This post is one I have been reluctant to write – Deprivation of Liberty Safeguards are seen as somewhat complicated and potentially difficult to understand and issues for the police arising from DoLS have been queried with me only very, very rarely indeed. I did offer a few thoughts on them last year, but isolated to the specific issue of vulnerable people who lack capacity who wander off and need to be returned. Getting into the detail of urgent and standard authorisations, etc., is something that I put off on the grounds that it doesn’t arise very often and hoping that common sense could prevail! But alas, the questions are now flying in and I can’t put it off any longer – must grasp that nettle!
You will remember one of the key legal judgments of 2014 was the ruling in the case referred to as Cheshire West. This involved the Supreme Court having to decide what a ‘deprivation of liberty’ actually was, because it wasn’t precisely defined in the primary or secondary legislation. In a most memorable phrase, Lady Justice HALE pointed out that “a gilded cage is still a cage” and went on to outline the so-called ‘acid test’ establishing that where someone is “under constant supervision, control and unable to leave” we are very firmly into Deprivation of Liberty territory.
The Mental Capacity Act and the Deprivation of Liberty safeguards came about because of a ruling in the case of HL v UK (2004) – this was a human rights case about using the doctrine of necessity to detain a person who lacked capacity in a residential setting. So DoLS authorisations tend to occur with regard to adults who lack capacity who require ongoing hospital treatment, supported living arrangements or residential care of some kind.
BEST INTERESTS ASSESSMENT
Police officers’ contact with the Mental Capacity Act has historically been the more spontaneous or urgent incidents where they and / or other 999 colleagues are decision-makers about someone who lacks capacity. For example, action taken at an RTC about an intoxicated pedestrian with a serious head injury who attempting to decline medical help when they lack capacity to do so; or a person in their own home who is seriously mentally ill and has taken an overdose likely to prove fatal if action is not taken.
DoLS doesn’t touch this world at all. All of those types of incidents are things I’ve covered before and if officers are acting in accordance with ss 5, 6 and 4B they will have a general defence to accusations that they lacked authority for the action they felt they must take. It is against this background that the ‘Sessay’ and ‘ZH’ cases were lost, because officers were not acting in a way that was defendable against the principles and defences of the MCA.
Where longer term decisions are being contemplated or taken, usually in less urgent circumstances, the Deprivation of Liberty Safeguards become key. An elderly adult living along who has Alzheimer’s, initially living independently but their condition having slowly deteriorated over a number of years, DoLS could be considered where suggestion is made they can no longer live safely on their own AND that they lack capacity to take decisions for themselves. If the suggestion were that a residential care home was the only way to provide effective supervision and care, then that option is open to that individual to agree to it. But what if they and / or their families are objecting to that course of action?
This is where a ‘Best Interests Assessor’ (BIA) comes in. Any number of professionals can qualify to act as a BIA and many Approved Mental Health Professionals undertake this function. That said, many BIAs are not AMHPs and the role is distinct and very different to the decision-making issues in the Mental Health Act. All clear so far?! Excellent!
STANDARD AND URGENT AUTHORISATIONS
I am going to deliberately write a simplistic outline for the purposes of allowing police officers to police effectively, which is the reason for my running a BLOG in the first place. If you are reading this post from another perspective or want more detailed information, I can highly recommend the website of the Alzheimer’s Society and in particular a Deprivation of Liberty factsheet.
Hospitals and care homes can apply to a ‘supervisory body’ in order to authorise them to deprive someone of their liberty. If the proposed action were to involve supported living arrangements, then a local authority must apply to the Court of Protection. This Court hears all cases that arise from the Mental Capacity Act, not just around DoLS and it can be accessed 24 hours a day, if required.
When a standard authorisation is made, the supervisory body – usually, this will be the local authority in that area – will arrange to assess the person’s needs and either grant or decline the application. If granted, they may then undertake proportionate actions in that person’s best interests to care for them. If a situation is pressing then the applicants can grant themselves an ‘urgent authority’ to act, which lasts for seven days and they will make application for a standard authorisation assessment at the same time. The supervisory body can extend this urgent authorisation for a further seven days, if required. During this time, the hospital or care home can take those same proportionate actions to provide care, knowing that they have applied for an assessment and standard authorisation. Straight-forward enough, so far!
The problem at the moment is that the 1000% increase in requests for assessments following the Cheshire West judgment means that many areas are quite simply unable to undertake all of the assessments they are asked to make in timescales that suit. There are obvious implications here for the police, if they become involved and I’m going to cover some of the implications for the police, below. But in the latter part of 2014 we have seen cases brought that involve people who were deprived of their liberty, but not in accordance with the procedures that I have just summarised and over simplified for your benefit! Hence we’re into unusual territory involving vulnerability, legality and complexity.
POLICING AND DoLS
Why would the police become involved? You might be interested in this BLOG from Dr Lucy Series – “Call the Rozzers!” Does this all mean that some care homes and kidnapping and falsely imprisoning people? Well, those who are taken from where they say they want to be, to another place and held there against their will, does rather fit those definitions, doesn’t it?! Police officers get called to kidnaps and false imprisonments, so we need to be prepared for these versions of those allegations. Remember, assessment of liabilities around false imprisonment means that once the fact of someone’s detention or imprisonment is established, the burden of proof is upon the authority or person doing the imprisoning to explain why it was lawful. So where police officers and forces are accused of this following contested arrests, it is usually beyond doubt that people were detained in the cells, because we wrote it in the custody record and captured it on custody CCTV. Thus the burden is on the officer to say, “I arresting him for reasons X, Y or Z under s24 PACE because I had reasonable grounds to suspect he was responsible for an assault.” Or similar.
Do you remember my true story from many years ago? – the one where a mental health nurse on a ward rang up to complain that a patient was repeatedly causing thousands of pounds of damage to doors and windows on the mental health ward. The circumstances made it obvious that she was trying to leave the ward and I asked what section of the Act she was detained under. The nurse told me that she was an informal patient. I remarked that she was obviously trying to leave and the nurse agreed – it became quite obvious that the patient was unlawfully detained in a ward and therefore her damage to escape routes to get out became lawful, because she is entitled to use reasonable force to escape! Well, the ‘Rozzers’ need to think in a similar way with regard to anything involving DoLS.
If and until a DoLS authorisation – urgent or standard – is in place, the person is an autonomous free agent and legally entitled to resist any trespass against their person or property. I was asked by Dr SERIES what I would do and I told the psychiatric / criminal damage story.
WHILST WE’RE HERE
I may as well add a couple of further points on DoLS, although unrelated to the ‘false imprisonment’ discussion. Officers have been called to situations where people subject to DoLS orders have left the care home or hospital concerned and the question arises, can officers take the person back, including when it is against their will and involving the use of reasonable force? The answer to this is undoubtedly, “Yes!” but subject to the general caveats imposed by the Act as a whole. The action taken must be the least restrictive thing, undertaken in that person’s best interests, etc., etc.. Assuming this, actions taken will be defendable because of the general defence of ss5 and 6, but officers will be entitled to rely upon the existence of the DoLS order as evidence of a lack of capacity, that authorisation having been put in place by other, usually more qualified professionals.
Finally, I will touch on the issue of conveyance because I was emailed last week about conveyance after DoLS. A distressing situation in which an elderly adult who lacked capacity to look after herself was being moved, on what would probably end up being a permanent basis, to a residential care home after becoming unable to live alone. She quite simply, refused to move from her home of many decades for reasons we can all fully sympathise with. The professionals involved felt they were left with little option but to ask for police support after the lady became so distressed that she was lashing out and throwing things.
Now – by all means have a debate and express a view whether that is ever a role for the police, I’ve covered all of that elsewhere and I’m not going to repeat it here. All I will say, is that if officers are called upon to support or act, then they must remember the principles of the MCA and act accordingly: once you are satisfied that an urgent or standard authorisation is in place, you may assume a lack of capacity because better qualified professionals have made that decision and then do proportionate things in the least restrictive way, in that person’s best interests and this would include conveyance to another location where the authorisation requires them to be.
But as with everything and as with the ‘false imprisonment’ type scenario to which some may say, “Call the Rozzers!” you accept nothing, believe no-one and check everything before acting. Where DoLS are being referenced in any context, you will want to know whether an urgent or standard authorisation is in place and when it runs out. If time permits to ask for it, you’d want to see it in writing or you’d be noting the name of the professional and the time at which they told you it was in force, with expiry time. Only if you are satisfied that such authorisations are in place, will you consider doing proportionate things, in the least restrictive way, in that person’s best interests. Without DoLS being in place, you have to choose between doing nothing or doing something that is justifiable under other legislative frameworks. For policing purposes, some of these situations mean resorting to section 136 because the definition of mental disorder in Part X of the Mental Health Act is quite broad. What you can’t do when DoLS is not in place, is rely upon sections 5, 6 and 4B.
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