End in Sight for DOLS

The end in sight for DOLS, asks Simon Burrows

In a somewhat damning report the House of Lords Select Committee has recommended a wholesale overhaul of those parts of the Mental Capacity Act 2005 that regulate the detention of mentally incapacitated people in hospitals and care homes. The report – see http://www.publications.parliament.uk/pa/ld201314/ldselect/ldmentalcap/139/139.pdf

is scathing of the badly drafted Schedule A1 to the Act, introduced by the Mental Health Act 2007, which has attracted the title Deprivation of Liberty Safeguards (or DOLS) although this has been seen as a misnomer by many in the relevant professions for some time. As the Committee makes clear, many who should be safeguarded are not and many thousands of incapacitated people may be detained in care homes and hospitals throughout the country with little or no legal safeguards to protect them.

The report comes a week before the Supreme Court hands down its judgment in what has become the seminal case in determining which people who are placed in supported living arrangements and, by implication, hospitals and care homes are in fact deprived of their liberty. It is hoped that P (by the Official Solicitor) v Cheshire West & Chester Council and P & Q (By the Official Solicitor) v Surrey County Council when handed down on Wednesday 19^th March will clarify at least one difficult area that has led to the widespread misunderstanding that the House of Lords finds so prevalent.

Simon Burrows, who acted for P in the Cheshire West case from first instance to the Supreme Court, will provide another note on the judgment on Wednesday morning.

Westminster CC-v-Sykes

Sam Karim of the Kings Healthcare Team writes about the recent Court of Protection decision in City Council v Sykes [2014] EWHC B9 (COP).

Although MS suffers from dementia and lacks capacity, there were sufficient factors to justify a trial period of home care rather than the deprivation of her liberty in a nursing home. The judgment was published and MS’s anonymity lifted in light of the public interest of the case and the personal characteristics of MS weighing in factor of such an outcome.

MS, an 89 year old who suffers dementia, was deprived of her liberty at QX Nursing Home by virtue of a standard authorisation granted by the local authority under the Mental Capacity Act 2005. MS repeatedly expressed her wish to return to her home in central London. On 19 September 2013, the court issued a section 21A application, by which the local authority asked the court to review the standard authorisation relating to MS. MS and her litigation friend’s opposed her MS’s placement in the nursing home.

The local authority highlighted problems experienced by MS leading up to her admission: lack of acceptable care, altercations with neighbours, self-neglect, unhygienic living conditions, wandering and a lack of awareness of personal safety.

HELD: Due to her dementia, MS lacked capacity to make relevant decisions for herself. There was only one requirement really in issue in relation to this case: that of the best interests of MS. This is an objective test, taking in a diverse range of factors. The task was to identify which of these factors should be compromised in the best interests of MS. The Court found that the risks involved in there being a one month home care trial period were acceptable and manageable, so as to justify a home care trial taking place. The local authority was to put a home care plan in place, along with plans for what would happen if the trial failed, or MS’s funding ran out.

The interference with MS’s home and private life was said to be prescribed by law, a proportionate means of dealing with the risks to MS and for the permitted purpose of attending to MS’s health.

The Court thus held that the standard authorisation would not extend after the point that MS returned home.

Anonymity/Reporting

The normal rule is that the anonymity of an incapacitated person and their family members should be preserved. Nonetheless, the Court held that there was good reason for this judgment to be published. The case involved matters of fundamental rights, such as deprivation of liberty and the rights of incapacitated persons, and there was a clear public interest in it being imparted.

It was appropriate to lift the veil of anonymity, although this was noted to be an unusual case in which the case for being named outweighed the usual anonymity. MS’s personal characteristics were said to be a critical factor, in particular, she always wished to be heard and would want to exert a political influence. By contrast, the family of MS, her nursing home and her professional carers could not be named unless they chose to name themselves. The local authority and experts could be named.