“Your name doesn’t matter, young man, your job is to get me out of here – get on with it!”
Yesterday the Care Quality Commission (CQC) published their annual report on the Mental Capacity Act 2005 deprivation of liberty safeguards (MCA DoLS). Alex Ruck Keene has already summarised this so comprehensively you don’t need me to do so. Instead, I’ll pick out some edited highlights from the report that really stood out for me.
A landmark year
As David Behan, Chief Executive of CQC, notes in his foreword, March 2014 was a ‘landmark’ in the DoLS – with the publication of the report of the House of Lords Committee on the Mental Capacity Act and the Supreme Court handing down its ruling in Cheshire West the following week. So it is timely that the report steps back and looks at the emerging themes in DoLS monitoring over the first five years. As CQC note, previous reports have expressed concern about very low and variable numbers of applications under the DoLS, leading to concerns about unauthorised deprivation of liberty. Each year, the CQC have expressed concern about finding poor understanding of the MCA in general among providers (and as Community Care have recently reported, the CQC cited failings in relation to the MCA and the DoLS in relation to most care providers rated ‘inadequate’ under their new monitoring system). And, again, providers are failing to notify the CQC when they have a DoLS authorisation or detention authorised by the Court of Protection in place, which is a regulatory offence and also has practical implications as it makes it more difficult for CQC to monitor the rights of detained people.
In several places in the report, the CQC welcome the Supreme Court’s ruling in Cheshire West for offering greater clarity. One of the (many) problems with the high levels of uncertainty about the meaning of ‘deprivation of liberty’ prior to the ruling was the difficulty for the regulator in enforcing use of the DoLS when providers could perfectly reasonably say that it was unclear whether or not they should have applied for authorisation. However, CQC clearly are aware of the difficulties resulting from the Cheshire West decision and its implications are discussed at length.
Taking a stance on IMCA referrals, citing MH v UK
One of the developments I was really delighted to see in the report is its implicit focus on MH v UK. I’ve written about this case before, but in brief, it means that states need to ensure that where a person is deprived of their liberty and they are unable to be able to independently exercise their Article 5(4) ECHR rights to seek a court review of the lawfulness of their detention, there need to be ‘special procedural safeguards’ which ‘may well include empowering or even requiring’ (para 93) somebody to help the person to seek a court review. As I wrote about the DoLS, this role is primarily fulfilled by the relevant person’s representative (RPR), with Independent Mental Capacity Advocates (IMCAs) supporting either the RPR or P to apply to court. Yet, I raised concerns that in circumstances where the RPR could in theory help P apply to court, but did not do so (perhaps because they actually supported the detention), one could technically read s39D MCA in such a way that P was not entitled to help from an IMCA and so in effect nobody would help him to appeal. This is likely to be incompatible with the ruling in MH v UK. The CQC, citing MH v UK, clearly have this state of affairs in their sights when they write:
Local authorities told us of a range of practice in IMCA referrals, with some saying they would only instruct an IMCA if recommended by a best interests assessor. Even where there was disagreement between the person and the representative, some said they did not instruct an IMCA. This practice is to be deplored as if the RPR does not help them to challenge an authorisation, it is hard to see how many people subject to an authorisation can exercise their right to challenge it. (p28)
CQC’s monitoring of the MCA and the DoLS
As readers will know, I’ve grumbled many a time in the past about CQC’s monitoring of the MCA and the DoLS. In fact, an entire section of my PhD thesis was a grumble on this theme. My feeling is that in the last couple of years CQC has really begun to turn this around. The MCA and the DoLS are explicitly in the new inspection methodology, all new CQC staff are trained on the MCA and the DoLS in their induction, and there is specific advanced training for 100 inspectors across all regions who will become CQC’s ‘MCA leads’ to provide support and advice to other inspectors (mirroring the role of MCA leads in health and social care). CQC also has a specific Mental Capacity Act 2005 policy lead, Rachel Griffiths, who many people will know is a tireless advocate of ‘finding the least restrictive option’ and is the bane of all care providers applying blanket rules and restrictions.
I am not just saying this because I am on the DoLS advisory group, but I really do think that CQC have come a very long way in the last couple of years in their monitoring of the MCA and the DoLS. I suspect this is due to a number of factors – perhaps partly because CQC itself has been around as long as the DoLS and is now beginning to overcome some of its initial serious challenges in setting up. Perhaps it is the change of leadership, a greater focus on human rights post-Winterbourne, and the criticism made by the House of Lords Select Committee that it could do more to embed the MCA and the DoLS in the health and social care sectors. I am not saying that monitoring of the MCA and the DoLS is perfect or the best it can be – there is always room for improvement – but it is very clear from the report that the organisation is taking a pro-active approach to monitoring the DoLS, rather than scrabbling around once a year looking for something to say about it (as seemed to be the case in the early reports).
The voice of the detained person
One of the most significant challenges for CQC in monitoring the DoLS has been hearing the voice of the detained person. This is routinely captured by CQC in their monitoring of the Mental Health Act 1983, but the CQC have had real difficulty doing this in respect of DoLS. I am still not entirely clear why, but it may have to do with the different ways in which inspectors monitor the frameworks on the ground and capture that information. It may also have to do with how articulate the different detained populations are. It may, prior to March 2014, also have been that CQC inspectors simply did not come across that many people detained under the DoLS – following Cheshire West, that can no longer be the case.
Whatever the reasons, CQC are starting to report on the experiences of detained people. I think this is the area they really need to build upon in the future – perhaps working with their MCA lead inspectors to get inspectors on the ground to start routinely speaking to detained people and their families and recording their experiences.
Nevertheless, the report is full of illustrative case studies of the use of the DoLS. These case studies reveal that DoLS are being used not only to help people challenge where they are living (there are examples of people returning home after assessors found they had mental capacity or that a care home placement was not in their best interests), but also how they are living. The search for the least restrictive option can simply mean lifting restrictions within the care home, not necessarily a return home.
I want to leave you with my favourite case study from the report, that of Mrs V:
Tim V told us about his experiences of the Deprivation of Liberty Safeguards. He lives abroad, although is often in England. His mother, who was then 99 years old, fell out of her chair and was admitted to hospital. When she was ready to leave hospital, Tim was told she would have to go into a nursing home. He said:
“At this time, her bouts of confusion were coming and going; she had hearing difficulties but often seemed her old self. I found a pleasant care home: she didn’t like the idea but accepted admission. Staff were helpful, I would Skype them and they’d hold the screen for my mother so that we could have chats.”
But Mrs V became very unhappy in the nursing home, telling visitors and staff that she was being kept prisoner. The home applied for authorisation to deprive her of her liberty.
“I rapidly realised there was a complicated process, full of acronyms. But I didn’t find it burdensome because the conversations with the best interests assessor (BIA) were so pragmatic, so practical, so full of common sense. I am sure I couldn’t have got my mother home without his help.
“The BIA and I shared a laugh when he told me about his first visit to my mother. He’d told her his name when he first arrived, and asked her, after about 10 minutes, if she could remember it. She rounded on him and said, “Your name doesn’t matter, young man, your job is to get me out of here – get on with it!”
Mrs V was very keen to return to her own cottage, which was still available for her. The BIA identified that a return home, with support, was less restrictive than keeping her in the nursing home where she didn’t want to be, and that this option hadn’t been tried. He tackled head-on the issue of ‘risk’ that kept coming up, telling Tim that judges say there’s no point in making a person completely safe if it makes them immensely unhappy. Mrs V told her son how happy she was to be back in her familiar surroundings, seeing old friends, and that she felt more comfortable. Tim said, “She’s now 101 and still at home, I think she may be on the last lap. I’m glad, perhaps selfishly, that she’s where she wants to be.”