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16 Jan 2012

By Sheree Green, senior associate solicitor, and Kate Jackson, Anthony Collins Solicitors

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When does being “looked after” turn into a case of being “locked up?” When the theory of the Deprivation of Liberty Safeguards (DOLS) stands in stark contrast to some of the reality on the ground.

Here’s the theory: the safeguards are designed to support people who are deemed not to have mental capacity to make their own decisions and who are detained to protect them from serious harm. They are detained for their own safety and well-being, receiving care or treatment in a hospital or care home.

And the reality? An elderly woman with dementia moves into a care home against her and her husband’s wishes. A young adult with severe learning disabilities and challenging behaviour, lives in a hospital unit where the doors are locked and his movements, day to day routine and contact with family is effectively controlled by those caring for him. The safeguards should protect people like this, but this is not always the case.

Take the high-profile case of Stephen Neary which last year underlined the potential unlawfulness of the deprivation of liberty regime and the inadequate nature of the safeguards. Hillingdon council in London illegally detained the autistic young man in a care unit rather than allowing him to stay at home where he and his father wanted him to live. His father, Mark, fought a long campaign to have his son returned, eventually finding a solicitor from Truro to challenge the council in the Court of Protection in London. It took some twelve months for Mark Neary to secure a court order authorising Stephen’s return home.

The case exposed the flaws in the current system and was well-documented in news and social media.

In November last year, a study by Roger Hargreaves of the Mental Health Alliance (MHA), concluded that the DOLS scheme “in its present form is not fit for purpose”. As the media reported at the time of MHA’s publication, the fundamental purpose of DOLS - speedy access to an appeal against detention - was undermined by the lack of consistency across public authorities, a lack of expertise in the legal profession and the inefficiency of the courts.

Here’s the theory again; DOLS were introduced in 2009, by amendment to the Mental Capacity Act 20055, as a protective measure for those individuals who were otherwise finding themselves cared for in a regime that effectively deprived them of their liberty.

The intention was to provide such individuals with the right to challenge their “detention” by the state. DOLS provide a mechanism for individuals to challenge their deprivation of liberty, initially by means of a local review, but ultimately via an application to the Court of Protection(further information on the practical and operational detail of the scheme, including case study based examples, and links to other useful DOLS-related resources can be found by searching the Social Care Institute for Excellence website).

So why the problems? Lawyers, health and social care providers, the general public and even Court of Protection judges have increasingly disparate views of what constitutes a “deprivation of liberty”. Mr Justice Charles, the High Court judge at the head of the Court of Protection, has said in relation to Stephen Neary’s case: “It's complicated. What is deprivation of liberty? [If] you ask three people, you probably get four answers.”

Another problem is that the lengthy and complex process of challenging a DOL in the courts, stands in stark contrast to the process for appeals against detention for assessment or treatment by those detained or “sectioned” under the Mental Health Act 1983, where the appeal is set in motion by the completion of a simple form, strict timescales must be adhered to for the preparation of reports and the scheduling of the tribunal hearing, the hearing itself, takes place at the hospital where the patient is detained. The patient is also supported and encouraged to take an active role in the proceedings, with free legal representation.

Challenges should be heard before a High Court judge, such is the complexity and potential impact upon the individual of the ultimate decision, but there far fewer High Court Judges than other levels of the judiciary. In addition, public law and mental health lawyers are generally the most appropriate representatives to advise and represent individuals on DOLS challenges, but they are not always to be found in high street practices, especially in a climate of public funding (legal aid) cuts and other economic pressures.

Add to this a lack of understanding of deprivation of liberty issues and safeguards amongst the public bodies responsible for authorising the scheme (data on how many councils have applied for deprivation of liberty can be found on The Health and Social Care Information Centre Website and Health Service Journal Website), and the cost to the local authority of bringing a case to court (which can run to tens of thousands of pounds), and the situation for many individuals in hospitals and care homes is looking increasingly dire. Mr Justice Charles has also concluded that, in the light of precedents being set by recent law, the DOLS scheme may be used even less in future.

So what is the answer?

Various options have been suggested including scrapping the scheme and starting again, and a thorough review by the government of how the scheme is working. One practical solution, alluded to around the time of the MHA report, might be to institute a tribunal-style route of appeal, similar to that available to individuals detained under the Mental Health Act 1983. This could provide a more cost efficient, and timely review of the detention.

Expert and sensitive legal representation is vital in navigating this increasingly complex issue. Our practice, Anthony Collins Solicitors, for example, has a Court of Protection team with lawyers who specialise in deprivation of liberty issues.

It’s important to note that the DOLS regime has undoubtedly brought real benefits for some individuals. Prior to its implementation, people lacking the relevant capacity, but without a mental disorder that might render them liable to be detained under the Mental Health Act 1983, could be left languishing in an institution for many years, without any means of challenging their incarceration.

The increasing publicity around this subject is also shining a light on practices in care homes and hospitals, exposing failings, and focusing on the human rights of service users, and so improving the protection offered to them.

Ultimately, however, unless the courts, the professionals, the policy makers and the politicians reach consensus on what constitutes a deprivation of liberty, inconsistencies will remain, and vulnerable people risk being left without appropriate safeguards to ensure their care and living arrangements are truly in their best interests.

Stephen Neary returned to live at home with his father in December 2010. Little more than a year on, the fundamental and frequently-asked question of “what is deprivation of liberty”, as the High Court’s Mr Justice Charles reminded us, remains unanswered.

• All efforts have been made to ensure the accuracy of this information. Please note that this advice is intended to be general advice only and was correct at the time of publication. No responsibility can be accepted for action taken or refrained from solely by reference to the contents of this briefing. Remember, each case is different, and accurate advice must be tailored to the individual case.
• Anthony Collins Solicitors is a national firm specialising in health and social care with an emphasis on the not-for-profit sector. The firm works in areas of activity engaged in by VODG members as well as the complex legal services required by members’ service users.