Court of Protection: Deprivation of Liberty Safeguarding

Driving to work this morning, there was a discussion on the Radio 4 Today  programme about the Court of Protection (for anyone who wants to listen to the piece again, it was at 0730 on The piece centred on Deprivation of Liberty Safeguarding (DoLS). Regular readers of this blog and our Twitter account @CWCoP will know that this is an area where we have a special interest with our Jess Flanagan taking the lead in this important field. The issues discussed on the programme surrounded the case of AJ (Deprivation of Liberty Safeguards) [2015] EWCOP 5.  AJ was declared to have been deprived of her liberty – but owing to delays in the system, by the time that the Court had made its order, her health had deteriorated to a point where she was unable to return home – despite that being her dearly held wish.

Our friends at 39 Essex Chambers  discussed this case in their March newsletter and Victoria Butler-Cole was on Radio 4 this morning discussing the Mental Capacity Act, health and welfare and DoLS. This is an emotive area and one that is in the press a great deal at the moment. Sir James Munby the president of the Family Division is on record stating that ‘systemic failures’ in Court of Protection procedures are creating delays and that an overhaul is needed. There is a lot going on in the Court and we are working hard as a team to keep up to date with the changes and the procedures.

We are also firm advocates of preparing for incapacity. On this morning’s programme Victoria Butler-Cole highlighted that people can prepare Health & Welfare Powers of Attorney which would assist tremendously in these cases.

Here at Clarke Willmott, we have experience in all aspects of the Mental Capacity Act – from assisting people with DoLS, representation in Court and of course – planning ahead – whether for health & welfare or property & finance.

For further advice about mental capacity or elderly care issues, please contact Heledd Wyn or a member of our Court of Protection team.


Clarke Willmott Court of Protection team: supporting law making in Japan

On 22 April 2015 Clarke Willmott LLP will host a meeting between a delegation of lawyers from the Japan Legal Support Centre and organisations from Bristol who provide services in connection with the Mental Capacity Act 2005.

Vulnerable adults in Japan currently have little protection in respect of making welfare decisions, but the Japanese government is in the process of amending its legislation. The delegates will be gathering information about the operation of the Mental Capacity Act in England and Wales and their findings will be used in the formulation of the new Japanese legislation.

The meeting on Wednesday will involve representatives from Bristol Mind, staff from the National Carers Network and lawyers from Clarke Willmott LLP and Foot Anstey.

The visit has been arranged between the delegation leader, Toshihiko Mizushima who is an Attorney at Law in Japan, and Tom Hore who is Director at Bristol Mind. Bristol Mind is one of the leading mental health organisations in Bristol supporting over 2,500 people every year. Bristol Mind was recommended to Mr Mizushima as an example of excellent practice and because they run the Independent Mental Capacity Advocate (IMCA) service in Bristol.

Mr Mizushima first visited Bristol Mind in January and commented “I realised that IMCAs in Bristol Mind have excellent communication skill and great passion”. His impressions and Bristol Mind’s ability to connect him with other organisations led him to decide to bring the national delegation to Bristol.

Tom Hore said “We feel very proud to have been chosen to meet with the delegation and to contribute towards the creation of the legal framework of another country; it’s a great testament to the expertise of our staff and our organisation”.

The Mental Capacity Act 2005 was created with the aim of empowering and protecting people who may not be able to make some decisions for themselves, particularly about their health or accommodation. IMCAs support people who are unable to make these decisions and have no friends or family to support them. The IMCA service is funded by Bristol City Council and in 2014 IMCAs from Bristol Mind worked with 460 people in the Bristol area.

As well as hosting the event, Clarke Willmott will be answering questions about how we advise our clients and the legal framework of the Mental Capacity Act 2005. It is a privilege for our Court of Protection team to be involved in the discussions with the Japanese delegation and provide information to assist vulnerable people in Japan.

The Care Act 2014: the adult safeguarding system is about to change

The Care Act 2014 comes into force tomorrow. Over the next few weeks we will be posting some of our thoughts about the provisions of the Act and our experience of working with people who will benefit from the legislation, particularly in respect of safeguarding vulnerable adults.

First, we consider what was wrong with the current system and how the Care Act 2014 (the Care Act) will change things.

One of the main issues with the current system is that it is guidance only and difficult to ensure that an authority does what you think it should. Furthermore, that guidance, ‘No Secrets’, was published in 2000 and has not particularly caught up with the way the Adult Social Care system has evolved over the past 15 years. Currently, each Authority is able to make it’s own policy in respect of safeguarding, and most authorities now have comprehensive policies which ensure that agencies such as health, social, police and education (if appropriate) all work together in a particular geographical area.

Although the current system creates responsibility for the provision of services, it can be very complicated and focuses on the people and organisations who provide the services, rather than the individual who needs to receive the care. The vulnerable adult, whether or not they have capacity to make decisions about any alleged abuse, may be excluded without good reason from the process that will make safeguarding decisions about them. An individual’s capacity to make decisions about the abuse is too often not considered and if they do have capacity to make decisions to consent to the abuse and/or put up with it this is rarely considered as an important factor in the process.

Under the Care Act, there is first and foremost a principle of ‘well-being’ of the individual and the focus is changed so that the person is always at the centre of the decision making process. Local authorities now have a duty to meet the specific needs of the individual, rather than just providing services.

The Care Act brings safeguarding into a statutory framework and away from guidance and policy, but importantly, the new system is predicated on the individual with needs requiring care or support. It doesn’t matter if they are ‘eligible’ needs, ie they can be low or moderate needs as well as Substantial or Critical, which will result in service provision to meet those needs. This doesn’t really change much from the current system, as any alert would be considered – but only those with eligible needs, or those who lacked capacity would benefit from action that the Local Authorities could take on their behalf.

I cannot see how this will be that different with the Care Act, because the Act still permits Local Authorities to meet assessed and eligible needs; and the guidance is that those are needs which are substantial, or critical.

What might make some difference is the action that the newly constructed Safeguarding Adults Boards (SAB) can take when faced with a situation that requires review and these may assist in driving forward standards and the quality of working together to safeguard adults. However, other than this, the Act is pretty silent on safeguarding. It hasn’t created new powers but the Act itself (being clearer and more person centred) might assist professionals to use the legal framework available to protect people from harm, and empower those who need it.

For example, individuals who might not understand, or be able to weigh up, retain or communicate any decision relating to care planning, now effectively have a statutory right to have access to an advocate to support them through the process. There is already a statutory right to an Independent Mental Capacity Advocate in safeguarding cases where the person lacks capacity, but this doesn’t help those who are said to have family members who can adequately speak for them; or for those who don’t lack capacity, but still struggle to engage with or understand the process.

For me, this is likely to be one of the key changes that the Care Act will bring about that might actually support the individual at the heart of it all more effectively than any legal measure that could be put in place.

For more information please contact Jess Flanagan or a member of our Court of Protection team.

Dementia and mental capacity: an international dilemma

One day last week I attended two separate events concerning capacity and how this is a growing problem – one with cross-border implications.

The STEP Mental Capacity Special Interest Group (SIG) is comprised of practitioners from around the globe who have an interest in capacity issues. We discussed problems facing our colleagues in such diverse jurisdictions as Australia and the Cayman Islands where the approach to incapacity is very different. The aim of the group is to raise awareness of international issues surrounding those with incapacity and with a view to achieving best practice.

In England and Wales we have a very clear guide in the form of the Mental Capacity Act 2005 (MCA) and those of you who read this blog will be aware of the increasing number of cases that are being reported by the Court of Protection.

These cases are as diverse as where people should live Essex County Council v RF & Ors (Deprivation of Liberty and damage) [2015] EWCOP 1 and MASM v MMAM & Ors [2015] EWCOP 3 (29 January 2015), whether they should be sterilised against their wishes The Mental Health Trust and others v DD and another [2015] EWCOP 4 and what authority people have to make gifts as attorneys or deputies Re Gladys Meek [2014] EWCOP 1, [2014].

These are monumental decisions, but particularly so when it is considered that these cases have only been brought to Court because an individual lacks the capacity to make the decision themselves. I anticipate that we will be seeing more of these types of cases in the coming years as people’s awareness of mental capacity grows and there is greater understanding of how the MCA impacts upon the lives of the individual.

As a solicitor, I am aware of these issues and how the law has an impact on our lives as I have access to the cases and I work with some highly qualified and experienced practitioners in this field – but I’m not sure how the cases are followed or understood in the wider world.

On the same day I attended a presentation at the RSA about the Dementia Timebomb. Professor June Andrews, director of Dementia Services at Stirling University (in Scotland, which is a different legal jurisdiction to England and Wales), spoke to a diverse audience of medical professionals, legal professionals, charities and interested parties about the economic and social impact of dementia. Professor Andrews said that even as a professional in the area, she finds the information baffling and difficult to sift though. So how do those lacking capacity cope? In her book ‘Dementia: The One-Stop Guide’ Professor Andrews gives some advice and sets out the resources available for families, professionals and those living with Dementia.

The audience were highly engaged – tweeting the event live using the hashtag #RSADementia and asking questions. I had an opportunity to raise the question of engagement and was pleased to hear about the Dementia Festival of Ideas “a year-long celebration of the most stimulating thinking, writing and discussion about what dementia means in 2015”.

Hopefully, these events will help to engage the public about issues surrounding capacity and assist with the confusion that can result when families are affected by incapacity.

I am mindful that incapacity has an international reach and does not limit itself to legal jurisdictions where the Mental Capacity Act 2005 is in force. Are the issues the same in Europe and Asia? In a world where we are ever more international in our approach, our lives, much like dementia, do not sit within neat geographical boundaries so I wonder whether we will, in the future, face an international Dementia Timebomb with global impact.

For further information please contact Heledd Wyn or a member of the Court of Protection team.

Court of Protection: an exceptional interference with individual rights in order to protect life

A recent Court Of Protection case (The Mental Health Trust and others v DD and another [2015] EWCOP 4) illustrates how the Court will apply the relevant provisions of the Mental Capacity Act 2005 (MCA) and of the European Convention on Human Rights (ECHR) in determining whether a person has capacity, and in deciding what action should be taken in a person’s best interests if he or she is found not to have the capacity to make a decision about a particular course of action.

The case in question concerned a 36 year old woman, DD, who had been diagnosed with Autistic Spectrum Disorder and mild to borderline learning difficulties. DD had given birth to six children all of whom had been placed with permanent substitute carers and with whom she had no ongoing contact. DD was in a long-term relationship with BC and any future pregnancy for DD was regarded as being “highly likely to lead to her death” due to medical reasons, DD’s habit of concealing her pregnancies and her and BC’s resistance to medical and professional support.

The issues

Cobb J was asked to determine DD’s capacity to litigate, her capacity to make decisions about long-term contraception or sterilisation and, if she was found not to have capacity, to decide whether it was in DD’s best interests to receive long-term contraception or sterilisation. It was noted by Cobb J that the relief applied for represented exceptional interference with DD’s rights under Article 8 of the ECHR to respect for her private life.

It was considered by those caring for DD that the best options were either long-term contraception, in particular an Inter-Uterine Device (IUD), or sterilisation. DD had been willing to use contraception in the past but had always rejected an IUD. Cobb J emphasised that the decision made by him would be decision-specific and, in accordance with section 1 MCA, would be in DD’s best interests.

The court’s decision

Under section 2 MCA, a person is deemed to lack capacity if he is unable to make a decision because of “an impairment of, or a disturbance in the functioning of the mind or brain”. After considering the available medical evidence, and in particular the medical opinion that DD’s autism caused her to have an “extremely rigid style of thinking with difficulty in cognitive flexibility,” Cobb J decided that DD’s autism amounted to such an impairment or disturbance.

Section 3 MCA provides that a person is unable to make a decision for the purposes of section 2 if he or she is unable to understand the information presented in respect of that decision, to retain it or to use or weigh that information as part of the decision- making process. As DD was felt unable to use or weigh legal advice to make decisions with regard to litigation it was decided that she had no capacity to litigate.

Cobb J also found that, although DD had a basic understanding of the purpose of contraception and the reproductive process, she did not understand the medical importance for her of not having a further pregnancy. Moreover, it was decided that DD was unable to use or weigh information with regard to contraception or to hold the negative and positive factors of each potential form of contraception in mind. Cobb J found that, pursuant to section 1 MCA, all practicable steps to help DD make a decision ,and to engage in the decision making process, had been taken but without success. On the basis of the evidence before him Cobb J therefore decided that DD did not have capacity to make decisions about contraception and sterilisation.

DD’s best interests

Having decided that DD lacked the requisite capacity, the court then had to make a decision on DD’s behalf about her long-term contraception which decision, in accordance with section 1(5) MCA must be in her best interests.

The court acknowledged that DD’s best interests and her human rights, particularly her right to a private life under the Article 8 of the ECHR were “inextricably bound up.” Cobb J stated that he could only interfere with those rights “if…..satisfied that [it was] necessary and in accordance with the law for the protection of DD’s health.” The health implications were clear from the fact that the clinical risk of a fatal outcome to a further pregnancy was assessed as being at least 30% or as high as 50%. After a review of the available options, Cobb J stated that he felt, in accordance with section 1(6) of the MCA, that sterilisation was the least restrictive of those options as it freed DD from continual intrusive medical intervention.

On the balance sheet approach, the court found that the factors in favour of sterilisation outweighed those in favour of an IUD considerably. There were two factors of “magnetic” importance which were that future pregnancies posed a high risk to DD’s life, and sterilisation would allow her to be left alone, as she fervently wished, free from future medical intrusion.

Consequently, the court authorised sterilisation with one predominant purpose “to preserve DD’s life”. It also made orders that DD should be forcibly removed from her home, and restrained, if this were necessary to carry out the procedure.


This decision is bound to attract attention because of the serious nature of the decision made on DD’s behalf, to remove permanently the fertility of a woman of child-bearing age.  Cobb J was scrupulous in his application of the relevant provisions of the MCA and the ECHR and clearly acknowledged the import of the decision that was being made on DD’s behalf. He acknowledged the fact that strenuous efforts had been made by the professionals involved to engage DD in the decision-making process, sadly without success.

The basis of the court’s decision was clearly to preserve DD’s life and it was emphasised that there was no social purpose behind the decision. By comparison, if a court application had been made in respect of DD’s partner, who had significant learning disabilities, then it is highly unlikely that a similar decision would have been made as, with no risk to his life, such a decision could not be seen to be in his best interests.

For further information please contact Joanna Burton or a member of our Court of Protection team.

Deprivation of liberty at home: Case summary Rochdale MBC v KW [2014] EWCOP 45

On 18 November 2014, Mr Justice Mostyn handed down a rather controversial decision in the case of Rochdale MBC v KW [2014] EWCOP 45. We refer to this decision and his subsequent comments in the Winter 2015 edition of our Newsletter.

In that case Mr Justice Mostyn requested that the Supreme Court in Cheshire West reconsider the application of Article 5 ECHR in the context of deprivation of liberty at home.  The case concerned Katherine, a 52 year old woman who lacked capacity to consent to her care arrangements. She was cared for in her own home with a package of 24/7 care funded jointly by Rochdale MBC and the local CCG (the state).

Mr Justice Mostyn disagreed with the majority in Cheshire West and in this case held the view that a person who is severely physically disabled and house-bound as a result of that disability, could not be considered to be deprived of their liberty. The decision revolved around the theoretical debate as to the meaning of ‘liberty’ and the matter was referred to the Court of Appeal (despite Mostyn J’s desire for it to leap frog directly to the Supreme Court).

Whilst awaiting the appeal decision, Mr Justice Mostyn’s decision added yet another layer of confusion for those trying to provide guidance to clinical and social work staff as to how properly to discharge their functions or those trying to make care arrangements for P in their own homes. The matter was due to go before the Court of Appeal today, but as we heard yesterday from Alex Ruck Keene on his brilliant website the parties agreed a consent order in which they agreed that Katherine was deprived of her liberty in her home.

Hopefully, this will provide a little more clarity for those professionals grappling with deprivation of liberty in the community, but it is disappointing that we have no judgment to really get to grips with the reasons as to why. Some are calling for written reasons as to why the consent order was agreed, which might provide us with some of the answers. We wait to see if this will be provided.

The advice remains the same – take the words of Lady Hale incredibly seriously when determining whether someone is deprived of their liberty in any environment. You do not want to be landed with a bill of over £60,000 for unlawful deprivation of liberty as Essex County Council have recently faced following an appalling set of circumstances.

For further information about any issues regarding capacity, please contact Jess Flanagan or a member of our Court of Protection team.

The Office of the Public Guardian, Court of Protection and costs

Alan Eccles, Public Guardian and Chief Executive of the Office of the Public Guardian, published his report to Parliament in December entitled “Fundamental Review of the Supervision of Court Appointed Deputies by the Public Guardian“. It follows “Transforming the Services of the Office of the Public Guardian – enabling digital by default” published in August 2014.

Both reports cover key areas where the Public Guardian wishes to see change. The proposals, once implemented, should go a considerable way to protecting and supporting those who are worried about losing mental capacity or have lost capacity to manage their affairs.

The reports stem from common concerns and issues that are often raised with me. They include comments such as:

“Why are the forms so complicated”?
“Why does it take so long?
“Why does it cost so much?”

The Office of the Public Guardian is a government digital champion and believes that greater use of technology and innovation are at the heart of delivering a more efficient service.

There is little doubt that one of the drivers of the Fundamental Review is concern over cost. The report states that the proposals will provide:

“better control of professional deputy charges through annual plans, asset inventories, estimates of charges, fuller annual reporting and the better understanding of the professional deputy caseload resulting from the specialist teams building their knowledge and relationships”.

As I read through these reports again, my thoughts were focused on what families should be aware of when a professional deputy is required to manage the financial affairs of a loved one (“a Patient”) who is unable to manage on their own.

So what questions should families be asking a law firm or professional deputy to ensure that costs are kept down?

  1. Get out of London – professional deputies charge rates that are set out by the Supreme Court Costs Office. The hourly rates lawyers can charge are fixed. By way of example, for a senior lawyer, in London the chargeable rate is £402 per hour, in Bristol £217 per hour. The vast amount of deputyship work, apart from family contact, can be done outside of London. Clarke Willmott has offices both in and out of London. I will see clients in London but we do the work in Bristol. It keeps the cost down.
  2. Delegation. Does the law firm have a dedicated Court of Protection team? Does it have experienced lawyers at all levels? You don’t need a senior lawyer to help a family set up a direct debit (and you don’t want to pay a senior lawyer for that service), but you do need a senior lawyer to help with a complex statutory will.
  3. Case management and innovation – a dedicated Court of Protection team will have case management and software which helps keep the cost down. Many Court of Protection forms are repetitive, but data can now be entered very efficiently with the right software.
  4. Share the load – families may find running a Patient’s affairs overwhelming; hence the need to appoint a professional deputy. Nevertheless, the involvement of willing family members can be very helpful in keeping running costs down. They may be able to help, for instance, with aspects of day to day management. Other areas will require more professional input, such as putting in place a statutory will, tax issues, home renovations and the employment of carers.

The Office of the Public Guardian, Court of Protection and law firms need to innovate, change and look at how they can offer a more efficient, individual service. As a result many of the questions I am commonly asked should no longer be a concern for worried families who are trying to protect the interests of a loved one.

For further information about Court of Protection or deputyship matters please contact me or a member of our Court of Protection team.

New Year resolutions from the Office of the Public Guardian

The December 2014 report to Parliament on the “Fundamental Review of the Supervision of Court Appointed Deputies by the Public Guardian” was not necessarily on everyone’s Christmas wish list, but it is an important publication and one which the Clarke Willmott Court of Protection team (CWCoP) was very interested to read. Anthony Fairweather is a Court appointed panel Deputy and we also assist individuals to make applications to the Court to be appointed Deputies themselves.

Being appointed as a Deputy is not simply a case of spending P’s money in a manner which is in P’s interests (although this is of course an important part of the role). Any Deputy must keep accurate records of the decisions they make and an annual report is required to be submitted to the Office of the Public Guardian to ensure that the Deputy is fulfilling their role properly. As the report says – “the person lacking capacity is at the heart of all the OPG does”.

This has to be the right approach and is a reminder that the empowerment of P and their autonomy is at the core of the Mental Capacity Act 2005.

Here at CWCoP we are passionate supporters of the Court, the OPG and above all else P and those who are trying to help them. We are experienced practitioners who enable P (and their Deputies or Attorneys) to make the right decisions, whether this concerns health and welfare applications, statutory wills and care home funding or the management of P’s property and finance. We thoroughly embrace the OPG’s response to the review that it “has succeeded in its aims to generate a responsive, case-sensitive approach to supervision, with effective and proportionate oversight, in order to ensure that the person lacking capacity is protected and their needs met”.

2015 will bring its own challenges: we will start to see the practical aspects arising from the judgment in Cheshire West and many of the provisions of the Care Act 2014 come into force in April. We are ready for these events and are here to help.

We always enjoy engaging with people so if you are interested in us and our work take a look at our current blogs or follow us on social media.

For advice or further information about how we can help please contact Heledd Wyn or a member of our Court of Protection team.

Skipping a generation: an everyday story of country folk’s Wills

Listeners to The Archers BBC radio serial will have recently heard Peggy Woolley’s heartrending speech to her unconscious son Tony in which Peggy bitterly regrets having left Tony out of her Will. Happily Peggy still has chance to put this right, if Tony recovers, as of course a Will can be changed by a testator at any time provided that its maker has capacity to do so. But was Peggy wrong to leave  Tony out of her Will, and was she right to tell her family in advance about the contents of her Will?

Peggy’s Will

Earlier this year, over afternoon tea, Peggy announced the contents of her Will to her assembled family. For those not familiar with the programme, Peggy has three children, Jennifer, Lilian and Tony and one step-daughter, Hazel. Peggy told her children that she felt that her daughters were able to provide for their families but that Tony had not managed to do so as well and she therefore intended to leave her estate between Tony’s children, Helen and Tom.

Fans of The Archers have speculated about Peggy’s motives for drawing up her Will in this way (were the sins of Tony’s alcoholic father, Jack Archer, being imputed to his son?) but from an objective point of view was Peggy doing the right thing?

Generation skipping

Peggy’s Will favours two of her grandchildren over any of her children. If Inheritance tax (IHT) is an issue then this may well be a sensible way of reducing tax. If, for example, Tony was likely to be liable to pay IHT on his own assets then inheriting part of Peggy’s estate would simply increase the IHT payable on his own estate and reduce the amount ultimately passing to Helen and Tom. Leaving the assets to Helen and Tom direct bypasses this problem.

If IHT is not a concern and Peggy was worried about how Tony might deal with any assets left to him, could Peggy have dealt with this in her Will without disinheriting Tony altogether? Peggy could perhaps have considered creating a trust in her Will, either giving Tony the income when he was alive and leaving the capital to Helen and Tom after Tony’s death; or by creating a discretionary trust so that Peggy’s executors would have ongoing discretion over the assets in the estate and who should benefit.

The first option would ensure that the capital of Peggy’s estate would be protected and Tony might not have felt overlooked; the second option would have incorporated a great degree of flexibility into the Will. Peggy could have drawn up a Letter of Wishes stating how she would like any trust powers to be exercised which would have had moral force over her trustees, even though it would not be legally binding.

Could any of the children challenge Peggy’s Will?

Under English law Peggy enjoys complete freedom to make her Will in any way that she thinks fit.  If certain specified persons do not receive anything under the Will, or feel that they have not received sufficient, then they can bring a claim against the estate for reasonable financial provision.

Children are one of the specified classes that can bring such a claim. Historically, claims by adult children have tended not to be successful unless an adult child had a particular need, such as a disability, but in recent years the courts appear to be regarding such claims more favourably. Whether or not they would be successful, Jennifer, Lilian and Tony would have the ability to bring a claim, but doing so would both delay the administration of the estate, and increase the costs involved.

Is advance disclosure a good thing?

In our view Peggy was right to tell her children about her plans. However distressed they may or may not feel now, the situation would have been far more emotional if they had discovered the position in the aftermath of Peggy’s death. At least with their mother still alive they have the ability to raise any concerns they might have and to understand her motives for drawing up in her Will in this way.

And what about Tony?

Peggy’s declaration of regret at Tony’s bedside followed his serious injury from an incident with a bull and he is presently incapacitated. Let’s hope Tony has a Lasting Power of Attorney in place so the farm can still be run…but that’s another story.

For further information about making a Will or Power of Attorney, please contact Heledd Wyn.

End of life care and the Deprivation of Liberty Safeguards

Regular readers of this blog will know that we have written extensively about recent developments concerning DoLS: the Safeguards which protect individuals detained in a care home or hospital for the purpose of giving them care and treatment, but who lack the capacity to consent to that treatment or detention. In March 2014, the Supreme Court clarified that an individual without capacity is deprived of their liberty in circumstances where they are under the ‘continuous supervision and control [of their carers] and are not free to leave.’

Death in DoLS – Chief Coroner’s Guidance

There has been an unprecedented increase in the number of individuals whose detention falls within that definition of ‘deprivation of liberty’, so it is understandable that more departments are supporting someone subject to a DoLs authorisation and require guidance about the services they provide.

One of the issues currently being discussed is what happens when someone dies while they are the subject of a DoLS authorisation. How and when should inquests be undertaken in those circumstances and how should DoLS be used in a hospice environment?

Some of these questions have been answered by the Chief Coroner in ‘Guidance No. 16: Deprivation of Liberty Safeguards (DoLS).’ Found here.

The Guidance sets out the basic principles and the processes involved in authorising a DoL, but importantly, it clarifies that coroners are not there to determine the validity of a DoLS authorisation.

There was already a statutory requirement for a coroner to commence an investigation into a person’s death where the coroner had reason to suspect that ‘the deceased died while in custody or otherwise in state detention’, but the Chief Coroner provides guidance for coroners in deciding whether there should be an investigation into the death of a person subject to a DOL.

The guidance from the Chief Coroner is clear:

54. …In short once the relevant conditions are satisfied, the person is detained by operation of the law. This appears to be consistent with ‘compulsorily detained’ in s48(2) of the 2009 Act.

55. This view suggests that those subject to DoLS are subject in plain language to the restrictions of state detention. They are detained compulsorily under the statutory framework of the state. There should therefore be a coroner’s investigation (including inquest: section 6) in all cases.

What type of investigation?

With an increase in DoLS in care home and hospitals, I wonder whether the deaths of those individuals are more likely to be investigated by a Coroner? Where the answer is yes, the format that the investigation might take is important.

Although all deaths in DoLS will lead to an inquest, the guidance suggests that most deaths in DoLS will be investigated by a Coroner on the papers and only those who die in circumstances that are ‘controversial’ might benefit from an inquest with witnesses and submissions.

Only the deaths that are violent or unnatural, or where the cause of death is unknown, will be the subject of a jury inquest.

On Article 2 (right to life) inquests the guidance is brief, but says that the procedural duty to carry out such an inquest would arguably arise where the death is not from natural causes, or if the DoLS detention may be a relevant factor in the cause of death.

Many deaths in homes or hospitals cannot be viewed as ‘natural.’ Some deaths may appear to be natural, but are actually the result of a failure by the state to take measures within the scope of its powers to avoid a death where they knew or ought to have known that there was a real or immediate risk to the life of the deceased. As the volume of cases will inevitably increase, who will spot these deaths?

The decision of Cheshire West has already led to an increase in paperwork for Local Authorities, health authorities, the Court of Protection and now for Coroners. If these organisations become so overwhelmed with paperwork, will they notice the cases that need proper scrutiny? Further, won’t all of these paper reviews divert necessary resources from those cases that really do go wrong and would benefit from the detailed, independent scrutiny of a jury?

DoLS in hospices

The nature of the service provided in hospices means that the instances of deaths will be huge, increasing further the impact on the work of a coroner.

Why might this be an issue? When would someone receiving end of life care need to be made the subject of a DoLS authorisation?

On a strict application of the MCA 2005, and by analogy to the Court of Protection’s treatment of individuals with Persistent Vegetative State and Minimally Conscious State in relation to incapacity, when an individual is unconscious there is arguably an impairment or disturbance of the functioning of the mind or brain (s2 MCA 2005). The diagnostic test is fulfilled and when looking at the functional test, this is fulfilled because the patient is unconscious and they are unable to communicate a decision about where they want to live and receive care. It is likely that the care they are receiving and the environment they are receiving it in, is overwhelmingly in their best interests, necessary and proportionate and as such, meets the key requirements for a DoL needing authorisation.

Since there is limited state involvement in a hospice, will a DoL be attributable to the state and require authorisation?

Current legislation ensures that a private entity, if carrying out functions of the state (ie providing care funded by the state), will be caught by the DOLS and will need to obtain authorisation for any deprivation of liberty. Section 64(6) of the MCA 2005 confirms that it does not matter whether a person is deprived of their liberty by a public authority or not for the scheme to apply. It is therefore safer for a hospice as Managing Authority to ensure that the detention is authorised.

It has been suggested that if a patient goes into a hospice by choice (which is usually the case), they could sign a form to confirm that they give their consent and this might somehow avoid the later implication of a DOLS authorisation once capacity has been lost. I have concerns with that on a legal basis, as capacity is time and decision specific. There is no legal mechanism where a DoLS authorisation can be opted out of. It is a framework to authorise existing restrictions on liberty which amount to a DOL, and there is no ‘Advance Decision’ alternative to deal with this.

Is this another issue that might require legislation?

The Supreme Court decision has already led to an escalation of assessments and increased pressure on already depleted resources in Local Authorities and courts. Without a solution to DoLS in hospices this could be set to rise even higher, but concerns have been raised by individuals working with families in hospices as they really do not want to be troubled by Best Interests Assessors and DoLS documentation at a time when they want to be spending time with dying family members. This is an incredibly pertinent point.

It doesn’t always make sense to insist on the use of a framework which is there to support and protect the human rights of those who are living, for those who have gone to a peaceful and calm place to die. Does this mean picking and choosing when fundamental human rights should apply, and to whom? A tricky balance to achieve.

To discuss any of these issues please contact Jess Flanagan or a member of our Court of Protection team.