According to Community Care, the ruling of the Supreme Court in Cheshire will result in a ten fold increase in applications for authorisations for deprivation of liberty under the Mental Capacity Act 2005 deprivation of liberty safeguards (DoLS). The report covers a survey of 106 local authorities conducted by ADASS, which estimated that applications from care homes and hospitals will hit 93,900 in 2013-14, up from 10,050 in 2012-13. They also estimate that the Court of Protection will receive 18,633 applications for authorisations for people who live in settings which fall outside the scope of the DoLS, such as supported living. This would be an increase of a whopping factor of 140, up from just 134 last year. I can’t find a copy of the survey or its methodology, but the findings don’t seem implausible.
Without a doubt, the system will struggle to cope. It already was under strain, with some supervisory bodies already having difficulties finding assessors and completing assessments on time. But the impact of the ruling will be significant. I
I just want to step back and remind ourselves of how we got here. Take a look at this chart, showing the estimated and actual number of applications under the DoLS from the Bournewood Consultation back in 2005-6, through the actual underwhelming number of applications in the first few years of the DoLS, to the predictions of the ADASS survey for next year:
In the original Bournewood Case it was estimated that if HL required detention safeguards, so might as many as 48,000 other patients in hospitals. This clearly influenced the ruling of the House of Lords, and similar considerations were to worry the Supreme Court in Cheshire. In the Bournewood Consultation, the government estimated that around 50,000 people in care homes might also require safeguards. So the overall estimates back in 2005 looked an awful lot like the ADASS survey results following the ruling in Cheshire.
So what happened in between?
When the government conducted its regulatory impact assessment for the DoLS, published a year later in 2007, it estimated the number of applications as being far lower at 21,000, on the basis that the government ‘does not accept the view expressed by some respondents to the consultation that every person who lacks capacity to consent to the arrangements made for their care or treatment, and who is in a care home from which they are not allowed complete freedom of egress, are [sic] inevitably deprived of their liberty’. In other words, the government took the view that the ‘freedom to leave’ interpretation of deprivation of liberty was incorrect (in fact, the kinds of thing the government thought would amount to deprivation of liberty would hardly seem to be lawful under the MCA, see their discussion at paragraph 24). Not only did the government think there would only be 21,000 applications in the first year, they also thought the number would drop rapidly year upon year, as providers learned how to avoid deprivation of liberty.* This is what Lady Hale wrote about this projection (Hale, B. (2009) ‘Taking Stock’, Journal of Mental Health Law, Winter, 110):
For some reason they then predicted that there will be 21,000 assessments in 2009/2010, of which only 25% would lead to authorisation. They also predicted that assessments will rapidly decline to 6,600 in 2015/16 but a similar proportion will result in authorisations. This is because they think that care homes and hospitals will become skilled at avoiding deprivations of liberty. An alternative hypothesis is that they will become skilled at avoiding using these procedures, just as most people managed to avoid troubling the Court of Protection even though they should have done. The Ministry of Justice thinks that only 2.5% of authorisations will result in a Court of Protection hearing. We shall see, but current experience suggests that they have over- rather than under-estimated the numbers. The worry remains that people who are in fact being deprived of their liberty are also being deprived of the safeguards to which they are entitled
And of course, Lady Hale was right in her prediction – even if you took a narrow view of deprivation of liberty, there was no way of making sense of the low and extremely uneven application of the DoLS than to consider that some areas had indeed ‘become skilled at avoiding using these procedures’.
Between the Bournewood ruling and the impact assessment there had also been the ruling in JE v DE (2006), which took a more expansive interpretation of deprivation of liberty than the government apparently did, as not being free to leave. The Joint Committee on Human Rights commented that ‘following the decision in the case of JEv DE, it may be that the numbers of people deprived of their liberty will be greater than estimated by the Government.’ In Parliament, in one of only very few debates on the DoLS, Baroness Browning (who would go on to play a key role in setting up the House of Lord Committee on the MCA) quoted this report and asked Rosie Winterton MP how the government had calculated the figures in its impact assessment, saying ‘My suspicion is that the Government have underestimated how many people will be dealt with under the clause’.
The government’s narrow interpretation of deprivation of liberty back in 2007 also impacted upon their scope. As I’ve written about before, the government took the view that deprivation of liberty simply would not occur in supported living settings. This, despite the Commission for Social Care Inspection, the British Psychological Society and Age Concern (amongst others) all warning the government during the DoLS consultations that their scope would need to be broader than care homes and hospitals. This despite the Healthcare Commission and the Commission for Social Care Inspection reporting widespread serious abuse in supported living settings in Cornwall only the previous summer, an abuse scandal which involved – as the Mental Health Act Commission pointed out – unlawful de facto detention. So the government ignored this advice and did not design the DoLS to cover supported living. I strongly suspect that the lack of coverage of supported living and other settings outside of care homes and hospitals was a driving force behind the earlier Court of Appeal rulings which led to more restrictive definitions of deprivation of liberty. Because without an administrative procedure to cover these settings, what have you got? 18,633 applications to the Court of Protection in a single year, that’s what you’ve got.
So. We’ve come full circle. The estimates for the number of people requiring DoLS applications are now back at the levels predicted just after Bournewood. The Court of Protection is holding a hearing today and tomorrow to decide what it is going to do with all these applications. Supervisory bodies will have to find the resources to cope with the influx of applications. I really do wonder if an extra injection of cash from central government will be in order in the short term. Even this may not be enough – as Roger Hargreaves points out in the comments (below), there is a shortage in the supply of suitably qualified and experienced assessors. There is a real and present danger that in order to cope with the influx of cases, the processes will become little more than a rubber stamp. In the longer term, without a doubt, they will have to revise the Schedules. Not only have they been heavily criticised by the House of Commons Health Committee and the House of Lords Committee on the MCA, but clearly – if nothing else – the situation of such a large number of applications requiring direct authorisation by the court is untenable.
Another issue which will, in the longer term, need to be address, is the lack of any system of independent visitation in accordance with the UN Optional Protocol on the Convention Against Torture for many of these settings. This is another issue that was raised during the DoLS consultations – by the Commission for Social Care Inspection and the Mental Health Act Commission – but was not addressed. CQC do not have powers to conduct inspections in people’s own homes, which is what supported living settings legally are. Whether or not they could conduct visits on a consensual basis, or even on a best interests basis, without amending primary legislation, I don’t know. Whether the Court of Protection could, as a matter of routine, insert into orders authorising deprivation of liberty in a supported living settings a provision permitting access by CQC for OPCAT visitation purposes, I don’t know. But even then, there would need to be a system of notifications, so CQC knew where these people were, and that in itself would raise privacy issues (could the Court make an order that also gets around that? require that they are notified?). Even if CQC could find a way to conduct these visits, would they without a clear statutory mandate to?
There will be a lot of questions to be addressed when the government does revise the Schedules. Since the ruling in Bournewood we’ve learned a lot about what does and does not work. We will be in a much better place to make recommendations about what should be included in a new framework, about what needs to be amended and what else we need to consider. It’s just a shame, browsing the old consultation responses and commentaries from 2004-2009, that for many of these we didn’t even need hindsight – the warnings were all there at the time.
*And whilst we’re on the subject, they also estimated that only 2.5% of cases would need to go to court, a conclusion that seems improbable in light of the ruling in MH v UK, but that’s another issue for another day.