This week, I was notified that our LA are currently expanding their DoL catchment beyond people in Care homes, hospitals and ATUs and are now assessing people who may be deprived of their liberty in their own, or family home. Steven can expect his assessment shortly. I have been told, on good authority (Thank you Flight Lieutenant) that anyone deprived of their liberty in the community, without their consent and where the State is involved in their care, must seek court authorisation for the deprivation.
As regular readers will know I’m a big fan of the principles of the Deprivation of Liberty Safeguards because, if applied correctly, they go a long way to enforcing a very vulnerable person’s human rights. I’m still convinced that in our case, DoLs saved Steven’s life and without them, he would be living in that hospital in Wales. But I’m very confused, how it all gets applied to Steven’s current situation.
Firstly, Steven is living in his own home. He’s not living in the family home – he is the tenant. As far as the State is concerted, I am not family, as Steven is over 18. On all the official documentation (care plan, tenancy agreement) I am classified as “a live in carer”. So, with the DoLs assessment there should be no confusion about the status of Steven’s living arrangement. His care plan states that he needs 24/7 care, so when I’m not around, one of the support team takes on the mantle of live in carer. Would the fact that someone is around 24/7 amount to a deprivation of liberty? Or just good care? Or both?
Next Factor, and applying Lady Hale’s acid test – is Steven free to leave his home and would he be stopped if he tried to do so? The care plan states that Steven needs 2:1 support when he is out of the house. Once again, this could just be considered sensible care. If he has a meltdown whilst out, he could put himself and others at risk. The extra support is designed to minimise that risk. But does the fact he needs 2 people take us into DoLs territory? Would Steven be stopped if he tried to leave is not straightforward. In his reality, its almost hypothetical. Apart from his several escapes when he was in the ATU, the last time Steven took himself out of his home was in 2007. He’d spotted Geoff, a neighbour across the road, practising his golf swings in his front garden and went out to chat to him. I didn’t stop him going but I went with him. In that moment, was I depriving him of his liberty? So, it hasn’t happened for eight years but if it did, the same thing would happen. Nowadays, Steven announces what he wants to do – “Want to go and see Uncle Wayne”, ” Want to go to Ranjit’s sweet shop”. He wouldn’t try to go on his own. And there has never been any idea of Steven “escaping” from his own home. He’s not trying to “get away” but asking to go somewhere.
Are there any other potential deprivations within Steven’s own home? Given his day to day reality, on one level, it feels almost nonsensical to be considering this. Within the home, he come and goes as he pleases. I can’t think of a time when someone might say, “you can’t do that”. He is as autonomous as you and I. If he is agitated or having a meltdown, someone might follow him to the next room but that is to preserve the environment. A couple of months back, during a meltdown, Steven went into the kitchen and threw a bowl at the oven door, smashing it to smithereens. It cost him a fair bit to have the door replaced. So, during a meltdown, is that a deprivation or astute care? Or both? The only other examples I can think of are teeth cleaning, which Steven has never got the hang of, so a support worker will clean his teeth for him. I don’t think his dentist would be very happy if we didn’t do that. And arse wiping. But that’s just about hygiene surely. Going to the toilet, getting dressed, eating his meals are all done independently and nobody would dream of intruding. When a support worker is with Steven during a music session, he is engaging with him but if Steven asked for music on his own, then the support worker would leave him to it.
I was notified that the first step would be the mental capacity assessment. Now I know that the assessment has to de decision specific – has the person got the capacity to decide/consent to……..? So, in Steven’s current situation, what is the decision? What is he being tested on? I guess, a professional will decide where he/she thinks Steven is being deprived and will focus the capacity assessment on that. Does Steven have the capacity to decide he needs 2:1 support when he is out and about? Does he understand why it is necessary? Can he weigh up the pros and cons of the decision? Steven is so used to things being that way, I think he’d get confused by the assessment. Any probing or suggestion that it might be any other way is guaranteed to raise his anxiety. My big fear is that the mental capacity assessment triggers off his trauma from 2010, which is just under the surface at the best of times. His experiences of capacity assessments were all from 2010 and always left him distraught because he was stating quite clearly he wanted to live in his own home but was getting the clear message that he wasn’t allowed to. He is settled now in his own home. I don’t want him to start doubting his own security as a result of a clumsy assessment.
Once the mental capacity assessment is out of the way, then presumably the professionals will consider whether any deprivation of his liberty they discover is in Steven’s best interests. Given that the professionals wrote his care plan then they must surely agree that it is in his best interests.
And finally they will apply to the Court to authorise whatever deprivation they find. I have no idea how much that will cost but it won’t be cheap. In fact, the whole process of meetings, best interests assessors, volumes of paperwork will cost a pretty penny. And for what?
I’ve written before about the DoLs industry. It is vital that the human rights of a vulnerable person are upheld. It is vital that a vulnerable person is not unlawfully deprived of their liberty. But the DoLs scheme seems to be in such a pickle now. The scheme has come a long way since HL & the Bournwood case and is danger of disappearing up its own arse. I’m not sure that when the LA begin this latest DoLs process, it will really be Steven that will be at the heart of that process. I’m not convinced that so much effort and time and money will go into the pure motive of preserving Steven’s liberty. That strikes me as a bit of a shame.