The Care and Social Services Inspectorate Wales (CSSIW) and the Healthcare Inspectorate Wales (HIW) have published a jointly authored report on a national review of the operation of the Mental Capacity Act 2005 deprivation of liberty safeguards (DoLS) in Wales. The inspectorates are responsible for monitoring the operation of the DoLS in Wales – just as the Care Quality Commission (CQC) is in England. In Wales, local authorities are the ‘supervisory bodies’ for care homes and Local Health Boards (LHBs) are the supervisory bodies for hospitals. This national review explored how supervisory bodies in particular were carrying out their DoLS functions. It did so through a survey of all supervisory bodies in Wales, and then fieldwork in each of the seven LHBs and one local authority in the ‘footprint’ of each LHB. The fieldwork involved ‘case tracking’ 84 DoLS applications (13% of all DoLS applications for that year), interviewing the Relevant Person and their representative (RPR), families, managers and health and social care staff. They also conducted focus groups with ‘stakeholder organisations’.
The report is well worth reading in full; it’s only 24 pages (I heard somebody describe it yesterday as something you could read on the train home, and I’d read it by time I got to the Severn Tunnel). This is, I think, deliberate – as the point is to ensure that busy DoLS teams and managing authorities get a chance to read it. Online, you can also read the individual reports on the seven LHBs and the local authorities in their ‘footprint’, if you’re interested in how a particular area is doing.
What was working well?
The report begins by stating what is working well. In particular they highlight the role of DoLS co-ordinators as the ‘lynchpin’ of the system, citing their impact on the quality and quantity of applications. Best Interests Assessors (BIAs) were described as ‘a skilled and valuable resource’ who have ‘a significant impact on influencing the practice of their colleagues as they act as an internal resource/champion within their teams and service area’. This echoes findings I’ve heard repeated throughout the sector – that DoLS teams and BIAs can often end up becoming ‘champions’ of the MCA and of human rights values more generally throughout the sector. Exemplar forms, partnership working and local good practice forums were all said to contribute towards better practice with the DoLS.
Supporting managing authorities
The report details a number of issues that echo findings in England. One recurring theme is that managing authorities – that is, care homes and hospitals – have only very limited knowledge of the MCA and DoLS, and rely heavily on supervisory bodies to support their knowledge and advise them of when and how to make applications. The inspectorates described this lack of knowledge as ‘very concerning’, and observed that there were discrepancies in the number of applications made by care settings with residents in very similar situations. They praised supervisory bodies who worked in partnership with managing authorities to try to support their understanding of the MCA and DoLS.
One of the big areas of concern for DoLS is potential conflicts of interest where a supervisory body also has responsibilities for arranging or providing care – meaning that they can end up being asked to authorize a detention which they themselves have brought about. This was a key concern in LB Hillingdon v Neary, where there was no clear separation between those responsible for planning Steven Neary’s care and those responsible for DoLS functions. Jackson J stated that ‘the supervisory body that receives the best interests assessment must actively supervise the process by scrutinising the assessment with independence and with a degree of care that is appropriate to the seriousness of the decision and the circumstances of the individual case that are or should be known to it’ (§175). The inspectorates praised LHBs for ‘a clear separation between Supervisory Body and Managing Authority functions’, but found that ‘governance arrangements within those councils that have both Supervisory Body and Managing Authority functions are not always clearly defined and separated as required in the Code of Practice.’ The inspectorates found that for most organizations DoLS supervisory body functions were located within safeguarding teams; the CQC reported similar findings in their 2013 DoLS report, and highlighted risks – especially for smaller authorities – ‘about how to maintain the conceptual distance between their safeguarding and their MCA (including the Safeguards) functions.’
Timescales and duration of authorisations
The study took place very shortly after the Supreme Court’s ruling in Cheshire West. I suspect the full impact of the ruling had yet to trickle through when the fieldwork was conducted, as only one of the supervisory bodies was described as having such a high volume of applications they had difficulty meeting timescales. Speaking to practitioners yesterday (and considering Community Care’s recent report on DoLS timescales), I think most places are struggling now. As the inspectorates note, the Code of Practice recommends short duration authorizations, yet this was seen to place the DoLS system under considerable pressure as it generated more reviews. It will be interesting to see if the average duration of DoLS authorizations changes as a result of Cheshire. The inspectorates expressed concern that this could increase ‘pressure to authorise deprivations without seeking alternatives’.
Article 5(4) safeguards
I was especially interested in what the report had to say about certain key safeguards required by Article 5 of the European Convention on Human Rights (ECHR), to ensure that a person is appropriately represented and supported in exercising their right of appeal under Article 5(4) ECHR. I think that lawyers often see the DoLS in a very different way to practitioners. Research that has focused on practitioners’ perspectives has often highlighted the improvements to people’s care arrangements driven through by best interests assessments and the use of conditions. I think this is really important, but I bet some lawyers don’t see this as the ‘true’ function of DoLS – which they might regard as more about ensuring a person that a person can challenge their detention. My view is that both are important, and I think that sometimes the value of assessments and conditions are underestimated by lawyers, who think that improving care isn’t the proper business of Article 5. I don’t especially see why DoLS shouldn’t also have wider human rights functions than Article 5 (after all, the Mental Health Act 1983 includes several processes that aren’t ‘pure’ Article 5 business).
Having said that, I often feel frustrated that there is not sufficient attention to the ‘appeal’ mechanism of the DoLS. There are converging sources of evidence that suggest that DoLS authorizations are very unlikely to be scrutinized by the Court of Protection (we’re hoping to publish something on this in a few weeks’ time, so I’ll say no more about it for now). In this study, the inspectorates case tracked 84 applications, and none of those cases involved a review by the Court of Protection. I think this is worthy of further comment and consideration – does this mean the DoLS appeal mechanism isn’t working? If so, this is a pretty serious finding.
There were other signs in the report that certain ‘special procedural safeguards’ (as the European Court would call them) that are of fundamental importance in ensuring people are supported and enabled to exercise their rights of appeal were often not in place. One finding that really shocked me was that in some areas ‘very few’ representatives had been appointed. On reading this, I actually went back to look at Part 10 of Schedule A1 which sets out the requirements to appoint an RPR, to check that this wasn’t discretionary. What is says is that ‘The supervisory body must appoint a person to be the relevant person’s representative as soon as practicable after a standard authorisation is given’ (s139 Sch A1). This is a clear duty, but I suppose it’s the ‘as soon as practicable’ bit that supervisory bodies are relying upon in not appointing an RPR. I would like to have known more about these situations – how long were people without representation for? What steps were being taken to find RPRs, and how much effort was being put into this? Were supervisory bodies appointing Independent Mental Capacity Advocates (IMCAs) until they could find an RPR? One local report in particular discussed this problem, and this report also found a very low number of referrals to IMCA services in that area when contrasted with DoLS activity and IMCA referrals in the rest of Wales. If this report is correct, this is deeply concerning, and suggests that fundamental requirements of Article 5 are not being complied with in this area – how are people to be supported and enabled to exercise their rights of appeal if they have neither a representative nor advocate to help them to do so?
The inspectorates raised concerns that – with a few exceptions – referrals to IMCAs were very low across Wales. IMCA providers felt that their role was not promoted or understood by supervisory bodies. This problem isn’t unique to Wales – I’ve written many times before about the low numbers of IMCA referrals under DoLS in England, including for supervisory bodies with very high levels of DoLS activity. I often joke that I’m going to get s39D(5) printed on a business card and hand it out at DoLS conferences, because I think many supervisory bodies simply have not read it and digested its implications. The point of this section is that supervisory bodies need to do more than sit around waiting for a request for an IMCA from the relevant person or their representative, they need to pro-actively assess whether or not they would be able to exercise their rights of appeal or review without the help of an advocate, whether they failed to exercise those rights (or would be likely to fail to exercise them) when it would be reasonable to do so. I very much doubt that supervisory bodies who have high numbers of DoLS authorizations yet low numbers of s39D referrals have fully understood and applied this provision. Failure to do so is a breach of statutory duty, yet it is also likely to violate positive obligations associated with Article 5.
On a more positive note, some supervisory bodies highlighted to the inspectorates that there can sometimes be a conflict of interest between RPRs and the relevant person. In particular, in situations where the RPR may support the detention but the relevant person does not. In these circumstances, IMCA referrals were seen as particularly important. I think this is an issue that the Schedules, regulations and the Code fail to emphasise enough, and I hope that eventually the Court of Protection clarifies that where a person is objecting to their detention and their RPR fails to support them to exercise their rights of appeal, an IMCA referral needs to be made (under s39D) to ensure the relevant person has the support they need to initiate an appeal. An alternative strategy would be to replace the RPR on the basis that they are not acting in the person’s best interests, but I think this could have the unfortunate effect of making families feel shut out (and – if they want representation in court – removing them from non-means tested legal aid). Positive obligations to support and enable a person to exercise their Article 5(4) rights of appeal could do with clarification in any revision to the DoLS and the Code of Practice.
The voice of the relevant person
One of the perennial challenges with monitoring the DoLS has been finding out about the experiences of the relevant person. In England, the CQC has repeatedly stated their commitment to ‘hear and report the voice of the detained person, their representative, and other supporters’ (from the 2014 report). For their 2013 DoLS report the CQC conducted ten interviews to focus on the experiences of those subject to the DoLS – yet the people concerned (ie. the relevant person) were thought not to have sufficient ‘capacity’ to be interviewed themselves, and so the interviews were with the care provider or family members or friends. In 2014, the CQC stated:
A crucial part of monitoring the Deprivation of Liberty Safeguards is to understand what they mean to the patients and residents who are subject to them and to see if they improve people’s experience of care or treatment.
Obtaining the views of people with severe dementia or profound learning disabilities can be very challenging. If people lack capacity to give their consent to the arrangements proposed for their care and treatment, and if these arrangements amount to a deprivation of liberty in a hospital or care home, it can be very difficult to obtain their views about what being deprived of their liberty means to them in practice.
The Welsh National Review states that inspectors actually did manage to speak to the relevant person, but – disappointingly – it only goes on to describe the experiences of carers and family members (whose experiences were, broadly speaking, positive).
There appear to be difficulties both sides of the border with hearing and reporting on the ‘voice’ of those subject to DoLS. This is what researchers would describe as a ‘hard to reach’ population (and the researchers aren’t doing any better; research in this area presents multiple methodological and legal challenges). In part this may have to do with the methodology for monitoring DoLS, which is different to monitoring the Mental Health Act 1983 – which explicitly requires private interviews with detainees. Yet it is also likely to be to do with the different ways in which people subject to DoLS may communicate. Written research and written reports rely heavily upon people being able to articulate their experiences verbally, yet many people subject to DoLS may express their experiences and feelings through non-verbal means, or only indirectly. This makes reporting the ‘voice’ of the relevant person extremely challenging – for monitoring bodies and researchers alike. It also makes regulating this are very challenging if one views regulators as ultimately accountable to service users. There are methods for describing and observing the experiences of people who do not use verbal communication, and hopefully the monitoring bodies will be looking at this for future reports. And by no means all people subject to DoLS will be unable to verbally articulate their experiences. This is an area that requires real thought and attention – after all, DoLS isn’t there for professionals, these are the people we are doing this for.