The trouble with MEG

In so many ways, the case of MIG and MEG highlights problems with the Court of Protection and the deprivation of liberty safeguards.  In the first place, it’s a crucial case that significantly narrowed the parameters of what is considered to be a ‘deprivation of liberty’ in social care settings, and yet it’s not even been put on the Bailii website where lawyers find most judgments.  You can find it here, thanks to the excellent Mental Health Law Online website, but only because lawyers involved in the case have made efforts to get it there.  Given how much rests on these cases, given how practitioners in social care are crying out for more clarity about what a ‘deprivation of liberty’ is, why isn’t the Court of Protection routinely making these cases available?  I still speak to practitioners who haven’t heard of this case, but rest assured that care providers facing legal challenges are relying upon it to argue that the deprivation of liberty safeguards don’t apply to them.  Before I go on to discuss the ruling itself, I should say that the case was heard in the Court of Appeal in October 2010.  I know this, because it’s briefly mentioned in the excellent 39 Essex Street public law newsletter.  What we don’t know, even though the case is really important and it was heard three months ago, is the outcome.  In fairness to those involved, these cases can drag on if more evidence is needed, and it doesn’t help that the Court of Protection is woefully underfunded for the amount of cases it hears.  But we do know that a great deal hangs on the outcome; how the Court of Appeal rule in the case of MEG and MIG could significantly change the landscape of the deprivation of liberty safeguards.
The case of MEG and MIG concerned two sisters who both have moderate to severe learning disabilities, and who were removed from the care of their families due to ‘violence, sexual abuse of a sibling, neglect, chaos, and where her mother put her own needs and wants before her children.’ [208, 214].  MIG was 17, and lives with her foster carer, who she calls Mummy.  This is the kind of care arrangement HL in the Bournewood case enjoyed when he lived with Mr and Mrs E.  The legal and ethical issues may well be different in a foster placement, so I’m not going to talk about MIG in this post (although I will post on family and foster care another time).  MEG was 17, and lives in a care home.  It’s important to note that the deprivation of liberty safeguards could not apply to MEG, as she was not yet 18 and her care home was not ‘registered for the purposes of Schedule A1 of the Act’ [168].  This means that if she were found to be deprived of her liberty, the care provider (which is presumably a domiciliary care provider, or a children’s home, if it is not registered for the Act) would have to make a costly and lengthy application to the court for authorisation, and would have to seek periodic reviews.  Unsurprisingly, this is an eventuality that most care providers are keen to avoid if possible.  It’s one of the many inexplicable ‘holes in the DoLS’, that it doesn’t apply to many care settings where a person can be deprived of their liberty.  In the case Re RK the judge heard evidence that if children in care homes could be regarded as deprived of their liberty, the resource implications for local authorities – including compensation claims for unlawful detention – could be enormous [6-13].  Judges are usually careful to stress that concern for resources cannot influence their decision on whether someone is deprived of their liberty, but evidently local authority lawyers think it must have some sway or they wouldn’t bother to present this aspect of their cases.
So, the feature of the present case I am interested in is how the judge came to the conclusion that MEG was not deprived of her liberty.  MEG lives in a care home.  She has one-on-one, and sometimes two-to-one support [215].  For people who have not worked in care, it’s hard to convey how intense it can be working with someone one-to-one or two-to-one.  It means, in essence, that they are never left alone and are subject to ‘continuous supervision and control’.  Note the phrasing.  There are people with physical disabilities who require the constant presence of support workers to help them execute actions in their everyday lives – but they don’t require ‘continuous supervision’ exercised so as to ‘control’ them.  It seems as if the evidence heard by the court regarding physical restraint is unclear [217] – it is not referred to in the care plan, but it is mentioned in the context of controlling aggressive episodes.  Later on [233] the judge says that ‘Neither is restrained save for immediate purpose of ensuring safety, and, in the case of MEG, for her immediate protection and that of others when she has an outburst.’  This is a peculiar comment, since under s6 Mental Capacity Act restraint may only be used in these circumstances.  What the judge appears to be saying is that neither are restrained unlawfully; but surely, if restraint is relevant to whether a deprivation of liberty is occurring and needs authorisation, it must mean lawful restraint?
MEG is also prescribed Risperidone, a sedating antipsychotic.  Certainly in dementia care, Risperidone is widely regarded as a form of chemical restraint (see this report, for instance).  MEG is prescribed it to ‘help with anxiety’ [216].  ‘Anxiety’ can refer to a wide range of states.  In care homes I have worked in, people were given PRN sedatives for ‘anxiety’ when their behaviour became unmanageable.  It was never referred to as restraining them; the pathologisation of behaviours allows us to view what is in effect often an act of coercive control as ‘treatment’.  I’m not arguing that MEG shouldn’t be on Risperidone, but I think it is unfortunate that ‘No oral evidence was given about this medication and it uses at the hearing’ [216].  The judge finds the medication does not play a part in contributing to potential deprivation of liberty, because she ‘is not medicated to prevent her from leaving’ [217]. It would be highly unusual for medicine to be explicitly administered in order to prevent someone leaving a facility.  I don’t think many doctors would prescribe it for that purpose; but that could be its effect, all the same.  Even if it did not ‘prevent someone leaving’, it is a further manifestation of the ‘complete and effective control’ exercised over MEG’s body and mind by those who care for her.
The judge also considers whether MEG is ‘free to leave’.  She finds that if she ran away, she would be restrained and brought back [233], but elsewhere states:

Freedom to leave has to be assessed against the background that neither wants to leave their respective homes, there is no alternative home save that of their mother where neither wishes to live, and neither appears to have the capacity to conceptualise any alternative unfamiliar environment. [255]

This is a very interesting statement of a crucial issue regarding whether a person is deprived of their liberty or not.  In the view of Mrs Justice Parker, a person may not be considered to be deprived of their liberty if they have nowhere else to go, or show no desire to leave.  On the first point, whether there is an ‘alternative home’, it seems to me this cannot count against whether a deprivation of liberty is occurring.  The Convention permits, for instance for detention of vagrants (Article 5(1)(e)); they are vagrants precisely because they have nowhere else to go.  In fact, in one famous vagrancy case a lack of viable alternative residences was regarded to invalidate consent to detention, because consent could be regarded as ‘coerced’ by circumstances (“extralegal coercion”).  It would also lead to the rather odd conclusion that had HL been informally detained at Bournewood, but for some reason his carers could not take him back, he would have been considered more ‘free’ than when they were fighting to get him home.
This leads me to the question of compliance.  The underlying message of the Bournewood judgment is that detention of adults who lack the mental capacity to consent to confinement is a deprivation of liberty even if they are compliant.  In a hospital setting, in fact, the ‘rule’ is that compliant but incapacitated patients who would be prevented from leaving if they attempted it have to be detained under the safeguards because they are ineligible for the Mental Health Act – just like HL.  It seems that in this judgment (and others) the relevance of compliance to whether a ‘deprivation of liberty’ has occurred in a care home is splintering away from the criteria applied in hospitals.  It is almost as if compliance is being treated as consent to detention, which would be illegitimate where people lack capacity.  There are arguments that noncompliance increases the intensity of the restrictions, and thus tips the balance into deprivation of liberty; but I’ve yet to see a published case in a care home where someone was compliant and content and was regarded as deprived of their liberty (suggestions in comments very welcome on this).  We are in danger of viewing compliance not as an intensity ‘factor’ but as determinative of the issue.
This case was discussed at a conference I attended recently, where the excellent Neil Allen argued the key reason why MEG was not considered to be deprived of her liberty was that the care home was her home.  This seems like an attempt to bring her situation in line with other cases where people subject to restrictive care, including ‘continuous supervision and control’, are not regarded as deprived of their liberty because it occurs in the family home. The family home issues aside, to my mind there are significant problems with arguing that the care home constitutes a ‘home’ for MEG.  Many of the features that we would naturally associate with home are simply not present in care homes.  For me, calling a place my ‘home’ is very closely bound up with my ability to exercise my autonomy and control my surroundings.  I choose where I live.  I choose who comes into my home, and retain the right to eject them from it if I desire to.  I choose who I live with.  I choose how to occupy myself within my home – there are no ‘out of bounds’ spaces, and I choose how to dispose of the resources within it.  A loss of control over one’s surroundings, over who one lives with, over one’s personal privacy, is in many ways what we dread about admission to a care facility.  It is true that MEG is likely to be subject to a similar level of control wherever she lives.  To my mind, this calls into question whether – unless the Reach Standards are carefully applied – any facility caring for people who are subject to this level of control can be regarded as a ‘home’.  Indeed, in the case G v E it was argued that because he did not have ‘exclusive occupation’ of the property, because care staff came and went on their choosing and not his, it was a ‘sham’ tenancy.  This issue was not pursued for other reasons, but it is likely to come up again in court.
One of the most highly criticised aspects of the judgment in this case, is that the judge held that the ‘reasons for’ the restrictions were relevant to whether they contributed to a deprivation of liberty.  The judge was heavily influenced by the ‘kettling’ case, Austin, where the House of Lords controversially held that protestors ‘kettled’ for hours by the police were not deprived of their liberty because the police did not intend to detain them.  The Austin case has been really heavily criticised for narrowing the scope of Article 5 of the European Convention on Human Rights; it is going to be taken to the European Court of Human Rights.  If the ruling is condemned, as many believe it will be, then cases like that of MEG may be unsound.  Barrister Paul Bowen and solicitor Ben Troke have both pointed out that this line of argument makes it very hard to see when the safeguards could, logically, ever be applied.  A key feature of the Mental Capacity Act is that restrictions on liberty must always be in someone’s best interests, and a proportionate response to risks.  A key criterion of the deprivation of liberty safeguards is that deprivation of liberty may only be authorised when it is in a person’s best interests.  If parliament had felt that restrictions ‘in a person’s best interests’ didn’t count towards deprivation of liberty, it is hard to see why they would have drafted the legislation the way they did.  Lord Justice Munby put it well in the case JE v DE when he said:

The argument, if taken to its logical conclusion, would seem to lead to the absurd conclusion that a lunatic locked up indefinitely for his own good is not being deprived of his liberty.

The overall tenor of the judgment is that restrictions in the name of benevolent paternalism cannot amount to a deprivation of liberty.  To my mind that goes against the entire grain of the deprivation of liberty safeguards, and it goes against the grain of my instincts as well, having worked in plenty of places similar to where MEG is cared for.  Mrs Justice Parker enthusiastically cites Lord Hoffman’s dissenting judgment in a control order case, where he states:

Why is deprivation of liberty regarded as so quintessential a human right that it trumps even the interests of national security? In my opinion, because it amounts to a complete deprivation of human autonomy and dignity. The prisoner has no freedom of choice about anything. He cannot leave the place to which he has been assigned. He may eat only when and what his gaoler permits. The only human beings whom he may see or speak to are his gaolers and those whom they allow to visit. He is entirely subject to the will of others.

Aside from the legal quibble that it is rather bad form to rely upon a dissenting judgment that the majority of the house disagreed with (and not to even qualify it by acknowledging it was a dissenting judgment when citing it), the choice of quote seems to me rather peculiar.  The situation of MEG does share more than a passing resemblance to Lord Hoffman’s prisoner.  Do you think MEG chooses what and when and where she eats with the same autonomy as you?  Do you think she could decide to eat twelve mars bars at midnight on a picnic if she felt like it?  Could she even choose to eat a different meal to what’s ‘on the menu’ that night?  Or to eat later, or earlier, than staff decided?  And there are restrictions on who MEG can see; not only the restrictions imposed by any care home on ‘reasonable’ times for visits, but the court has previously placed restrictions on contact with her family – no doubt with good reason.  How many care homes would just let any person come in on MEG’s invitation, regardless of what they look like or whether they know them?  Because she is subject to ‘continuous supervision and control’, every decision that MEG makes is subject to potential overrule by those who care for her.  This is what is known in Republican philosophy as a ‘state of domination’; regardless of how often, in practice, one is interfered with, the ever-present possibility of interference is regarded as detrimental to liberty.
The point is, that for better or worse, MEG is ‘entirely subject to the will of others’.  This may be no bad thing if that will is exercised to protect her, and doubtless those caring for her strive to do so.  But the point about Article 5 is not that it outlaws deprivation of liberty in all circumstances, but that it recognises the inherent dangers within it and seeks to minimise them.  Dangers like being excessively vulnerable to the arbitrary, sometimes capricious, will of other persons.  The point of the safeguards is to impose external scrutiny, to ensure that coercion is kept to a minimum, that it never becomes abusive as it so easily could.  With dwindling visitation from CQC, with care staff under increasing pressure to deliver more with less, surely it seems appropriate that someone in MEG’s position – who is highly vulnerable – should have access to additional safeguards to ensure that her vulnerability is not taken advantage of?  And even if it never is, even if her care is executed to ‘least restrictive’ ‘best interests’ Mental Capacity Act perfection, it still seems uncomfortable to deny that she is not, in some way, less at liberty than you or I.  I have heard places like those that care for MEG referred to as ‘bittersweet prisons’ by those who have been confined in one.  This post by autistic blogger Amanda Baggs sets out eloquently what is wrong with the view that being subject to continuous control, even in one’s own best interests, is not experienced as a loss of liberty:

I have a recurring nightmare. I am in a beautiful building with a hushed, playful atmosphere. I have been there as long as I can remember. Everything I could possibly need is there. There are no locks on the doors. People follow me everywhere, but just out of sight, to give me the illusion of freedom. They want only the best for me. I can go outside and play in the woods, and I climb trees. And they treat me like a child. Everything is controlled perfectly. Nothing seems to be wrong, but nothing seems to be really right, either. Everyone is very sweet and very kind and very nice and very forgiving, but there is no freedom. Anywhere. This makes the apparent happiness of the place empty, shallow, and false. That, to me, is the essence of the intangible horrors I fear. Only when I wake up from this nightmare do I realize it’s a nightmare, and that in turn makes it all the more frightening.

It will be interesting to see what the Court of Appeal think.  The cynic in me wonders whether they won’t concur with this judgment.  The problem is, in many ways it suits a lot of people rather well.  No care provider wants to think of themselves as ‘depriving someone of their liberty’ (perhaps they should have stuck with ‘Protective Care’?).  If she is found to be deprived of her liberty it will have major resource implications not only for care providers who have seek authorisation, but also for local authorities in similar cases who will have to apply the safeguards.  Potentially it will be a drain on the resources of the courts themselves, not to mention the Legal Services Commission.  Not only that, but apparently whether the safeguards are extended to include ‘supported living’ hinges on the outcome of this case.  It could be a very comfortable ruling for everyone; let’s hope it’s that comfortable for MEG and those others like her.

10 thoughts on “The trouble with MEG

  1. I've had to read this post a few times. Thank you so much for bringing it to my attention. I have to say it has and is vexing me and my understanding of what I had judged to be 'deprivations of liberty' in my role as a Best Interests Assessor when I've been asked to make the judgement.
    In my experience, which isn't that extensive but on the basis that I was a 'founder' BIA, the guidelines and legislation was not particularly well drafted. It may well be that having been used to working with the Mental Health Act, the lack of case law was providing many more questions.
    Part of the problem is the separation of legal definitions and practical costs.
    Thank you for writing this. I will definitely follow with much interest.

  2. I agree that the case is troubling. Interestingly, the Equality and Human Rights Commission are said to have intervened in the appeal. My gut instinct is that there are two reasons for 'narrowing' the definition of DoL in social care. The first is a background concern with limited resources, and not wanting to extend the need for safeguards too widely. The second is that people simply don't want to acknowledge that social care settings can be very restrictive. Having worked in care homes, supported living and also psychiatric facilities for years it's certainly been my experience that care homes can be as restrictive as hospitals, even with the best intentions at heart. Only last week I heard of a supported living facility where they'd laid off night staff and started giving people their sleeping pills at 5.30pm. Wasn't even regarded as 'safeguarding' issue by the LA concerned, but I'm sure a BIA would see it differently.

  3. Hello

    This is a funny case that doesn't appear to fork any lightning, however, if you consider the opposite case from each of Judge Parker's statements about what isn't a DoL, this is potentially a quite powerful set of tests about what is a DoL. I don't know how this case came to the CoP. I surmise that either, in the part of the judgement that hasn't been revealed, MIG and MEGs' family opposed the placement decisions (which would clearly trigger MCA considerations about a contested placement). I suppose another explanation is that Surrey CC, having been responsible for one of the original seminal cases about the definition of a DoL now wish to play very safe indeed.

    Most DoL cases involve older people with dementia in care home and hospital settings and as someone professional concerned with the Safeguards, I'm slightly fed up with hearing mutually contradictory explanations about why each individual isn't being deprived of their liberty: if they make to leave directly, it's not a DoL, because they don't have a credible destination in mind; if someone clearly only asks to leave, then it isn't a DoL because they're settled and are not trying to escape. Obviously, the consistent factor is denial. I'm not sure which factor is uppermost: the hangover from pre-implementation guidance which was given with the implicit understanding that the process would have to be skewed to manage the flood of applications or good old fashioned professional paternalism. It's not just DoLS, the Mental Health Act is scandalously under-used with older people with dementias. It's not that they're not being confined in psychiatric hospitals, just that they forfeit the right to scrutiny and safeguarding because of patent diregard of the their objections to detentiion. I'd prefer a system where any placement decision for an incapacitated person was subjected to scrutiny but I'd settle for one where dissent and non-compliance was at least taken seriously as an indication for further investigation.

    Looking at the opposite cases from Judge Parker's tests, this should logically lead to a higher level of referrals:

    With older people in care homes, there often is
    an 'alternative home' in the accommodation the person has left, and, clearly, residents can conceptualise alternative environments for support. I think the idea of the 'subjective sense of confinement' cuts through bogus rationalisations about best interest being sufficient justification in itself for detaining someone. If we have klimited resources to apply scrutiny, people who don't want to be there are the group I'd start with. Obviously, care home placement is most usually the last option but my hope is that if DoLS procedures, working properly, place the onus on professionals, carers and support settings in demonstrating why arrangements are more desirable, that this would provide a more rigorous audit of practical liberties.

    Keep up the good work

  4. Anonymous, your comments are really interesting – thank you. I think that there wasn't any outright objection from the families (see paragraphs 212 and 219 – also point 'v' of paragraph 220); it looks as if the Official Solicitor were the ones raising the question of whether they were deprived of their liberty or not due to the restrictions in the care. I agree that there is a lack of clarity about what is and is not a 'deprivation of liberty', and this must be a huge problem for practitioners, families and even the courts themselves. My perspective is also that there should be wider scrutiny for very restrictive care of incapacitated adults, not just where families object to detention.

    On the subject of families objecting though, there are cases where they have objected and a person has not been found to be deprived of their liberty because they themselves have been content with the care. In these cases there tend to be 'safeguarding' allegations relating to the families, that's why the person was removed from their care, although in some instances these have later been found to be false.

  5. I agree that there should be scrutiny for major decisions in respect of the care needs of incapacitated adults, however, and in my view sadly, DoLS isn't the vehicle for this because of the clear intentions of the people drafting the legislation that inquiries and assessments about whether a DoL can be held to exist should be a rare occurence rather than routine event. However, I suppose it's a start. Even this battle hasn't been won yet because of the intense reluctance of Managing Authorities to engage with the process and the almost palpable relief from some Supervisory Bodies that there have been a trickle rather than a flood of applications. There have been discussions in these parts provoked by the hugely divergent numbers of applications made to local bodies. Some had had few or none and appear to be congratulating themselves about keeping the lid on things rather than wondering about the under-use of the Safeguards. In my patch we have a relatively high rate of referrals, stratospherically high compared to some nearby bodies, and high enough to provoke some comment that we must somehow be doing it all wrong. However, in the first year, the tests were applied in approximately 100 cases to 50 – 60 people. (I'm not giving away the Crown Jewels there, the figures and various anomymised data will be available online in a few weeks, I hear). In a population of near enough a quarter of a million, where a certain proportion of the local citizenry will insist on having dementias, learning disabilities and head injuries and the like, and having fairly eventful lives, I don't think having applied the test 100 times actually seems like a lot. I wonder how people will look at this in 10 years? I think the figures will climb as they have done for the numbers of formal PoVA safeguarding inquiries. I think that regardless of the figures, an intangible change in professional cultures is the goal to be sought. This can happen: some concepts from the MHA CoP are pretty well embedded in routine decision making.

    I heartily agree with your comments about people assuming that any act taken in best interest doesn't need further authorisation. Some of my colleagues who recommend few DoLS Authorisations seem to be looking for directly oppressive or punitive care regimes when they go out looking for DoLS rather than routine and unremarkable arrangements that the person just happens to find exceptionally onerous. To parody their position with some exaggeration and a degree of bad taste: they seem to be looking for people tied up the cellar and have walked straight past the people wistfully hanging round the front door of the home to get there and check. Thanks for the observation that even judges in the CoP seem to trip up over this one.

    I'd go with Richard Jones's commentary on a plea for removal creating a deprivation of liberty in the absence of any other factor and with the Munby J commentary in the Re: A and Re: C case about local authorities that don't have due regard to the limited nature of their statutory powers. I must note however, that while these eminent authorities probably have more experience of cases where things have gone drastically wrong than anyone else, most of the staff I see exercise caution and prudence and due respect when considering issues around family care-givers. I sometimes fear staff might be too deferential. I note that even in case law where it's evident there have been serious problems (like the Manchester case), the judges have not seen fit to undermine or criticise professional judgement and discretion about whether a safeguarding investigation needs to run its course or risk management measures need to be put in place.

    Thanks also for the post on the Essex Autonomy project. You might not wish to say, but are you involved with it in any way?

  6. I love your comment about looking for people tied up in the cellar and missing those hanging wistfully by the door, wish I was interviewing you for my research! I do agree with Richard Jones on the 'plea for removal' factor, but I think it has to be wider than that too to capture cases like that of HL in Bournewood – who couldn't make such a plea. I also think it's dangerous to rely on the point that people can't conceptualise anywhere else – well, that might be true where people are subject to really poor care, but it doesn't make it any less restrictive. Ironically, I think Lord Hoffman captured the spirit of it when he talked about prisoners who were 'entirely subject to the will of others' – people whose every movement and action is overshadowed by institutional control. Even where that 'overshadowing' is carried out in best interests. That's not the only form of deprivation of liberty, but it definitely should be included within it.

    Embarrassingly, I only discovered the Essex Autonomy Project the other day, but I'm very excited about their events. I hope some DoLS practitioners can come along to them, as I think they'd bring a really interesting perspective. The media focuses a lot on sex, sterilisation and surgery, and neglects the more 'mundane' aspects of liberty. However, I have a feeling the DoLS might be about to hit the news very soon…

  7. The plea for removal was made by HL's carers not HL.

    While I'd like to see a wider scheme of scrutiny for the care of incapacitated people and I do my miniscule best to make sure DoLS assessments happen when they should, I am a creature of statute and if I started to freelance, and widen the definition of a DoL, I might end up looking for another job.

    The main safeguard short of DoLS is supposed to be decision makers exercising their responsibilities to act in the person's 'best interest'. I field calls several times a week from care managers refusing to own up to these responsibilities and looking for someone else to act as the decision maker. Again, there'd need to be a change in professional culture before this safeguard functions effectively.

  8. “The plea for removal was made by HL's carers not HL.” – yes, sorry, I misunderstood – late at night and all…

    It's the responsibility of the courts and the drafters of the legislation to widen the definition of DoL if it needs to be done at all; I'd like to see a discussion about what actual harms Article 5 and DoLS are intended to safeguard against.

    Your comments on fielding calls from care managers who don't want to take decisions is interesting – I'll have more to say on this when I've finished my research! Don't want to be premature.

  9. Good luck with the research, I expect you might blog about it: could soliciting comments on the blog be a research methodology?

  10. Ha! I wish. I'd have to get it past the ethics committee first… still, other blogs and comments are always food for thought, which can send me off in new directions, even if I don't use them directly.

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