible
Deprivation of Liberty and then:
- Note the presence / absence of
a DoL
- Authorise or seek end it
The six assessments
• Is the person over 18?
• Do they have a mental disorder? (the diagnostic
test)
• Do they lack mental capacity to make a decision
about care? (the functional test)
• Is the received / proposed support in their ‘best
interest’?
• Should the Mental Health Act be used instead?
(primacy of the MHA)
• Is there a conflict with another decision making
authority given under the MCA?
• If all tests are ‘positive’, care amounting to
a deprivation of liberty can (and must) be
‘Authorised’ by the relevant Supervisory
Body:
- Authorisation can be given for up to a year
(but mostly for shorter periods)
- Binding conditions can be set on the care
home or hospital ‘Managing Authority’
• The scheme is supposed to focus
awareness on alternative arrangements
and the possibility of reducing restrictions,
mitigating or working to end the
Deprivation of Liberty, for example:
- changes to care plan
- an ultimate return home?
• Regarding DoLS simply as a way
of locking someone up or as
empowering institutions against
the individual or their supporters
is standing Safeguards on their
head
Steven Neary – Does DoLS work?
Victory for
father after
autistic son's
12-month
ordeal in the
clutches of
social
workers
By Daily Mail Reporter
10th June 2011
Where did DoLS come from?
• Long term trends for inclusion and the
promotion of rights for members of
marginalized groups,
• Shift from paternalism to law
• Important legal cases establishing key
concepts / highlighting gaps in law in the
European Court and UK Courts - ‘judicial
activism’?
Background
• An international trend to move away from
the ‘licensed paternalism’ of reliance on
judgments about welfare being part of a
purely professional discourse towards
decision making having to be transparently
justified against externally established and
formalised legal criteria
• (For nerds, consider the ‘Bolam test’)
Background - national legislation
and international agreements about
standards for judgment
• UK Human Rights Act 1998
• Adults with Mental Incapacity (Scotland) Act
2000
• Hague International Convention on the
protection of adults 2000
• Mental Capacity Act 2005
• United Nations Convention on the rights of
persons with disabilities 2006
• A statutory Code of Practice for social care in
England or Wales?
Two key pieces of case law that highlighted gaps
in the law for determining the welfare of
incapacitated people and led to the development
of the DoLS regime
• The “Bournewood” case, HL vs UK – a
ECtHR case - UK Govt found to be in
breach of Article 5 of the European
Convention of Human Rights.
• DE and JE v Surrey County Council
Article 5 of the European Convention on
Human Rights (ECHR)
• 5.1. Everyone has the right to liberty and
security of person. No one shall be deprived of
his liberty save … in accordance with a
procedure prescribed by law
• 5.4. Everyone who is deprived of his liberty …
shall 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.
The Bournewood Gap
• The absence of an article 5 ECHR compliant
legal framework
The Gap also existed because:
• MHA did not apply to care homes
• Excludes most people with a learning disability
• Not used for people who do not or cannot object
to admission
Problems with DoLS
Bad drafting and poor planning of scheme:
• Includes an obvious and immediate
conflict of interest as LAs and LHBs are
both poachers and gamekeepers, as
purchasers / commissioners or providers
of care that may amount to DoL and the
legal authorities appointed to Supervise
and Authorise DoL
Problems with DoLS
• Limited commitment of resources by some
authorities
• No coverage of supported living
arrangements based on tenancies (the
jurisdiction of the Court of Protection
applies)
Problems with DoLS
• A ragged interface with the Mental Health
Act: Justice Peter Jackson, said it’s
‘regrettable’ this is difficult to understand
even by lawyers and professionals
• Poor and patchy implementation: widely
varying rates of applications and
authorisations
Problems with DoLS
• Recent case law has arguably narrowed the
scope of the scheme by narrowing the scope of
what might be a DoL by focussing on ‘context’
and comparison with care arrangements in
similar cases and considering ‘relative normality’
when considering limits to autonomy
• This may not in itself be a problem but many
respected commentators think this might be a
retreat of HRA criteria from health and social
care
• Since MCA / DoLS was implemented in its
present form because of judicial concern
and some of the same individuals who
‘made’ the case law seem now in more
senior legal roles to be restricting the
scope of judicial oversight this can be a
little puzzling!
Low rate of reviews, a key factor
• Certain high profile cases notwithstanding, and
though intended to give a route for valid
challenges, in general, review activity under the
Safeguards has been extremely low
• Historically, the under the MHA, a high rate of
challenge to detention based on effective
scrutiny under an authoritative legal regime is
probably the key factor is making professionals
and organisations respect the rights of people
with mental health problems
Second class liberty?
High thresholds for inclusion in the
scheme, confusion about key issues,
limited and patchy implementation,
ineffective review regime:
• Does DoLS represent ‘Second class
liberty’?
• A lack of legitimacy and effectiveness has
led some more hostile commentators to
conclude ‘DoLS is Dead’
What next?
• Further developments in case law
• The ‘West Cheshire case’ is in the
Supreme Court October 2012 and may
establish clarity about what constitutes
DoL / establish legitimacy of process / may
end or cool an overheated discussion
Compliance with international
law requirements
• MCA / DoLS out of step with approach in
other legal jurisdictions in some respects:
• An approach of ‘supported decision making’
instead of an allegedly ‘paternalist’ best interest
approach
• In European law detection of ‘DoL’ focussed on
objective measurement of autonomy and
restriction, not ‘comparitors’
Undeniable that ‘Human Rights’ have
become a political football. Will this
have an impact on social care and
medicine which are increasingly reliant
on ECHR standards, e.g. art. 14
outlawing discrimination?
• Removal of HRA from E and W law?
• Replacement with a ‘Bill of Rights’?
• A big change or in fact little impact?
However,
• DoLS is still law
• There are no plans to remove the scheme from
the law books
• Legal reform for MCA and MHA has previously
been measured in decades!
• If DoLS ‘falls’ or even if HRA should be removed
from British law, the case law precedents will
remain in England and Wales law
• DoLS would undoubtedly have to be replaced by
an alternative legal regime (and probably
something odder and uglier!)
• The long term trend towards the formal
recognition and support of the rights of
service users, patients and vulnerable
people as citizens through a legal
framework is based on fairly fundamental
changes in society and social attitudes
and will probably continue … and
meanwhile:
DoLS isn’t dead –
it just smells funny
What does it mean for me?
Advocate roles in DoLS
• DoLS may be a mess but the only occupational group
coming out of the case law reports with uniformly
positive comments seem to be advocates!
• Being consulted in assessments about users’ views
• Ensuring that processes are followed
• Acting as paid representative, depending on local
commissioning arrangements
• s. 39 IMCA giving support to representatives and making
the protections work
• Third Party referrals in DoLS: initiating assessments
Third party DoLS applications
• Anyone at all can notify the Supervisory Body of a
potential DoL: sometimes just asking about DoL is
sufficient for an authority reconsider a care plan
• Few explicit 3rd party referrals are made, and most
are made by professionals or advocacy staff
• There is a suggested form but completing this is
not a requirement
• Hospital and care home staff, care managers, duty
officers and complaints staff need to be alert to this
issue and assist people contacting DoLS Coordinator
DoLS and Safeguarding
• DoLS giving legal ‘teeth’ in Safeguarding
cases, can authorise:
• A placement or further hospital stay as part of a
protection plan
• Setting limits on contact and association with
potential abusers
• A proposed social care Code of Practice may
enhance statutory powers for organisations
involved in safeguarding and existing DoLS
powers may complement this
Summary – why should DoLS matter?
• MCA and DoLS give a common
terminology and set of tests for
discussion about service user
welfare and self determination
Summary – why should DoLS matter?
• A potentially powerful set of
safeguards for challenging the
arbitrary or careless use of legal
and professional power which are
being under-used.
Summary – why should DoLS matter?
• If you don’t understand the
processes clearly, and can be
bamboozled by professionals,
your assistance to service users
will be less effective.
• If you don’t understand DoLS seek training!