Health: Deprivation of Liberty Safeguards
(9 years, 9 months ago)
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Baroness Finlay of Llandaff
To ask Her Majesty’s Government what impact the Supreme Court’s March 2014 judgment on Deprivation of Liberty Safeguards has had on healthcare.
Baroness Finlay of Llandaff (CB)
My Lords, I am most grateful to the House for allowing this debate to occur at the end of the day today. It relates to the so-called Cheshire West judgment of 19 March 2014 and its impact on healthcare. The background to that judgment was most eloquently laid out by my noble and learned friend Lord Brown of Eaton-under-Heywood in the debate on the Mental Capacity Act 2005 that we had last week on 10 March.
In the judgment itself, the noble and learned Baroness, Lady Hale, said:
“This case is about the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, then the deprivation has to be authorised”.
I will cover briefly why it was felt necessary to clarify the issue. There appear to have been relatively few authorisations under the deprivation of liberty safeguards: in 2009-10 there were 7,157 and in 2012-13 there were 11,887. The noble and learned Baroness went on to say that,
“it would not be at all surprising if those arranging for the care of people with severe learning disabilities were reluctant to see those arrangements, made in what they think are the best interests of the people concerned, as also depriving them of their liberty”.
In response to the question of whether the deprivation of liberty is the same for all people, the noble and learned Baroness also said that,
“the whole point about human rights is their universal character”.
Indeed, the state of liberty—as defined by the noble and learned Lord, Lord Kerr of Tonaghmore, as,
“the state or condition of being free from external constraint”—
should therefore apply to everyone, irrespective of their disability of any sort. The Supreme Court laid down an acid test of circumstances that are likely to amount to a deprivation of liberty: namely, that the person is under continuous supervision and control, is not free to leave and lacks capacity to consent to these arrangements.
The important conclusions from this judgment are, first, that living arrangements amounting to a deprivation of liberty for a non-disabled person are a deprivation of liberty for a disabled person. In other words, there is parity. Secondly, if a person in a supported living arrangement in the community, care home or hospital setting is under continuous supervision and control, and is not free to leave, their liberty is deprived no matter the reason for the confinement. Thirdly, the person’s compliance or lack of objection is immaterial. Fourthly, periodic checks need to be in place to ensure that any legal justification for such confinement remains in place.
The judgment is clearly written, but it has had wide impact, which is what I want to address. The cost to councils arising from the changes as outlined in the judgment is estimated to have increased by more than £98 million—from the £35.2 million available in 2014-15. That is the estimate from the Local Government Association and the Association of Directors of Adult Social Services. There were 13,000 DoLS applications in 2013-14. Following the judgment, there have already been 86,500. Given this pressure, I ask the Minister: are the decisions made by assessors being scrutinised to ensure that hasty decisions are not made in the context of what is effectively a massive increase in demand?
There has been a reduction in the forms relating to DoLS, which have gone from 42 pages down to 13, and a streamlined process for applications was introduced by the Court of Protection to help cope with the increased demand. However, have families and advocates been asked for their views on the forms and how they are working for individuals?
As a result of the judgment, there has been a significant increase in the circumstances in which deprivation can be seen to take place, such as in hospice care, intensive care units and ambulance transfers, to give just some examples. In many circumstances, there is confusion for healthcare professionals about what amounts to a deprivation of liberty. It appears to be leading to a defensive and bureaucratic mindset, with a risk of stigmatising the care and those being cared for. As a recent paper on ethics and law pointed out:
“The acid test framed by the Supreme Court was not decided in the intensive care setting. However, the concept of a deprivation of liberty is not context-specific, so is capable in principle of applying in this setting. Due to their circumstances, most patients in intensive care units would seemingly fit the ‘acid test’ criteria, and it could therefore be construed that we are depriving them of their liberty. This is supported by a recent case (published 28 August 2014), in which a judge applied the Cheshire West acid test to a maternity unit in a general hospital”.
Can the Minister help to define the scope of the implications of the Cheshire West judgment and say whether it is seen to be appropriate to interpret the implications so widely?
There has been little guidance for families and healthcare staff about how to respond to the judgment. Perhaps I may quote from the experience of a hospice consultant, who has asked to remain nameless but said that:
“The organisation that manages the hospice has become very legalistic and is suggesting that we need to complete a DOLS application for all patients who become unconscious at the end of life—arguing that they have lost capacity and therefore are subject to a DOLS. This causes distress to families and delays the issue of death certificates as the death has to be referred to the Coroner and they hold a ‘desk inquest’ and issue the certificate, but maybe after 2-3 days delay”.
Other hospices have also expressed rising concerns, saying that they have felt impelled to apply for DoLS assessments for all dying people.
A very helpful and detailed letter, of 14 January this year, written to the DoLS leads in local authorities and the NHS by Niall Fry, the MCA DoLS policy lead at the Department of Health, addresses the situation of hospice patients. The letter said that,
“if a person receiving palliative care has the capacity to consent to the arrangements for their care and does consent, then there is no deprivation of liberty. Furthermore, if the person has capacity to consent to the arrangements for their care at the time of their admission or at a time before losing capacity, and does consent, the Department considers this consent to cover the period until death and that hence there is no deprivation of liberty”.
The letter also outlines that “continuous control and supervision” needs to be differentiated from a normal care situation, when you would of course expect there to be close monitoring of a patient and indeed, possibly close supervision, particularly of a very vulnerable person on a ventilator, for example.
The guidance letter is not clear on whether the consent referred to must be in writing, the level of particularity required, nor the extent to which advance statements of wishes, lasting power of attorney or advance refusals of treatment may be sufficient to indicate consent, particularly in relation to their timeliness. The guidance is from the Department of Health but, unlike the Supreme Court judgment, it does not, of course, have legal force, which results in further difficulties and confusion.
A practical issue is the inconsistent interpretation of what may constitute a deprivation of liberty, leading to variations in practice, confusion for hospices and other providers, and distress for patients, families and carers. Hospice stays are on average 13 days across England. As a process of applying for a standard authorisation often takes much longer than the average stay, this means that patients are often discharged or have died mid-process. This can distract staff away from care. The DoLS application may not be completed before the patient dies, and the process causes potential trauma for the family. It does not appear to increase care quality.
Hospices can use urgent authorisations at the time of applying normally, but an urgent authorisation lasts for a maximum of seven days. If that is granted but expires, there is a gap until a formal application is processed. Given our inability to predict life expectancy accurately, even at such a short time, the urgent authorisation frequently expires. As an application for DoLS is setting specific, for a patient transferred to a hospice in-patient unit with a DoLS authorisation in another setting, such as a hospital, the process has to start again. Although it should be started prior to transfer, this can now result in delayed transfers.
What is the position of a patient who requires a home-care package and whose discharge for that home-care support is delayed because the care package cannot be put in place? Are these delayed discharges depriving patients of their liberty if they want to go home and have any impairment of capacity and are not taking their own discharge? It seems that the Law Commission review is urgent. Given that the earliest that draft legislation can be laid is summer 2017, I ask the Minister: is there a need for a test case to appeal to the Supreme Court against the West Cheshire judgment and its implications for hospices and other healthcare settings? If so, who should do this and how would it be funded? On what basis would a test case be brought?
Lord Hope of Craighead (CB)
My Lords, it is customary on these occasions to congratulate the first speaker on having obtained the debate to which we are privileged to listen. However, I think that it might also be right on this occasion to commiserate with the noble Baroness, Lady Finlay, partly because of the small number of noble Lords who have put down their names to speak but also because, in a way, much of the force of what was to be discussed was taken away by the debate to which she referred, which took place on 10 March, last week. There were 10 speeches on that occasion, including a speech by the noble Baroness herself, a speech by the noble and learned Lord, Lord Brown of Eaton-under-Heywood, and a speech by the noble Baroness, Lady Hollins, who I am glad to see in her place. The noble and learned Lord, Lord Brown, indicated to me earlier that he thought he would be unable to be present this evening, although I see that he is in his place just now, for a while at least.
As the debate today is directed to the decision of the Supreme Court in the Cheshire West case, I felt that I should step into the breach and put down my name, but I emphasise that I have no expertise in mental health law, nor do I have any knowledge of the operation in practice of applications for authorisation under Section 16 of the 2005 Act or the deprivation of liberty procedures under Schedule 1A for those detained in hospitals and care homes. Given those shortcomings, I felt it might be helpful if I said a few things about the judgment itself, about the test which it lays down and, as far as I can, on what is to be done about the case, although I am not sure that I can answer all the questions in the noble Baroness’s exam paper which she set before us a few moments ago.
The judgment itself is very interesting from the juridical point of view because it is one of those rare examples of the court going further than the Strasbourg court has done. There is a great deal of debate about the relationship between the United Kingdom courts and the Strasbourg court, and most of those debates concentrate on the other side of the coin, which is giving effect to or following Strasbourg, when people say that we should be more robust and not do so. This is a quite different thing. This is stretching the application of the convention rights beyond what Strasbourg has thought it right to do and has yet had to consider by cases that have come before it. There are some who point out that that gives enormous power to the judges to, in effect, create law. This is perhaps an example of that. I am not criticising the court for doing that, but it is an interesting example of a rather unusual situation.
It was a majority decision of four to three—a borderline decision, as the noble and learned Lord, Lord Brown, said, but a decision it was. I entirely agree with the noble and learned Lord that it is not for us to say how we would have resolved it. We take the decision as it stands. It is worth recording that the noble and learned Baroness, Lady Hale, who wrote the leading judgment for the majority, was without doubt the best qualified of all judges to express an opinion on the subject. She has made a study of mental health law over many years and is the author of a leading textbook on the subject. She is also pre-eminent among our judges in her understanding of human rights law. The issue could not have been in better hands so far as the law was concerned.
It is a feature of that case, however—it happens from time to time when one looks at decisions taken by judges—that they were not concerned with the practical implications of their judgment. They may give guidance, but it is not their responsibility to see how that would be done, what it would cost or what has to be done to give effect to it. In a sense, that is their luxury. Their task is to say what the law is. The matter is then passed to the Executive—the Government—to find the money and give effect to what the law requires. That is where we are now.
There are questions, of course, as to what the law as laid down in the judgment requires. The essential point, which the noble Baroness, Lady Finlay, mentioned, is that the situations do not enable one to distinguish between people of sound mind and those of unsound mind. Human rights are the same for everyone. The word “everyone” appears repeatedly throughout the European convention. There is a difference between a mere restriction and a deprivation of liberty. It is a question of fact and degree. Of course it depends on the situation of the person concerned. The situation where a person is detained on the authority of the state in a hospital or a care home really does not give rise to any problem, because it is obvious that that is a deprivation of liberty. In that case, the DoL procedures must be applied.
The difficult cases are those with which the judgment was especially concerned: people of unsound mind in benign situations with foster parents in a home setting, on the one hand, so that they can lead as normal lives as possible, or with live-in carers, on the other, for the same reason. Addressing that issue, the noble and learned Baroness, Lady Hale, said that the concept of physical liberty is the same for them as for anyone else, regardless of their mental or physical disability. The right at issue is a right not to be deprived of that physical liberty—whether that person is free or not free to come and go as he or she pleases. Where a person is by reason of an action taken by the state—I emphasise that we are talking about state interventions, not interventions by parents exercising their ordinary parental responsibilities—the question is whether that situation is one where they can properly be said to be deprived of their liberty. That is so however benign the environment they are in and irrespective of whether they actually want to break loose and leave the situation on their own initiative. As the noble and learned Baroness, Lady Hale, put it in paragraph 56,
“it is the constraints that matter”.
However, the question is still left in the air as to how far this judgment goes. The noble and learned Lord, Lord Brown, addressed that issue in his speech last Tuesday. He said:
“It can fairly be said that the facts of those three cases represent about the furthermost examples of what the English courts …would conclude involves a deprivation of liberty”.—[Official Report, 10/3/15; col. 632.]
When one considers the nature of the places where those concerned were living, the noble and learned Lord must be right about that. Indeed, he also said that the borderline between restriction and deprivation of liberty is quite a narrow one. Those cases lay at the extreme limits.
The facts will vary from case to case, and one has to face the situation that the facts of those two cases must not be taken as definitive. Indeed, when the noble and learned Baroness, Lady Hale, was writing about this she said that we should err on the side of caution in dealing with the situation of people of extreme vulnerability. It is quite striking that she rejected an invitation to lay down an acid test for the deprivation of liberty. What she did instead was to set out certain things that are not relevant. For example, the person’s lack of objection is not relevant. The normality of the situation in which they are placed is not relevant. The reason or purpose behind a particular placement is not relevant. But what we do not find in the judgment is an answer to the kind of questions that, understandably, the noble Baroness is raising as to where exactly the line should be drawn.
The noble and learned Lord, Lord Brown, did venture on this point, too, but I am not sure that I agree entirely with what he said. He made a distinction between long-term placements of unsound mind and situations in which people are placed that are the result of a terminal or emergency situation. I can agree with him about terminal situations and emergency situations, because the timeframe is necessarily short, but I am a little uneasy about the phrase “long-term placements”, which was a point addressed by the noble Baroness. One could have situations that are meant to be temporary but involve the deprivation of liberty. They may be quite short term—a matter of two or three weeks or a month or so. In those cases, it looks as though, if there is a deprivation of liberty, the procedures must be applied. That illustrates the problem pointed to by the noble and learned Baroness, Lady Hale, about trying to draw any kind of precise line to be able to say when a situation is caught and when it is not. Each case must be taken on its own facts.
The question then is what needs to be done. I recognise that there are limits to what the Minister can say in the dying days of this Parliament. He cannot commit very many people to what can be done in the next two or three weeks. But one or two points may be made and he may be in a position to say something about them. The first is in relation to the Government’s reaction to the Select Committee report, which was mentioned by the noble and learned Lord, Lord Brown of Eaton-under-Heywood. The paragraphs that are relevant in that response are paragraphs 7.26, 7.27 and 7.31. I will not read them out because they are available to everyone. But the Government get full marks for accepting that there is a pressing area that needs attention in the matter of community care arrangements of the kind involved in the case of Cheshire West. There is a pressing need here and a new legal framework needs to be designed in order to deal with that problem.
The difficulty I have is that the solution that has been adopted is to ask the Law Commission to undertake a review. It is recognised in paragraph 7.27 that this work will not complete for a few years. That seems to come close to kicking the matter into the long grass. I quite see that one wants some kind of informed approach to this issue but to look at dealing with it in terms of years rather than doing so in the relatively short term seems to be rather unfortunate. Surely something could be done more immediately. The point is raised in a paper on the impact of the judgment circulated by the Local Government Association, which draws attention to the increasing burden on councils which are already concerned about the affordability of the Care Act and calls on the Government to commit fully to funding all the burdens that rest upon them. The association also calls for a change in the law for people lacking capacity who need supervision and need to be in supported living environments. It wants action to be taken in the short term in various respects to enable the matter to be addressed.
The noble and learned Lord, Lord Brown, made the same point at the end of his speech last week and I endorse exactly what he said. Can the Minister explain a little more whether any thought is being given to addressing these problems as a matter of urgency rather than waiting for a matter of years for the Law Commission to report and no doubt further years after that for further legislation to be introduced?
Lord Howard of Lympne (Con)
My Lords, I support the noble Baroness, Lady Finlay, and declare my interest as the chair of Hospice UK.
In view of the limited time available to me, I shall bite my tongue hard and resist the temptation to comment on what the noble and learned Lord, Lord Hope, referred to as the juridical aspect of the problem that faces us and concentrate on what I think will be of most help to my noble friend the Minister when he considers the need for urgent action to deal with the issues to which the decision of the Supreme Court, and the legislation which lay behind it, have given rise. I entirely agree with what the noble and learned Lord, Lord Hope, said in that regard. Therefore, I shall concentrate on specific examples of difficulties which hospices have faced.
The first concerns a hospice that instigated an urgent deprivation of liberty application and applied for a standard authorisation. The urgent deprivation of liberty was put in place for seven days. On the sixth day, the social services DoLS team had made no contact, so the hospice contacted it for advice on how to proceed as the urgent deprivation was due to expire the next day. The team asked the hospice to implement an extension to the urgent deprivation for a further seven days, as they had a backlog of referrals and no best interest assessors available, which the hospice did. Six days later, still nobody had been to assess the patient, so the hospice contacted the DoLS team again and asked what it should do. The team confirmed they had a backlog of applications and would not be able to assess the patient prior to the urgent deprivation of liberty expiring, and explained that there was nothing else the hospice could do as it had done all that it was legally required to do. The hospice raised its concerns that this meant that it would be depriving a patient of their liberty without the appropriate authorisation and confirmed that it would be contacting the Care Quality Commission. The DoLS team agreed that the situation was not acceptable, but confirmed that there was still nothing it could do.
I give another example from another hospice which had a patient transferred from its local hospital who had metastatic cancer and had suffered a stroke. He was not responding or understanding when he was admitted, but did not appear to be in the last days of life. An urgent application and standard application for DoLS were made. An assessor came to see him from the local authority who seemed at a complete loss as to why she was there and what she was supposed to do. The patient died three days later.
A hospice has provided a series of examples of the kind of situations with which it is confronted. The first example is:
“An actively dying hospice in-patient placed on a Palliative Care Plan, who has lost capacity/consciousness, and is receiving sedative medication to manage symptoms of their terminal phase”.
The second example is:
“The delirious hospice in-patient who is receiving medication or support to manage this state”.
The third is:
“The wandering cognitively impaired patient at risk of falls (in an in-patient or day care setting) who has a nurse call system that activates when the patient starts wandering in order to alert nursing staff to return the patient to their area of care”.
These are all very specific examples of the problems that hospices now face on a daily basis as a result of the situation that has arisen.
Reference was made in an earlier debate in your Lordships’ House today to the unintended consequences of legislation. I submit that it is impossible to come across a better or, indeed, worse example of the unintended consequences of legislation than the situation in which we find ourselves. I suspect that it can ultimately be resolved only by fresh legislation; but at least, when one contemplates the prospects for such legislation, it ought to be free of party political difference, so there ought to be not a great deal of difficulty in building a consensus. I am not sure that it is necessary—the noble and learned Lord, Lord Hope, suggested that it is not necessary—to await the Law Commission’s recommendations. Perhaps it can be asked to expedite its work, but the problem is urgent and I urge the Minister to take urgent action to resolve it.
Baroness Hollins (CB)
My Lords, I should like to reflect on how we have reached this point by looking briefly at two cases. First is the 1997 Bournewood case, which is why we have the deprivation of liberty safeguards in the first place.
Henry—we do not know his real name—is a man with severe autism and learning disability. He cannot communicate verbally but can make his needs known to those who know him. As with most people with autism, structure, routine and predictability are very important to him. However, on the day in question, he did not have his usual driver for his day centre visit. The driver went a different route, picked up different people, and Henry became increasingly upset. By the time he reached the day centre, he was frustrated and angry, was harming himself and hitting out at other people. The day centre staff therefore rang for specialist advice and were advised to admit him to hospital immediately, where he was detained for his own safety. When his foster parents visited him, he became upset and wanted to go home with them. However, this increased his harmful behaviour and the doctor asked them not to visit any more, saying that it was in his best interests not to see them. They started a legal campaign and, after five months, Henry went home. They then took the case to court, arguing that he had been illegally detained. Eventually, after seven years and hundreds of thousands of pounds in costs, the European Court of Human Rights ruled that Henry had been illegally deprived of his liberty, in contravention of Article 5 of the European Convention on Human Rights—and so the Mental Capacity Act and DoLS were born.
Currently, if a person without capacity does not meet the criteria to be admitted to hospital under the provisions of the Mental Health Act, an application for a DoLS authorisation may be made. In fact, Henry’s psychiatrist said that she could have detained him under the Mental Health Act and, paradoxically, he would not therefore have been eligible for DoLS.
Let us compare Henry’s story to the case of Stephen Neary. He, too, has autism and a learning disability, although he is able to communicate verbally. He lived at home with his father and had constant adult supervision. However, his father became unwell and exhausted and, in 2009, agreed to Stephen being admitted temporarily for respite. When he went to fetch his son he was prevented from doing so. The professionals argued that they had concerns about Stephen’s weight and behaviour, and he was detained under DoLS. For a year Mr Neary fought a legal battle to get his son home. Neither he nor his son were eligible for legal aid but fortunately Mr Neary was able to do this. There was no automatic tribunal, no means of legal challenge other than through the High Court and ultimately damages were paid because it was found that the council had not acted lawfully in depriving Stephen Neary of his liberty.
The post-legislative scrutiny committee of which I was a member found the Mental Capacity Act unfit for purpose with respect to DoLS. The code of practice has not been updated since it was first published and does not take into account significant changes resulting from case law, including the Supreme Court’s March 2014 judgment. Since the Cheshire West case many more people are being referred and the system is completely clogged up. In one authority 2,000 cases are awaiting standard authorisations—a year on from the judgment and no safeguards in place. The legal framework is complex, expensive and confusing for clinicians, who may fear that they are not up to date with the latest case law. The BMA told the Select Committee that its concern with the DoLS is its complexity and bureaucracy.
Does the Minister agree that simplifying and streamlining the safeguarding arrangements are a matter of urgency? They must, however, be considered alongside the service redesign taking place in the care of people with learning disability and challenging behaviour. The Government are trying to increase the speed of discharges but because of inadequate community support these delayed authorisations are quite literally causing paralysis in the system. I agree with the suggestion from my noble friend Lady Finlay that perhaps further case law is needed to clarify the situation.
Lord Bradley (Lab)
My Lords, I congratulate the noble Baroness, Lady Finlay of Llandaff, on securing this short debate and on her excellent speech on the issues of deprivation of liberty safeguards and healthcare, particularly in respect of hospices and homecare support. I also congratulate the noble and learned Lord, Lord Hope, the noble Baroness, Lady Hollins, and the noble Lord, Lord Howard, on their very wise and detailed contributions, particularly around hospice care. This debate effectively complements the debate last week on the excellent Select Committee report on the Mental Capacity Act 2005, when the noble Baroness, Lady Finlay, rightly stated that the laudable principles of the Act have clearly not been realised as was hoped.
The House of Lords Select Committee made nine recommendations that related to deprivation of liberty and the Government responded to them in June 2014. I will return to one or two of them shortly but I want to concentrate in the limited time available on some of the consequences of the Supreme Court judgment. In March 2014 the UK Supreme Court handed down two judgments, which are commonly known as the Cheshire West judgment. As the noble and learned Lord, Lord Hope, has eloquently explained, these judgments outlined the test that must be used in the determination of whether arrangements made for the care and treatment of an individual lacking capacity to consent amount to a deprivation of liberty. As the British Medical Association commented, in its judgment the court said that:
“The benign purposes of care arrangements are not relevant to the question of whether a person was deprived of liberty … What would be a deprivation of liberty for a non-disabled person is also a deprivation for a disabled person … The key feature is whether the person concerned is under continuous supervision and is not free to leave … The person’s compliance or lack of objection, the purpose of the placement or its relative normality are immaterial”.
As a consequence of this judgment there has been a significant increase in the number of DoLS applications received by local councils, as we have already heard. Government figures show that there were 13,000 DoLS applications in 2013-14. Following the judgment, there have been 86,500 applications so far this year, according to the Association of Directors of Social Services. The number of applications has increased every quarter. Further, as ADASS has stated, as well as significant cost implications, this places great strain on the ability of staff and local councils to meet their statutory duties. Most importantly, it makes it harder to meet the needs and protect the best interests of the most vulnerable people in society in a timely way.
I shall illustrate this further. In my council, Manchester City Council, there has been a fivefold increase in DoLS applications since the Cheshire West judgment. In 2013-14, there were 236 applications; this year to date, there have been 1,147 applications. There is also a backlog of 200 cases which the council is working through, having recruited additional assessment capacity. The cost of a straightforward application is £900 in court costs, and court costs will be significantly higher for disputed applications. Therefore, Manchester is experiencing significant cost pressures in court fees and assessment costs to meet the needs of the most vulnerable people and their families. ADASS has suggested that each case needs 10 hours of assessment time. Manchester agrees with that. For Manchester, it equates to 10 full-time equivalent practitioners to deal with the additional assessment requirements following the Supreme Court judgment. To aggregate this, and against a backdrop of considerable strain on resources in adult social care, it is estimated that the cost to councils is in the region of £98 million over and above the current funding for DoLS activity in 2014-15. Furthermore, the BMA has stated that the authorisation for DoLS is cumbersome, bureaucratic and time-consuming and, crucially, will inevitably divert resources from front-line care.
As a consequence, the Local Government Association and ADASS are calling on the Government to fully fund the cost of the changes to DoLS and to ensure that the healthcare of vulnerable people is not affected. I spoke at a Mencap conference in Cardiff today on learning disabilities and access to justice. It expressed concern that the costs imposed by DoLS might deflect from the direct care of people with such disabilities. Will the Minister explain the Government’s position on the funding arrangements?
I return to the Select Committee report and the Government’s response. The House of Lords Select Committee rightly asserted:
“Better understanding of the purpose behind the safeguards is urgently required”.
Part of the Government’s response was to request the health and social care sector to establish a multiagency task force to determine the impact of the Supreme Court judgment on local authorities and to identify potential solutions, such as pooled training and sharing good practice. This is clearly welcome but, as ADASS pointed out, even with extensive sector-led activity, local authorities cannot hope fully to mitigate the impact of the judgment without additional resources. Further, as we have heard, the BMA is calling for an urgent review of DoLS with a view to simplifying and streamlining the system. I would welcome the Minister’s response to that call.
Another key point is that considerable uncertainty remains in a wide range of circumstances about whether care or treatment will amount to a DoLS. This uncertainty could lead to confusion for health professionals and a defensive and bureaucratic mindset, as the BMA pointed out. This is partly through the failure to deliver effective training in this area, as the noble Baroness, Lady Finlay, pointed out in last week’s debate, and can lead to staff being understandably risk-averse in the assessment process.
Investment in training in all aspects of mental health and learning disability legislation and services is essential, particularly in relation to the Mental Capacity Act and the related DoLS. Many organisations support that view, including Mencap, which clearly recognises the specific training needs of staff working with people with learning disabilities. My views on the crucial importance of training, for what they are worth, have been shaped by my involvement in the national rollout of liaison and diversion services for people with mental health and learning disabilities who come into contact with the criminal justice system. Those multiagency programmes rely on training not only within individual organisations but, more importantly, across organisations to ensure that there is a common understanding of the needs of the individual, breaking down organisational and cultural barriers.
While it is welcome that the Government have recognised some of the issues that have been identified as a result of the Cheshire West judgment, faster action and more resources need to be considered properly to respond to the Select Committee’s nine recommendations on goals and to ensure that the health and social care needs of some of the most vulnerable people are properly met. I hope that the Government therefore respond in a more speedy and timely manner on those issues.
The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)
My Lords, I am very grateful to the noble Baroness, Lady Finlay, for raising this important issue for debate and for her authoritative speech, alongside those of the noble and learned Lord, Lord Hope, and the noble Lord, Lord Bradley. I also very much appreciated the contributions from the noble Baroness, Lady Hollins, and my noble friend Lord Howard of Lympne.
Since the Supreme Court judgment in the case of Cheshire West on 19 March 2014, social care and NHS providers have been working hard to understand the implications for their service users and to plan a response that prioritises the well-being of all the individuals for whom they care. I pay tribute to their efforts and the efforts of the local authority teams responsible for assessing and authorising any deprivation of liberty.
The phrase “deprivation of liberty” arouses a lot of emotion, some of it unhelpful. It can feel intimidating, perhaps even stigmatising. The phrase derives from the European Convention on Human Rights, which stipulates that, when an individual is subject to a deprivation of liberty, they must be provided with legal safeguards and a legal route of appeal. In England, for those who lack capacity in hospitals and care homes, this is provided by the system known as the deprivation of liberty safeguards, or DoLS. Despite the negative connotations of the phrase, a deprivation of liberty can be entirely appropriate, if it is in the best interests of the individual concerned and an appropriate and proportionate approach to providing necessary care and treatment. An example would be a dementia sufferer who requires 24-hour care and who would be prevented from leaving a care home because he does not know where he is going, does not know how to safely cross a busy road and who has a history of endangering himself when he does leave. This could be an entirely appropriate deprivation of liberty.
The noble Baroness referred to the Supreme Court judgment, as did noble Lords. The judgment clarified the test for a deprivation of liberty. There are three parts: first, that the individual lacks capacity to consent to the arrangements for their care; secondly, that they are under continuous control and supervision; and, thirdly, that they are not free to leave. Many have welcomed the Supreme Court judgment for emphasising the universal nature of human rights. As for the scope of the judgment, about which the noble Baroness asked me, I hope that she will excuse me for not attempting to interpret case law here and now. However, she may be interested to know that, by the end of this month, the Law Society, commissioned by the department, will publish extensive guidance on the matter.
How we regard those who lack capacity is a cultural challenge. A Select Committee of this House recognised that the health and care system, and society at large, have a way to go to implement the Mental Capacity Act, of which DoLS are part. It noted the tendency of the health system to act in a paternalistic fashion—that of “doctor knows best”. Of course, all health and care professionals want what is best for the service user, but this does not mean that health and care settings can be exempted from the legal safeguards that all of us are entitled to and which ensure that our human rights are protected.
Let us be clear on another point as well: DoLS do not cause a deprivation of liberty. The deprivation of liberty results from the nature of the care and treatment package. As I indicated, the restrictions on freedom of movement and choice that constitute a “deprivation of liberty” may be entirely justifiable and necessary. DoLS exist to ensure that this is the case—in other words, to assess the individual’s situation and ensure that the deprivation of liberty really is necessary—and, if not, to instigate the steps to ensure the person is provided with more freedom. Therefore, DoLS, despite the sometimes negative attention, are positive things that promote the equal human rights of the individual.
The key question, then, is this: are the current deprivation of liberty safeguards the best they can be? Do they allow the individual’s human rights to be protected, but, at the same time, can they be implemented at a population level so that all individuals have their rights protected? As has been mentioned, following the Supreme Court judgment there has been a great surge in DoLS applications: 90,000 in the nine months following the judgment. This represents a tenfold increase. Many local authorities are struggling to process these; there is a significant backlog of applications. It seems clear to the Government that the current DoLS system was designed when deprivation of liberty was seen to be a fairly rare occurrence. The law—perhaps even society—has now moved on.
The Government believe that the DoLS system may not be the best way to provide safeguards at a population level. That is why we have secured the services of the Law Commission to fundamentally review the legislation and propose a new system that covers care homes, hospitals and community settings. This summer, the Law Commission will produce a detailed public consultation paper on future options.
Meanwhile, the Government have been taking steps to assist providers. We have instigated more frequent data collection to monitor better the impact of the Supreme Court judgment. We have issued guidance notes to reassure and to inform. We have significantly cut the number of standard forms associated with making a DoLS application from 32 to 13. We have commissioned extensive guidance as to what now constitutes a deprivation of liberty, which will be published within the next two weeks.
The noble and learned Lord, Lord Hope, and the noble Lord, Lord Bradley, referred at some length to the backlog of applications. We are aware of this. ADASS has produced some helpful guidance that assists local authorities to prioritise the applications for those most at risk. The reduction in the number of forms will also reduce the administrative burden, allowing applications to be processed more quickly. However, the backlog is concerning as it indicates that some people may not be benefiting from the safeguards. We are working more closely with local government and are closely monitoring the situation.
There is a positive element here: because of a clarification by the Supreme Court, tens of thousands of vulnerable individuals are having their care scrutinised. There is work to be done in responding to the judgment, but as I have said, we will work closely with local authorities to get the safeguards provided to as many as possible. I can tell the noble Lord, Lord Bradley, and the noble Baroness, Lady Finlay, that the Department of Health has provided local authorities with £35 million in 2014-15 for their MCA/DoLS responsibilities.
The Government, together with the Care Quality Commission and the Association of Directors of Adult Social Services, have stressed over the last year the importance of a proportionate response to the Supreme Court judgment that puts the individual’s best interests first. DoLS will become a paperwork exercise only if it is applied as a blanket measure—for example, assessing all individuals in a ward together and not considering each patient’s individual circumstances. If providers can demonstrate that they have an understanding of the Supreme Court judgment, that they have policies and procedures in place to ensure that restrictive care practices are minimised, and that they are doing their very best to make DoLS applications where appropriate, then we do not expect that they will be unfairly penalised.
The noble Baroness, Lady Finlay, asks whether decisions are properly scrutinised and whether advocates or relatives are asked to feed in to those decisions. Government officials are in regular contact with those working on the front line. So far, it seems that assessors are keeping to the ethos of the Mental Capacity Act—namely, they are not treating this simply as paperwork. The DoLS forms were subject to consultation with a range of practitioners. We are still taking on board comments on the forms and we welcome suggestions for improvement.
The noble Baroness, together with the noble Baroness, Lady Hollins, referred to the difficulty posed by delayed discharges. The Government have recently done a lot of work to speed up appropriate discharges from hospital settings. It is hard to be conclusive about the impact of DoLS here, but it is reasonable to assert that in some cases a DoLS application could help discharges, identifying, as it may, a least restrictive option outside of hospital.
The noble Baroness, Lady Finlay, asked about consent—whether it had to be in writing and the timeliness of the consent. It is important that any wishes that the person made known when they had capacity are considered when decisions are made at a later date when they may lack capacity. This would apply, however those wishes were expressed. However, having something in writing means that the wishes are clear and not second or third hand, and therefore that form of consent may hold more weight. In terms of timeliness, any medical professional should always give consideration to whether a statement of wishes or an advance decision reflects the person’s current wishes or feelings. As these may have changed over time and/or in the light of a change of circumstances, it is important that family members and carers are consulted on the current validity of such decisions.
The noble and learned Lord, Lord Hope, referred to long-term placements as compared to restrictions imposed on a temporary basis. It is an important principle that any deprivation of liberty authorisation must be for the shortest time needed to achieve the desired outcome. Currently, we have essentially a one-size-fits-all model for DoLS. However, the Law Commission will be considering whether a more flexible model might be better.
The noble and learned Lord, Lord Hope, and my noble friend Lord Howard questioned whether there might be changes to the law that we could make more quickly to help alleviate the pressure on the system pending the Law Commission report. I know that some partners have called for rapid legal changes. One example is increasing the time for which hospitals can authorise a deprivation of liberty—that is, instead of the current seven days, perhaps 14 or 21 days. Another suggestion that I have heard is to change the requirement for local authorities to process applications within 21 days by extending that period. Although I sympathise with local authorities and hospitals because of the pressures they are under, the counterargument that I know many others make is that, with something as important as fundamental human rights, government should not weaken the safeguards. My own belief is that the changes proposed should be considered in the round with the wider changes that the Law Commission is currently considering so that we do not inadvertently cause negative or unhelpful side-effects.
The noble Baroness, Lady Finlay, questioned whether there should be a test case—and, if so, who should do it and where the funding should come from. In terms of a test case to take to the Supreme Court, the Government are not yet minded to force this issue. The majority of partners that officials have spoken to support the Cheshire West judgment. We understand that the implications are many and that they vary by settings. As such, the Government have provided, where possible, guidance on specific settings, such as those that the noble Baroness, Lady Finlay, referred to relating to hospices. That guidance has, I think, been very well received.
I understand the noble Baroness’s concern about the implications of the judgment for different settings, particularly those where the fewest number of DoLS applications have traditionally come from. She has, as we all acknowledge, considerable expertise in this area and I would be grateful and pleased to facilitate a meeting with the officials leading this work if she would find that useful—and, indeed, with the Law Commission team looking at future legislation. It is vital to have the support of medical professionals for any future system to replace the current DoLS system.
I have not addressed all the points made by noble Lords this evening. If I am able to add to the comments that I have made, I would be happy to do so in writing. Suffice it to say, for now, that the Supreme Court judgment has challenged us to think about how we regard the most vulnerable members of society. The ultimate test is for those of us fortunate to have full capacity to put ourselves in the place of those who do not. If we were prevented from leaving a hospital ward—if we could exercise no choice over our day-to-day activities, over whom we met and when we met them—I wonder how we would feel. I suspect that we would expect at the very least to have a legal route of redress. Those who lack capacity deserve and are entitled to exactly the same. The challenge now is to deliver these rights in a busy and pressurised health and care system upon which demand continues to rise.