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More evidence of local authorities' disappointing application of the Deprivation of Liberty Safeguards

Care Quality Commission report and Essex County Council and RF & Others

Posted on 05 February 2015

The Care Quality Commission (CQC), the independent regulator of health and social care services in England, has recently published its 2013-2014 report on the Deprivation of Liberty Safeguards (DOLS) regime. The aim of the safeguards is to protect individuals who do not have capacity to make decisions about their living arrangements by ‘authorising’ their deprivation of liberty if the arrangements are shown to be in that person’s best interests.

The CQC report highlights depressing regional variations in the rates of local authority applications to have deprivations of liberty authorised, and wide discrepancies in practice and training. The report also found that just 37% of providers are notifying the CQC when they apply to authorise a deprivation of liberty, as required by the CQC Regulations 2009.

A further area of concern highlighted by the CQC is the role of Independent Mental Capacity Advocates (IMCAs) in challenging DOL authorisations. An IMCA must be offered to the person deprived of their liberty if they, or the local authority, feel they need support to exercise their right to challenge an authorisation that has already been granted. However, the CQC reported that some local authorities are regularly not instructing IMCAs where there is disagreement, and found that a third of all local authorities had not made one IMCA referral all year.

The CQC also found other common and, in our experience, familiar, failings, including: inadequate or absent capacity assessments, failure to follow the best interests decision making process, lack of consultation with P and their family, unlawful restraint and unauthorised deprivation of liberty, and lack of training.

This depressing report follows shortly after the Court of Protection judgment in Essex County Council and RF & Others where the deprivation of liberty safeguards were arguably misused, and then ignored, by the local authority. This sad and distressing case involved the unlawful detention of CP, a 91 year old gentleman with dementia, who was held in a dementia care unit in Essex for 17 months.

DJ Mort aptly summarised this appalling case of Essex County Council’s (ECC) complete disregard of the Mental Capacity Act and deprivation of liberty safeguards, stating:

“it is hard to imagine a more depressing and inexcusable state of affairs. A defenceless 91 year old gentleman in the final years of his life was removed from his home of 50 years and detained in a locked dementia unit against his wishes. Had it not been for the alarm raised by his friend RF he may have been condemned to remain there for the remainder of his days.”

The background to this case is as follows:

CP had lived in his own home for around 50 years.  He was removed from his home by ECC in May 2013 following a safeguarding alert arising from CP’s alleged vulnerability to financial exploitation. The circumstances of his removal are particularly disturbing; it is alleged that the social worker told CP they were going to take him to a hotel and, when he declined, said she would call the police. The Court also heard that a social worker took CP from his home wearing just his dressing gown. CP was very reluctant to leave his home and was very distressed.

ECC did not authorise CP’s deprivation of liberty until some months after his removal, and – somewhat questionably – the authorisation contained restrictions about CP’s contact with his friends and attendance at Church. Further, and reprehensibly, it was by no means clear that CP lacked the capacity to make decisions about his residence; an agency employee concluded he did have capacity, but an ECC social worker, just two days later, concluded he did not. An independent best interests assessor stated two weeks later that CP did have capacity and should be allowed home.

There followed a period of approximately nine months where CP was unlawfully detained in the dementia unit. Even in July 2014, a best interests assessor was recommending that it was in his best interests to be returned home. Throughout the whole period of CP’s placement, he expressed a consistent wish to return home but despite this, the assessments concluding CP did have capacity and the recommendations from the best interests assessor, ECC kept him detained against his wishes for over 17 months.

The Supreme Court, in their landmark judgment in Cheshire West, ruled that arrangements where an individual is subject to constant supervision and control and is not free to leave, amount to a deprivation of liberty, and must be authorised by the DOLS or the Court of Protection. Although ECC removed CP from his home prior Cheshire West it was nonetheless strikingly obvious that CP was deprived of his liberty and that this should have been authorised.

In fact, ECC had no authority to remove CP from his home and place him in a locked dementia unit; they did not authorise CP’s deprivation of liberty until some months after CP’s removal and, in any event, this expired in October 2013. CP was therefore deprived of his liberty with no authorisation in place for a period of 13 months.  The Court indicated that even if the local authority had authorised CP’s deprivation of liberty during this time, where there are significant welfare issues in dispute (as there was in this case), the matter should be placed in front of the Court of Protection for authorisation in any event.

It was not in fact ECC, or an IMCA, who brought CP’s deprivation of liberty issue to the Court’s attention, but CP’s close friend, RF. Perhaps this is not surprising given the well reported regional variations in local authorities’ application of the DOLS regime and referrals to IMCAs.

An independent nurse provided evidence to the Court of Protection recommending that CP be returned home with a 24 hour care package in place to address his needs. All of CP’s friends at his Church agreed it would be in CP’s best interests to return to his home with a package of care. On the evening of the final day of the hearing, ECC finally conceded that it would be in CP’s best interests to be returned home permanently.

The Court, of course, agreed and found that ECC had failed on a number of grounds, namely: to heed the presumption in favour of CP’s capacity; to adopt the least restrictive course of action; to have regard to independent evidence of CP’s capacity; to take into account his consistently expressed wish to return home; to appoint an IMCA for him; and to refer the matter to the Court. DJ Mort said he was deeply troubled by CP’s removal from his home, and by the fact that no consideration was given to the less restrictive option of supporting CP at home. He concluded by stating that “In my judgment the conduct of ECC has been reprehensible.”  

The Court approved a damages settlement on CP’s behalf of £60,000 for his unlawful detention, the care home fees (£23,000 to £25,000) and his legal costs.

CP has now been reunited with his cat, Fluffy, at home, and is supported by a full care package.
This sad case reinforces the need for specialist legal advice as possible if an individual, who does not have capacity to consent, is deprived of their liberty and this has not been authorised through the Deprivation of Liberty Safeguards or by the Court of Protection. A solicitor in Leigh Day’s Court of Protection team can advise on what legal action should be taken and how to fund it, including advising on whether public funding is available.

(Leigh Day acted for the AIRE Centre in their intervention in the Supreme Court in the Cheshire West case.)