The European Convention on Human Rights, states that everyone has the right to liberty and security,
regardless of mental capacity or disability.
In this film, consideration is given to the Supreme Court judgment on Deprivation of Liberty led by Lady Hale,
which clarified that people who lack capacity to consent to the arrangements for their care and treatment
have the same rights to liberty as anyone else.
Well the Supreme Court were responding to Article 5 of the European Convention on Human Rights,
which provides very very strict limits on when the state can deprive people of their liberty
on the basis that they are unsound in mind.
There are very carefully circumscribed circumstances. I think it is actually also right to say that
when you look at what Lady Hale is saying, and she gives the judgment, the lead judgment, for the majority,
what Lady Hale is really looking at is not so much in a funny sort of way Article 5,
which is the right to liberty, but Article 8, which is the right to private life,
which the European Court of Human Rights and our courts have interpreted as including the right to autonomy.
Here, a panel of MCA experts look at the implications for practice of the Supreme Court judgment ruling
and the huge increase in requests for authorisations under the Deprivation of Liberty Safeguards.
We have all come here together today because it’s been about a year now since the Supreme Court
gave its landmark ruling really about Deprivation of Liberty,
which has caused a huge amount of interest in our world, the world of the Mental Capacity Act and DoLS.
How has the Supreme Court judgment about Deprivation of Liberty changed
what a Best Interests Assessor, or Independent Mental Capacity Advocate
looks for in a care home or hospital ward?
I’d be looking at the acid test, which is something that came from the Supreme Court judgment,
I would be looking to see if there’s a least restrictive way of doing whatever’s required to care for the person.
Because the principles of the MCA haven’t changed,
when an IMCA goes to work with a person they’re looking primarily at what that person is saying,
what they are articulating, what they are communicating to an advocate.
Factors around could that have been done less restrictively are certainly at the forefronts of our mind,
but really trying to put that person to the forefront of the decision.
And that hasn’t changed.
There’s been a perception that the law changed completely in March 2014
as a result of the Supreme Court decision in Cheshire West.
For reasons we don’t need to go into, actually that may not be correct, it’s just simply a clarification
of the position as it has always been.
But the perception is very much that there has been a change.
And that change has been seen as lowering the threshold for what counts as a Deprivation of Liberty
and expanding the scope of the number of people who are considered to be deprived of their liberty.
And the change that most people have picked up on is the use by Lady Hale in the Cheshire West decision
of the term ‘the acid test’ to say whether or not someone is deprived of their liberty.
The ‘acid test’, the phrase used by Lady Hale to determine whether someone is deprived of their liberty,
is comprised of two criteria:
Is the person under continuous supervision and control?
And is the person free to leave?
Given the real pressures on the DoLS processes, how can the DoLS managers make sure
that they’re sending assessors in the right order to respond to the right requests?
This is a big challenge for us following the Supreme Court judgment because
you know, up and down the country, supervisory body like us have been inundated with
applications for standard authorisations.
I think ADASS has quickly put together a group to
try and address these challenges. And one of the outcomes of that group is the formulation of a priority list
that has been sent out to all supervisory bodies and I think that is very helpful.
One of the issues for Best Interests Assessors is I think that quite often there is a small period of opportunity
to reverse what’s happened,
and if someone is somewhere they don’t want to be, and someone’s got a lasting power of attorney,
and they’ve decided that they’re going to sell that person’s home,
by the time we get there maybe the house has been sold, and possibly the view might be that they would be ok to go somewhere else
with a full package of care.
And they could’ve returned home, but home isn’t there anymore,
so you really feel that the boat has sailed for that person.
What do you think are the practical things that people involved in the DoLS process,
so that’s the Best Interests Assessors, and the IMCAs, and the authorisers,
can do to protect and enhance the human rights of the people who are being deprived of their liberty?
From my perspective, it’s to not lose sight of the principles of the Act in the first place,
and to continue using those, and using them in confidence.
You need to find out why someone’s behaving in a particular way or what they’re trying to do.
Because it’s really easy to misunderstand what someone is doing if they’re in a restricted environment.
Sometimes it’s about understanding the person’s life story, isn’t it.
And sometimes BIAs, because of the way they - well, often BIAs,
because of the way they approach assessments, pick up on these things.
And they ask the questions of care homes, why is that door locked, why would it not be safe to do this?
Sometimes they’ve done something and they’ve done it for a number of years,
and not revisited it, not reviewed it,
not looked at a less, a genuine less restrictive way of doing things.
Well the good BIAs I talk to, when they’re wondering how they can use DoLS properly,
they always see it as something they can really use as a tool to empower people.
They can really think creatively, they can put really creative conditions on a standard authorisation
to make sure that what is going on really is - not just calibrated to make sure that restrictions are as little as possible,
but actually make sure that really good things happen.
Make sure that conditions are put in to say that the care home must allow the person
to go to the church that they’d always gone to for 50 years.
Do things - on one view little things, but things that make a massive difference
to that person’s day to day life.
So as I say the good BIA assessors really think that they can do some good with DoLS authorisations.
With my advocacy hat on, it’s always got to be about the person,
and what they want, and doing everything possible to make sure that their views are not only listened to,
but their whole person is at the forefront of the decision making process.
And finding innovative ways to support that person to be involved.
I think that’s got to lead these kinds of decision making processes.
Because I think the danger is that people can feel alienated.
And the person drops out and this becomes process driven as opposed to person driven, and I think
there are lots of committed professionals, lots of committed advocates and decision makers who
really want to put people at the centre of it.
There are challenges, but I think we mustn’t lose sight of what the Act tells us.
It’s vitally important that Best Interests Assessors and others involved with the DoLS process
and also Deprivation of Liberty outside hospitals and care homes
take proper steps to keep themselves abreast of legal developments.
Because this is a legal landscape that changes.
And they absolutely have to make sure they know what’s going on at any one time as a matter of law.