Health: Deprivation of Liberty Safeguards

Baroness Finlay of Llandaff Excerpts

Monday 16th March 2015 Lords Chamber

Asked by

[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?