I once gave a talk at a conference where another speaker was talking in a general, but somewhat excited tone about the Mental Capacity Act 2005 – he said it was “the worst example of legislative drafting in over 30 years!” It is very easy to see why you may think it because the Act itself received Royal Assent in 2005 but had to be substantially supplemented in 2007 when Deprivation of Liberty Safeguards (DoLS) were introduced to it by the Mental Health Act 2007. A report by the House of Lords in 2014 stated that this legislation was not fit for purpose and the Government should look at it again – their response to this report was to outline that they do not believe there is a flaw in the legislation as framed (p29).
So in the meanwhile, we have to get on with it and this post is about one particular, very specific legal issue: whether or not the police have any ‘power’ when a patient who is subject to an order made under DoLS can be forcibly returned. However, just in case you’ve not heard of DoLS, let me explain a couple of basic things and I’ve kept this really superficial – I’m aware of the greater complexities but they tend to be beyond the needs of police officers and paramedics.
The Mental Capacity Act as a whole is concerned with providing a framework by which to decide what is in someone’s best interests where they lack the capacity to decide for themselves. For emergency services, there is something of a tool elsewhere on this BLOG to help you form a view about that where an urgent situation obliges you to do so – the “ID a CURE” test as I called it. A best interests assessor (BIA) is a trained professional who will take longer term decisions, in slow time about things like whether a DoLS order is required to place an elderly patient in a residential care home where they have become unable to look after themselves in their own home, for example.
Where a BIA reaches a view that a DoLS order is required – they would need to have a Doctor’s confirmation that someone is suffering from a mental disorder (broadly defined) – they can instigate it. Sometimes this is referred to as a Standard Authorisation and it can last for up to twelve months in the first instance and should be regularly reviewed.
Earlier this year, the Supreme Court had to reach a verdict in the case of Cheshire West – this case concerned a group of young people from both Cheshire and Sussex who were living in supervised accommodation because of their learning disabilities and were not at complete liberty to exercise autonomy. They were not permitted, for example, to go to the shop as they pleased or to visit who they wanted without consent and supervision of staff. The various hearings in lower courts led to much debate about what a ‘deprivation of liberty’ actually was and the Supreme Court had to determine this.
In a very memorable phrase, Lady HALE declared that “a gilded cage is still a cage” ruling that however professional and excellent the kind of accommodation and care that these young people received may be; and however much effort was expended making their lives as unrestricted and enjoyable as possible, if they could not – ultimately – come and go as they wished then they had suffered a deprivation of liberty. As such, BIAs are going to have to get busier or health areas will need far more of them in the opinion of many.
I wrote a blog in the week following the Cheshire West ruling in which I anticipated a rise of DoLS related issues for the police: whether that was around requests to convey some patients to hospitals and care homes; or whether it was connected to what the police may do if someone subject to a standard authorisation was reported missing or refused to return to the place specified in the order. We know that occasionally DoLS related requests came up so if we are now going to see more DoLS orders, we will see more police related requests in relation to it. Surely?!
DETENTION AND CONVEYANCE
So do you have a ‘power’ to convey or return a DoLS patient to a care home for example, if they refuse to return from visiting a relative they had permission to see or if you find them after they were missing? Best of luck trying to find a specific answer to that on the internet! This post comes around because of my good friend from West Mercia Police, Inspector Ben HEMBRY, ringing me up on Monday asking the question and it occured to me that I had not yet written a post on this. And yet since Cheshire West, I’ve had this question several times – I only ever received it once before this key ruling!
Yes – there are good grounds, should it be necessary, to argue that minimal force may be used to return someone to a hospital or care home who is subject to a DoLS order. Although it was always my view that officers, paramedics and others could rely upon the protection of sections 5 and 6 of the Mental Capacity Act in their efforts to return someone, I came across the case of DCC v KH (2009) whilst researching this piece. In it, the applicant (presumably a local authority) sought an advance declaration from the court that reasonable force could be used, consistent with the principles of the Mental Capacity Act 2005, in returning someone to their determined place of residence. Those representing the man concerned argued successfully that there was no need for such an order because such possibilities were covered by the Act as it stood. The district judge published his transcript of this telephone hearing and whilst this is not a stated case as such, it is about the only legal view I can find and it doesn’t appear to have been contested in the years since.
As with everything related to the MCA, you have to ensure that you are acting with regard to someone who lacks capacity and that you are acting in their best interests, in the least restrictive way. Obviously, a DoLS order demonstrates that a Doctor and a BIA have taken care of the first part for you, so it’s about police officers, paramedics or others determining whether something is in the best interests of a patient and going about the application of the use of force only where absolutely necessary, using minimal force in the least restrictive way.
You will have to judge that, case by case and context by context, but should you form the view that you need to, the ability to use force to safeguard people is ultimately capable of defence according to sections 5 and 6 of the Act.
Winner of the Mind Digital Media Award.