We saw last week’s judgment from the UK Supreme Court on deprivation of liberty safeguards in the case that became known as “Cheshire West” – it may be worth refreshing your memory about the ruling ahead of this post unless you’ve follow the issue as keenly some. I’ve spent the week watching with interest as the implications of this ruling unfolds for those individuals who undertake assessments of whether to make someone subject to Deprivation of Liberty Safeguards. These people are known as a Best Interests Assessor (BIA) and they apply DoLS, where needed. (BIAs are often Approved Mental Health Professionals who are additionally qualified, but there is no specific need to be an AMHP.)
The implications of the ruling seem fairly widely agreed in one important aspect: this judgment will render more people subject to DoLS. For reasons that are clear in the words of Lady HALE, deputy president of the Supreme Court who gave the main judgment, this is something we should welcome. It makes more equal the world in which we live for disabled people. It ensures greater oversight and scrutiny of the circumstances in which some disabled people live where they could be subject to restriction, if not restraint; and coercion through compulsory medication. It has to be right that such things are done within a legal framework, to protect rights?
Before I say anything in particular, I also want to be clear about what I’m NOT saying! I am *not* about to claim that we are soon to see a tsunami of demand connected to DoLS – my point is not mainly about the volume or frequency of these things, although if we are currently seeing some DoLS related police requests. My principle point, however, is not about the frequency of these kinds of demands because overall they will still seem merely occasional – my point is about the vagueness of the answers and the difficulty in finding the answers if you’re not familiar with this stuff.
A GILDED CAGE IS STILL A CAGE
So the ruling being welcome, there are some obvious implications for public organisations and that will include the police. Although rarely, I have known requests be made of the police in connection with the Mental Capacity Act and to DoLS in particular. They all sound very similar to any officer who has responded to supported Mental Health Act assessments, conveyance or absenteeism. Could officers help move someone from here to there who is resistant or refusing; could officers help find and return someone who has absented themselves from a place where the were supposed to be?
Standard stuff in many respects, until you hit upon that feature of the incident that is markedly different to these kinds of requests where they happen under the Mental Health Act: this is not law that is clear about powers and procedures and it is not even as familiar as the MHA might be to police officers – not that the MHA trips easily to the frontal lobes when policing, let me tell you.
So here are scenarios for frontline officers to contemplate —
- Do you have a power to return a person against their will to a residential care home, for example, if they are subject to DoLS? – could you outline your power by which to do so, if you think the answer is yes?
- You have attended a domestic address because a BIA has undertaken an assessment of a young man with a learning disability. Because his father recently died and his mother is in poor help, he is to be accommodated in a nearby residential setting but is distressed at leaving his home and has become disturbed. Officers are being asked to assist in moving him there.
- You have been asked to attend an inpatient unit for patients with learning disabilities where a woman who had been sectioned under the MHA is now going to move to step down accommodation, subject to DoLS. You have been asked to convey her from the one place to the other.
Do we even know what this means? Had I posted all three of those questions with regard to MHA scenarios, I suspect plenty of people would get the answers wrong. As soon as you introduce DoLS and the MCA into it instead of the Mental Health Act, it becomes a legal car crash waiting to happen for reasons that are plainly obvious. As I have noted before —
- There is no explicit answer to question 1 in the MCA or DoLS – none whatsoever.
- There is no explicit answer to question 2 in the MCA or DoLS – none whatsoever!
- There is no explicit answer in question 3 in the MCA or DoLS – none whatsoever!!
A LACK OF CLARITY
And, as with the Mental Health Act, you cannot point to the MCA or DoLS and say, “there is the section that allows people including police officers to use reasonable force in realising the coercive aspects to this legislation.” So even if you felt you could argue “Yes” to any of these questions – and you can, see below – the stuff is not written in a way that affords confidence to those who rarely deal. Police officers like that sort of reassurance before they go around coercing or even hurting people for a living – from where do I derive legal authority to do this. They will regret the lack of clarity provided by the Police and Criminal Evidence Act 1984 (s117) for the use of force when arresting, searching or seizing evidence; or by the Criminal Law Act 1967 (s3) when preventing crime.
The MCA is all “best interests” and “least restrictive principles” – it is all fogged, as is the MHA, with the fact that decisions are bound inextricably to the judgement of other professionals to instigate legal frameworks that are not for officers to question. However, officers then have to judge whether coercive force by the police capable of justification against the principles of the MCA. It this the ‘least restrictive thing’ in someone’s ‘best interests’? So, in seeking to answer my three questions, above, you need to go back to you general understanding of the Mental Capacity Act.
When the House of Lords reviewed the MCA in a report which was published last week, some commentators had observed when giving evidence to the committee that DoLS in many important respects was a different Act of Parliament altogether. In fairness, DoLS was not originally any part of the MCA – the 2005 MCA had Royal Assent and was on the statute books before DoLS was introduced by the 2007 Mental Health Act. This inserted DoLS into the MCA to plug legal problems that arose from precisely the kinds of cases that were heard in Cheshire West: the long-term detention of patients in residential care settings. The House of Lords also agreed that the MCA has various problems, citing that there could be tens of thousands of people who were illegally detained.
So Cheshire West now lends verisimilitude to that view: we should only expect police-related demands arising from this to go up, not down.
I argue that all of the answers to the three questions above, are “Yes!” in principle – but subject to two conditions. There would be a legal ability to return someone to a residential setting if they had absented themselves outside the freedoms they are permitted under their living arrangements. There would be an ability to support a BIA in achieving the admission of a person to a residential setting where they have been moved after a change in circumstances or condition. There would be an ability to help health or social care services transfer a person from one living arrangement to another.
But my two conditions are important conditions, to do with other kinds of problems we’ve seen in police support to MHA processes and we can reasonably be expect these things to be considered amidst any review of the appropriateness of police involvement or police actions —
The “could” versus “should” problem – just because the police could, in theory, do something to support BIAs in their work does not mean that it should be something the police support and difficult situations arise from a joint failure to consider how this partnership interface would work in reality. Do you really want police officers using police restraint techniques on dementia patients or teenagers with Down’s Syndrome? << Not unless it is absolutely unavoidable and an absolute last resort. We know about the problems of police involvement with vulnerable people outside of situations where we are referring to criminal behaviour or seriously aggravated risks and we should be able to plan around the need where we are referring to passively resistant people who are simply refusing, perhaps from nothing more than fear of the unknown.
The oversight or “governance” problem – we know that not all areas put together protocols and procedures for how the MHA will be delivered in a local area, despite this being a requirement of the Mental Health Act Code of Practice. As it is not, strictly speaking, a requirement to have similar arrangements for issues connected to the Mental Capacity Act, it would now seem wise that these sorts of operational situations highlighted above, are considered so that we do not have ad hoc responses and reactions, like we have seen in various incidents in care homes and other residential settings. PPPPPPP, etc..
I repeat an earlier point to end – this is not about trying to scaremonger about the potential influx of high levels of demand. These things will still be rare events indeed. It is simply to say that the implications of this ruling suggest they will arise “a bit more often” and there will be slightly more need for the police and partner organisations to have thought about this interface and to consider providing leadership for frontline staff as they go about their work.
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