Health: Deprivation of Liberty Safeguards

Baroness Hollins Excerpts

Monday 16th March 2015 Lords Chamber

[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.