6 months of a new ‘Deprivation of Liberty’: March – August 2014

Posted on: August 11th, 2014 by Jess Flanagan

I’ve written a lot on my team’s blog about the game changing Supreme Court judgment of what is known to all of us Court of Protection ‘geeks’ as ‘Cheshire West.’

I have been pretty silent on this blog, as my energies went on ensuring that our Clarke Willmott blog readers were kept up to date. Today, I have had the honour of having my piece hosted on the Family Law website, and thought I would take this opportunity to summarise my pieces over the past 6 months following the judgment in March. More for me to have a record of it all than for anything else. It has been an exiting, and increasingly busy 6 months and there is no certainty as to how it is all going to pan out.

I speak almost daily to IMCAs and RPRs who have seen referrals increase unspeakably; to Local Authority lawyers who are wondering how they are best to advise their client Adult Services departments to deal with backlogs of assessments for Standard Authorisations; and to care home managers who are just about realising the implications of it all (and hearing about others who still haven’t got a clue!. The press is now starting to get wind of the real cost involved and with the Supreme Court judgment resulting in most adults who lack capacity to consent to their care arrangements requiring their placements to be authorised, and it being abundantly clear that any deprivation of liberty in a supported living or independent placement which is paid for, or arranged by the state in some ‘non negligible’ way, must be authorised, this simple change in legal test has some really good but really frightening implications for Adult Services in England & Wales.

My colleague Joanna Burton introduced the judgment in her summary piece in March and following a flippant comment I made on twitter resulted in Simon Burrows from Kings Chambers coming along to our Bristol office in April to set out the initial implications of the judgment to a full house of health and social care professionals, private client lawyers, RPRs and IMCAs. I set out my review of that talk in another piece on the Clarke Willmott blog.

Two months after the judgment I was invariably talking a lot more about DOLS and what the statutory safeguards were there for. I was spending (and still do spend) a lot of time reminding care home staff, the individual who is deprived of their liberty and their families that a Standard Authorisation is NOT a DOLS Order and it is not something that can be ‘lifted’. It is a tough thing to explain to someone who feels detained, and to all intents and purposes is detained, but is actually deprived of their liberty because of the arrangements required to keep them safe. So I wrote about DOLS being safeguards, not imprisonment in order to try and spread the word…

Those first three months were so exciting that DOLS was the feature of our second edition of the Court of Protection and Health & Social Care Newsletter and there is a summary of what the House of Lords Committee’s report on the Mental Capacity Act 2005 in there somewhere.

I haven’t blogged about the Government’s response to the House of Lord’s Select Committee report because it was really quite sad. I think the most important thing for us to take away from it is that the statutory scheme isn’t going to change any time soon, and non means tested legal aid (that P is eligible for when challenging a Standard Authorisation in the Court of Protection)is not going to be available when P requires representation in the Court of Protection when authorisation is being sought for Deprivation of Liberty in supported, or independent living environments. I blogged about what I might like to ask the Government as a result. The story behind this was a senior partner in my firm was invited to an audience with the Minister of Courts and Legal Aid and asked if I had any questions. I did and I set this out for him to take with him. The minister cancelled. Perhaps he knew he was likely to face some really tricky questions…

So, this brings me nicely on to Thursday’s judgment and my piece published on Family Law today. Sir James Munby has produced guidance for Local Authorities to follow when making applications to the Court of Protection to authorise a DOL in placements other than care homes and hospitals. He will deal with other issues and provide more detail in due course, but this is a start.

Happy reading.

I am keeping a close eye on how all of this pans out in reality and especially in respect of how local advocates cope with the pressure and how the safeguards really do safeguard people, not imprison. So, if anyone has any experiences they want to share, please don’t hesitate to get in touch to chat it through.

One response to “6 months of a new ‘Deprivation of Liberty’: March – August 2014”

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