End of life care and the Deprivation of Liberty Safeguards (DoLS)

Posted on: December 17th, 2014 by Jess Flanagan

Regular readers of this blog will know that I have written extensively about recent developments concerning DoLS: the Safeguards which protect individuals detained in a care home or hospital for the purpose of giving them care and treatment, but who lack the capacity to consent to that treatment or detention. The Mental Capacity Act 2005 provides a legal framework to deal with authorising any deprivation of liberty that arises in these circumstances to ensure that it is lawful and in March 2014, the Supreme Court clarified that an individual without capacity is deprived of their liberty in circumstances where they are under the ‘continuous supervision and control [of their carers] and are not free to leave.’

Death in DoLS – Chief Coroner’s Guidance

There has been an unprecedented increase in the number of individuals whose detention falls within that definition of ‘deprivation of liberty’, so it is understandable that more departments are supporting someone subject to a DoLS authorisation and require guidance about the services they provide.
On Friday 5 December 2014 I attended (and spoke at) the Legal Action Group Community Care Conference 2014. One of the issues discussed was what happens when someone dies while they are the subject of a DoLS authorisation. How and when should inquests be undertaken in those circumstances and in addition, how will the DoLS be used in a hospice environment.
On the same day, and as if to answer some of the questions posed at the conference, the Chief Coroner published ‘Guidance No. 16: Deprivation of Liberty Safeguards (DoLS).’ Found here (link to guidance – http://www.judiciary.gov.uk/related-offices-and-bodies/office-chief-coroner/guidance-law-sheets/coroners-guidance/)
The Guidance sets out the basic principles and the processes involved in authorising a DoL, but importantly, it clarifies that coroners are not there to determine the validity of a DoLS authorisation (paragraph 33). There was already a statutory requirement for a coroner to commence an investigation into a person’s death (s1(2)(c) The Coroners and Justice Act 2009 ‘CJA09’) where the coroner has reason to suspect that ‘the deceased died while in custody or otherwise in state detention’, but it has been necessary for the Chief Coroner to provide some guidance for coroners in deciding whether there should be an investigation into the death of a person subject to a DoL.
If a person dies in state detention then the coroner must hold an inquest and this will quite naturally result in an increase in workload and cost within the system.

‘In state detention’

As explained above, a coroner must commence an investigation into a person’s death where the person died in state detention. This is defined in s48(2) CJA09, which states: ‘A person is in state detention if he or she is compulsorily detained by a public authority within the meaning of section 6 of the Human Rights Act 1998’. On one analysis, this means that DoLS fall squarely into the definition of ‘state detention’ and as such, should be investigated by the Coroner.
The Chief Coroner agrees and his rationale for adopting that view appears to affirm Lady Hale’s insistence (in the leading judgment in the Supreme Court) that it doesn’t matter how comfortable the individual may be, and how accepting of their care arrangements, they are deprived of their liberty by the state; ‘a gilded cage is still a cage’ and those without capacity should have the same access to human rights as those with.
Although this approach might bring additional expense and workload, until such time that the High Court deals with this issue, or there is further legislation, the guidance from the Chief Coroner is clear:

54. …In short once the relevant conditions are satisfied, the person is detained by operation of the law. This appears to be consistent with ‘compulsorily detained’ in s48(2) of the 2009 Act.

55. This view suggests that those subject to DoLS are subject in plain language to the restrictions of state detention. They are detained compulsorily under the statutory framework of the state. There should therefore be a coroner’s investigation (including inquest: section 6) in all cases.

What type of investigation?

With an increase in the use of DoLS in care home and hospitals, I wonder whether the deaths of those individuals are more likely to be investigated by a coroner? Where the answer is yes, the format that the investigation might take is important.

Although all deaths in DoLS will lead to an inquest, the guidance suggests that most deaths in DoLS will be investigated by a coroner on the papers (paragraph 71) and only those who die in circumstances that are ‘controversial’ might benefit from an inquest with witnesses and submissions.

Only the deaths that are violent or unnatural, or where the cause of death is unknown, will be the subject of a jury inquest.

On Article 2 (right to life) inquests the guidance is brief, but says that the procedural duty to carry out such an inquest would arguably arise where the death is not from natural causes, or if the DoLS detention may be a relevant factor in the cause of death (paragraphs 61-63.)

Some of the people who had been deprived of their liberty under DoLS in care homes or mental health hospitals may not have died if they had been in their own homes. After months of fighting, the family of Connor Sparrowhawk have won the right to an Article 2 inquest into his death in detention under the Mental Health Act 2983 (see this article for more information). His death was quite clearly not a natural death, but a lot of effort had to be put into winning an Article 2 inquest.

Many deaths in homes or hospitals cannot be viewed as ‘natural.’ Some deaths may appear to be natural, but are actually the result of a failure by the state to take measures within the scope of its powers to avoid a death where they knew or ought to have known that there was a real or immediate risk to the life of the deceased. (See paragraph 61 and Osman v UK [1998] 29 EHRR.) As the volume of cases is inevitably set to increase, who will spot these deaths?

In an article in Inquest Law in September 2014, two lawyers argue that where a death by natural causes occurs in a place of state detention, an Article 2 compliant jury inquest should be held in any event. Their argument is predicated on the fact that by the nature of their illnesses, individuals in these environments may not be able to effectively communicate their needs to their carers and will be dependent on their carers to identify and respond to those needs, which may, they argue, lead to a death which is attributable to the failure of the state to respond to those needs.

The Chief Coroner has not adopted that approach in his guidance. He suggests that in many cases there will be no arguable breach of the state’s general duty to protect life and doesn’t set out any detailed guidance for dealing with such incidents.

The decision of Cheshire West has already led to an increase in paperwork for Local Authorities, health authorities, the Court of Protection and now for coroners. If these organisations become so overwhelmed with paperwork, will they notice the cases that need proper scrutiny and that a paper review cannot support? Further, won’t all of these paper reviews divert necessary resources from those cases that really do go wrong and would benefit from the detailed, independent scrutiny of a jury?

DoLS in hospices

The nature of the service provided in hospices means that the instances of deaths will be huge, increasing further the impact on the work of a coroner.

Why might this be an issue? When would someone receiving end of life care need to be made subject of a DoLS authorisation?

On a strict application of the MCA 2005, and by analogy to the Court of Protection’s treatment of individuals with Persistent Vegetative State and Minimally Conscious State in relation to incapacity, when an individual is unconscious there is arguably an impairment or disturbance of the functioning of the mind or brain (s2 MCA 2005). The diagnostic test is fulfilled and when looking at the functional test, this is fulfilled because the patient is unconscious andthey are unable to communicate a decision about where they want to live and receive care. It is likely that the care they are receiving and the environment they are receiving it in, is overwhelmingly in their best interests, necessary and proportionate and as such, meets the key requirements for a DoL needing authorisation.. My analysis of this is, I think, shared by Alex Ruck Keene who has also been writing a lot on this topic recently.

Since there is often limited state involvement in the care provided in a hospice, will a DoL be attributable to the state and require authorisation?

Current legislation ensures that a private entity, if carrying out functions of the state (ie providing care funded by the state), will be caught by the DoLS and will need to obtain authorisation for any deprivation of liberty. Section 64(6) of the MCA 2005 confirms that it does not matter whether a person is deprived of their liberty by a public authority or not for the scheme to apply. It is therefore safer for a hospice as Managing Authority to ensure that the detention is authorised.

Concerns have been raised by individuals working with families in hospices as they really do not want to be troubled by Best Interests Assessors and DOLS documentation at a time when they want to be spending time with dying family members. This is an incredibly pertinent point. There is also an argument that Parliament could not have intended these people to be afforded the protection of the DoLS, and that it is burdensome and an overextension of the scheme to expect it to. Others remind us that to exclude incapacitated adults in hospices would be completely contrary to the concerns that Lady Hale seeks to address in her judgment in Cheshire West. It is an incredibly difficult balance to get right.

One suggestion was that if a patient goes into a hospice by choice (which is usually the case), they could sign a form to confirm that they give their consent and this might somehow avoid the later implication of a DoLS authorisation once capacity has been lost. I have concerns with that on a legal basis, as capacity is time and decision specific. There is currently no legal mechanism that I am aware of where a DoLS authorisation can be opted out of. It is a framework to authorise existing restrictions on liberty which amount to a DoL, and there is no ‘Advance Decision’ alternative to deal with this.

Is this another issue that might require legislation? Perhaps the Law Commission will look at this as a separate aspect of their review of the legislation?

The Supreme Court decision has already led to an escalation of assessments and increased pressure on already depleted resources in Local Authorities and courts. Without a solution to DoLS in hospices this could be set to rise even higher and into new areas of public work, but it doesn’t always make sense to insist on the use of a framework which is there to support and protect the human rights of those who are living, for those who have gone to a peaceful and calm place to die. Does this mean picking and choosing when fundamental human rights should apply, and to whom? A tricky balance to achieve.

Chambers & Partners

Posted on: October 31st, 2014 by Jess Flanagan

As this blog is often updated when I have something exciting to record, today is a day to post!

The 2015 Chambers & Partners guides were published today and our Court of Protection team was ranked, with myself and Anthony Fairweather (my excellent boss and deputy to a LOT of vulnerable adults) mentioned as notable individuals with an unknown client saying that:

“She provides patient guidance in complex and convoluted cases and processes, and communicates effectively with clients who often have significant physical and emotional difficulties.”

Listed amongst some really excellent and established firms and practitioners, the team, Anthony and I really were pretty chuffed to be there. Thanks to everyone who supported us over the past year and here’s to continuing to build!

See here for the full listing.

Autonomy and the empowerment of the individual

Posted on: October 14th, 2014 by Jess Flanagan

This is a blog by my colleague, Joanna Burton, all about our Mental Capacity Conference on Friday 17 October at Clarke Willmott.

I am really looking forward to this event, and it marks a real step forward for our team as being experts in welfare cases in the Court of Protection. I have always been keen on sharing information and educating those who need to be aware of the Mental Capacity Act, and this event takes it one step further as we have leading experts in the world of capacity talking to us about how far we have come in the 7 years since it came into force.

Over to Jo….

On 17 October 2014 Clarke Willmott is hosting a one day conference ‘The Mental Capacity Act 2005: Promoting Autonomy and Empowerment’. Ahead of the conference Joanna Burton looks at the way legislation has evolved over the past forty years, placing individuals at the centre of the procedures that affect them.

Empowerment of the vulnerable individual lies at the heart of our work, whether that individual has capacity or is unable to make decisions relevant to his or her welfare, and whether we are acting on behalf of the vulnerable person, or for a family member, friend, carer or advocate. Professor Hugh Rickards will talk to us about his clinical experience of assessing capacity at the conference.

Over the last twenty five years there has been a gradual but consistent development in health and social welfare legislation putting empowerment of the individual at its core. The Children Act 1989 was, perhaps, the first step in this process, making the ‘welfare of the child paramount’; it is the right of the child to have contact with both parents not the right of the parents to have contact with their child.

The protection of human rights has been an important development and since the European Convention on Human Rights became enshrined into the law of England and Wales, Scotland and Northern Ireland in 1998, all individuals in the United Kingdom have their rights under that convention protected.

Under Article 8 the individual is protected from arbitrary or unnecessary interference from the state in his or her private and family life, and it can also provide leverage upon the state to provide services to ensure that P’s rights under Article 8 are not breached.

In the recent case of P (Appellant) v Cheshire West and Chester and another and P and Q v Surrey County Council [2014] UKSC 19 Lady Hale spoke of the ‘universal character’ of human rights and underlined that ‘people with disabilities have the same human rights as the rest of the human race’ She spoke further of the State’s ‘duty to make reasonable accommodation to cater for the special needs of those with disabilities’. Simon Burrows will be talking about this case, and its implications six months on.

Throughout the 1990s various pieces of anti-discriminatory legislation were passed, culminating in the Equality Act 2010. At the core of the Equality Act 2010 is the individual’s right to be treated equally and have equal opportunities irrespective of age, gender, disability, race, colour, creed or sexual orientation. Obligations lie with the employer, or the provider of services and ultimately the state to ensure that the principle is respected and acted upon.

In October 2007 the Mental Capacity Act 2005 came into force. Fundamentally the MCA provides the legislative framework to ensure that an individual who lacks capacity to make decisions is treated with the same autonomy and respect given to adults with capacity. Any actions or decisions made on behalf of P must be in P’s best interests. The Act promotes and, in certain circumstances, makes it a duty for an Independent Mental Capacity Advocate, an IMCA, to be appointed to be the voice of P. I would like to see an IMCA appointed for P when any major decision is being made, irrespective of whether other family members are willing to speak on P’s behalf. In my view an IMCA is the acknowledgement of the autonomy of P and should be a fundamental part of P’s armoury. Jakki Cowley and Sue Lee from ‘Empowerment Matters’ will be talking about their work as IMCA’s and their important research which has recently led to the publication of their ‘Guidance for Assessing Supporting and Empowering Specific Decision making’.

The Court has been at the forefront of empowering P. Jurisprudence has set the bar low for assessing capacity. Our key-note speaker, Mr Justice Baker has discussed (in CC and KK and STCC [2012] EWCOP 2136) maximising the entitlement of the individual to make his or her own decisions, however unwise they may be. Best interest decisions made by the court have tended to resist the risk averse decisions that might be made by a local authority and have enabled P to go on holiday or return home when risks may appear to others to be quite high; the case of Manuela Sykes which I discussed in May is a prime example. Mr Justice Bakerwill be our key note speaker at the conference on 17 October 2014 giving his thoughts on cases that have been before him recently.

The Court of Protection rules and procedures also place P at the centre of the case, requiring that P is served with any application to the court and that those interested in his or her welfare are also notified. In my view, however, it is an anomaly that P does not have to be joined as a party to Court of Protection proceedings. P is almost always joined in ss15,16 and s21A MCA 2005 health and welfare and deprivation of liberty proceedings, so for P to have potentially no part in proceedings where life changing decisions are being made for them, or where their liberty is at stake, this is in my view a breach of Article 5(4), Article 6 and potentially Article 8. It is our understanding that clarity on this issue is being sought as permission has been requested to appeal Sir James Munby’s recent decision in Re X and others (deprivation of liberty) [2014] EWCOP25 that P may not have to be joined in deprivation of liberty proceedings that do not fall under s21A MCA 2005. Watch this space.

Although I fully acknowledge the logistical and financial difficulties in P’s participation and representation in proceedings, in my view it is P’s fundamental right under Article 6 and rather than being brushed over, this needs to be addressed. If P lacks the capacity to litigate (and most P’s in Court of Protection proceedings do) he or she will need a litigation friend. There is a real shortage of people willing to act as litigation friend to P and the pressure on the Official Solicitor (OS) as litigation friend of last resort is overwhelming. Clarke Willmott has been in the forefront of encouraging and supporting advocates and RPRs to be litigation friends to P Sophia Roper from the Office of the OS will be speaking at our conference and we will no doubt cover this problem in discussions. Perhaps, as with the Court of Protection Panel Deputies, the court could consider setting up a panel of Litigation Friends.

The financial issue of P’s participation in the proceedings must also be considered. Court of Protection proceedings are very costly and few fall below £10,000 by their conclusion. Non means tested legal aid is only available to P in s21A MCA proceedings which challenge a DOLS Standard authorisation. Legal Aid for all other proceedings is means tested. We often act for individuals who have savings of less than £15,000, but more than the £8,000 legal aid limit. Until their savings have been whittled down in legal costs to below £8,000 we cannot apply for legal aid, and that is without taking into account a capital contribution they will have to pay if they have savings of more than £3,000. Non means tested legal aid is available for a child in child care proceedings, and we feel quite strongly that it should be available for P who lacks the capacity to litigate so that they can be properly legally represented in all proceedings concerning their life and liberty in the Court of Protection.

The Care Act 2014 comes into force in April 2015, placing “wellbeing” at its core and setting out that a local authority must have regard to “…the importance of beginning with the assumption that the individual is best placed to judge the individual’s wellbeing”. In the words of Martin Luther King ‘ It may be true that the law cannot change the heart but it can restrain the heartless. It may be true that the law cannot make a man love me but it can keep him from lynching me and I think that is pretty important, also’.

Laws and jurisprudence may not on their own change hearts but they can change practice. To properly empower our most vulnerable individuals we need to use all the resources available. Notwithstanding the austerity measures the legislation and our courts are clear that the rights of the individual are at the core of any process.

From ‘me’ to ‘team’ in 18 months!

Posted on: September 15th, 2014 by Jess Flanagan

Everyone I speak to in our world thought they might have a quieter summer. But in an area of law that was already gaining momentum, and the inevitable increase in workload for Adult Social Care following the Supreme Court decision of Cheshire West (see previous posts for more info), a quiet summer is not what we got! I am glad my holiday isn’t until November, because I simply don’t think I could have stopped for one this summer!

See this article on Community Care’s online magazine for a round up of what different roles within the ‘industry’ are tackling at the moment, with some comments from me.

There was some concern shared on twitter about the disparity of focus on the person in the comments made by those in public services, by comparison to what was said by the IMCA (Independent Mental Capacity Advocate), the carers and me. This further piece shows that there really are some awesome MCA leads out there and these people should be encouraged to share their best practice further afield.

I particularly like this comment : ‘I passionately believe that one of the biggest boons of a Dols authorisation is the right to support from an IMCA.’

I have always had a HUGE soft spot for advocates and believe that everyone who has to face the consequences of a Local Authority decision, however person centred, supportive and positive it may be should benefit from one. Ian is right in saying that one happy result of Cheshire West is to increase the amount of people with a statutory right to an IMCA.

In the South West we have established a small working group of advocates, private practice lawyers and local authority lawyers with a focus on sharing experiences, difficulties and ideas in P being involved in court proceedings about him or her, with a view to creating a model for accessing litigation friends (be it the Official Solicitor or IMCAs) and lawyers in a more streamlined manner. It means I get to hear a lot more about what is happening on the ground, which is one of my favourite topics!

I think I’m right in saying that the impact of ‘Cheshire West’ still hasn’t been keenly felt by us lawyers in private practice, other than to increase the amount t we read, provide training and share information where possible. We were all pretty busy already moving into year 7 of the life of the MCA. But for Local Authority lawyers, I know that their advice has been very much sought after by their Adult Services departments as they work out how best to approach the increase in DoLS authorisations and the large amount of applications that will be required for court authorised deprivations of liberty.

So, I’m under no illusion that the onslaught is coming. From speaking to my peers, we would all be very keen for the patient about whom an application in The Court of Protection is all about (‘P’) to be involved in any proceedings and as a lawyer who thrives on acting for P I’m hoping to get even busier, because it will mean that P will have a legal voice. As such I was glad to hear that an appeal to Sir James’ decision that P need not be joined as a party to DOL applications. Watch this space.

So, how am I going to deal with the extra work? Well, I have a great team forming around me. With Joanna Burton joining me in Southampton in February it quickly became clear that we needed extra support. That support has come in the form of a very talented young paralegal who has come to support us and to help us develop and increase the amount of people we can help. It’s very exciting.

I was also really pleased to see Clarke Willmott amongst a set of amazing organisations and law firms that provide advice for persons with disabilities and special educational needs. Thanks to my social media friend (who I owe some comments about the #LBBill – it’s coming, honest) Steve Broach for including us. With a larger team, our Community Care Contract with the Legal Aid Agency, we are prepared for whatever comes to us.

On a final note, I am personally really looking forward to our first Mental Capacity Act conference all about empowerment and promotion of autonomy for those who may lack capacity, held in our Bristol office on 17 October 2014. The invite has been circulated to our lists, and we have 45 people booked on already. If you are interested, please visit our website for further information and to get yourself an invite.

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.