Health: Deprivation of Liberty Safeguards
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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.