Deprivation of liberty and care providers – how thick is your legal ice?

In a recent report, entitled A Hidden Crisis, Age UK has highlighted the extent of the problems with DoLS, setting out the results of qualitative research carried out with care home staff, representatives of local authority DoLS teams, and families of those affected by DoLS.   Age UK sets out clearly the (depressingly familiar) problems, and notes that:

The problems with DoLS are arguably part of a wider story of policy neglect and underfunding impacting social care. The current social care staffing crisis means that care homes often do not have sufficient staffing levels to deliver care in a way that properly reflects the human rights principles set out by the DoLS and the Mental Capacity Act. Care home managers do not always have the resources to provide person-centred care and this means that care practices can be more restrictive than they ought to be, and that the minimal restrictions specified in DoLS authorisations are not always adhered to or reviewed. For example, people may be locked up for long periods in their room in a care home, or not supported to go outside or to leave the setting at all due to a lack of staff to accompany them. There are also concerns that in some instances restless residents are simply sedated to keep them quiet. 

Age UK further identify that its research found “a marked lack of concern from some professionals and others caught up in the system about the absence of proper DoLS processes being followed on the basis that what really mattered was that the individuals in question were safe.”  Age UK notes that:

This is understandable, given our beleaguered system of social care and health services, but the Charity believes it is important to challenge this narrative, as infringing liberty can be a ‘slippery slope’ and freedom is such a fundamental right in our society.

I do not for one minute disagree, but it is important to highlight that those delivering care are on the horns of a true dilemma.  The CQC has already noted this in its most recent State of Care report that:

Meanwhile, people who are waiting to be assessed may be restricted without the appropriate authorisation in place. This could mean that people are being deprived of their liberty for longer than they should have been, or where less restrictive options could have been identified if they had been assessed. When assessments are delayed, staff face the challenge of keeping people safe while protecting their rights. This is particularly difficult if an urgent DoLS authorisation expires before the person has been assessed for a standard authorisation. Providers are not always clear on how to navigate the difficult legal situation of caring for people who are waiting for an assessment. This situation also affects people’s ability to challenge the deprivation of liberty, as public funding for legal support depends on an authorisation being in place.

 (emphasis added)

As the Age UK report notes:

Once an urgent authorisation has expired, any deprivation of liberty without a standard authorisation is unlawful. In these circumstances, care home staff are faced with a difficult choice. If they place restrictions on someone who may need them, they are at risk unlawfully depriving the person of their liberty, but if they follow the law and do not deprive someone of their liberty while they wait for a DoLS authorisation to be approved, they then face the challenge of keeping someone who may be at high risk of harm safe.

A case study then follows, of ‘Helen’s Grandad,’ which I reproduce in full below:

“I was saying ‘let’s do it [the DoLS application] today”. But it took ages. It took six weeks and he was running around all over the place. They said there was backlog and there were more urgent ones they had to deal with. I was pleading with staff … saying “stop him”, they were saying “Helen*, we can’t – we’re not allowed to”. It was frustrating.”

Helen’s Grandad, Peter, has had Alzheimer’s for a long time and has been living in care for two years. He was regularly leaving the care home and being found roaming the streets as he thought he was going to work. As the care home was close to a dual carriageway, Helen and her family felt a constant sense of dread that something serious would happen. Each time he left the care home, Helen had to come into the care home to speak to the staff.

As her Grandad’s power of attorney, Helen was approached by the care home about implementing a DoLS. It was framed as a way which would enable staff to prevent him from leaving the home, and she was relieved that there might be a solution. They contacted the local authority and a BIA was assigned who organised a multi-agency meeting with the care home, Peter’s GP, the family and the local authority. This was followed by a BIA assessment.

Following these assessments and meetings, Helen and her family heard almost nothing from the local authority about the application for over 6 weeks. They were informed there was a backlog, but in this time – as there was no emergency DoLS in place – her Grandad was regularly leaving the home on his own and the care home staff could do nothing to force him to remain. Helen describes feeling totally helpless during this period and frustrated because she couldn’t understand what was taking so long.

When Peter’s DoLS eventually came through it was a relief.

(emphases added)

The case study is interesting in that, rather contrary to the picture painted in the extract from the report set out above, this shows a care provider intensely concerned about the right to liberty.  The underlined passages are also concerning because they suggest the care provider may not have been assisted to think through the balancing act required as between life and liberty.  Whether it is framed by reference to the European Convention on Human Rights or at common law,[1] I can confidently state that, in the context of those reasonably believed to lack capacity to take the relevant decisions, the courts will almost invariably prioritise life over liberty, at least when it comes to determining the consequences for the care provider which has deprived the person of their liberty unlawfully because their attempts to get the position authorised have not yet succeeded (see this presentation here).

If CQC could be tempted to come off the fence to help care providers work out what they are meant to do, it might be said that assessing the thickness of the legal ice for the care provider might be tested by reference to the extent to which they can say they reasonably believe that preventing the person leaving is necessary in order to:

(a) give life-sustaining treatment, or

(b) to carry out any act which the person doing it reasonably believes to be necessary to prevent a serious deterioration in the person’s condition.[2]

If the provider (a) reasonably believes that either of these apply; and (b) they have done all that they can to help the relevant body authorise the situation, it seems to me that there is a strong case that they are the right side of a line we should not be having to draw.

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[1] If ‘Peter’ is a self-funder, or his care is funded by NHS Continuing Health Care, complicated questions might arise about the application of the Human Rights Act to the care provider (as flagged here in this report from the Joint Committee on Human Rights on Human Rights in Care Settings).

[2] The nerds will have spotted that this comes from s.4B MCA 2005, which I need to emphasise only applies to give legal authority to deprive someone of their liberty where an application has been made to the Court of Protection to determine a question about whether D is authorised to deprive P of his liberty under s.4A.  However, this does provide a useful framework to tease out the level of risk to the person.  In legal terms, this would, in turn, then provide a basis upon which it could be argued that any unlawful deprivation of liberty to which the person was subject pending authorisation caused them no harm, and hence, in turn, only grounds the right to a declaration and nominal damages (i.e. £1).