The Very Protective Safeguards
Well, I’m back. I anticipated my blogging break to be akin to a couple of months on the French Riviera but it’s turned out to be more akin to an longish weekend in Camber Sands. And the reason why I’ve been hoisted by my own petard? I blame the Law Commission, who yesterday published their new report on their proposals to replace the Deprivation of Liberty Safeguards.
The full report is here: http://www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty/
This may sound rather overblown and a trifle pretentious but reading the report yesterday brought home again how much Steven and I are embedded in the history of the DoLS legislation. Seven years ago, I didn’t know they existed as it was around this time that Steven was served the first urgent seven day authorisation. But seven years on, I’m now a fully paid up, card carrying member of the DoLS Geek club. Yesterday my Google alert function went into meltdown!
It’s very hard to read the new proposals objectively when you’ve been so badly burned by the previous scheme. So, pardon me for leaving objectivity at the door but this is the Neary Acid Test, first thoughts on the new scheme. My acid test is slightly more cynical than Lady Hale’s. My third eye is always open to searching for the openings that enable the state to manipulate or ignore the new legislation. And from my totally subjective position, I can’t help but repeatedly ask the question as I read, would these new rules have made any difference to Steven back in 2010. That is the lens this post is passing through.
Firstly, there is the name change. The Law Commission are only suggesting the name as their focus is quite rightly on the content. However, at the moment, the new scheme is called the Liberty Protection Safeguards. I’m glad they’ve ditched the “deprivation” as that word seemed to give a green light to some to detain people without thought for a more constructive care plan. But aren’t “Protections” and “Safeguards” the same meaning. It feels rather like wearing two condoms. The report makes repeated reference to the new rules being more Article 8 and CRPD compliant – couldn’t that have been emphasized in the name? But I don’t want to dwell on the name as it may possibly change. I will focus on just a few of the changes:
The new LPS are meant to kick in BEFORE the person moves to the place where the detention will take place. At present, the person can be detained for ages before the process starts with an urgent 7 day authorisation. The intent behind this change is to force good care planning before the need to move someone. It also forces a human rights based agenda to drive the process. Like we pressed for with the LBBill, the State has to make a very strong case from the outset that detention is the most appropriate course of action. This sounds like a very positive move. But I worry about all those cases we heard about during 7 Days of Action, that echoed Steven’s pathway to the ATU – their initial reason for leaving their home was for an agreed period of respite, which quickly turned into something far more sinister. Or the person went to a “holding” place as the care provider pulled out of their package. Would these people fall under the new Safeguards from the beginning? And if they don’t, how long before someone notices and acts on the original intention changing.
In a move to cut costs, the role of the Best Interests Assessor is drastically changing. There will be a new role called the Approved Mental Capacity Professional. At the moment, a BIA is an essential part of the assessment process and can recommend that the DoL isn’t authorised or suggest conditions or recommendations to be added to the DoL. Under the new scheme an AMCP will only be appointed in cases of disagreement about the placement or where the LPS is needed to prevent harm to others. In Steven’s case, Justice Jackson questioned the independence of the Best Interests Assessors but the new scheme may compromise that independence even more. The person making the case for the LPS will already be involved in the person’s care planning. Looking at this through our 2010 lens, I know that Whistler’s Mother would have signed the LPS like a shot and would have breathed a huge sigh of relief at the lack of external scrutiny.
At the point of the LPS being triggered, the person will be appointed a “representative”. More than likely, this will be a family member or carer. So, the detained person will not be totally on their own but most family members will be ignorant of the LPS scheme like I was in 2010 and will need signposting to the rights of the detained person. It puts an awfully huge responsibility on an untrained (in the law) family member to be the main external scrutineer of such a major decision.
Another change that makes me feel very wibbly wobbly is the new role of the “Independent Reviewer”. This will be the person who “signs off” the LPS after checking that it is legally sound and that the detention is “necessary and proportionate”. This could be anyone from the “Responsible Body” who is not directly involved in the care of the detained person. It could be a colleague sitting across the office from the person who has assessed and written the authorisation. This seems to me to be a huge challenge in maintaining independence. Don’t forget, we have got to the final stage of the process – the authorisation of the LPS and only one external pair of eyes may have been involved so far – the representative. It is true that the requirement for an IMCA still stands in the new legislation but we have plenty of evidence at how tricky it is to get an IMCA when the state would rather you didn’t have one.
There seems to me to be a rather big contradiction running throughout the narrative for the new scheme. The report talks a lot about the importance of the person’s rights. It also nods to the CRPD with repeated mention of the person’s wishes and feelings taking priority. This is clearly a very positive move. But then, I wonder if those progressive ideas are diluted by the removal of the “best interests” driver and instead having the replacement, “the necessary and proportionate” rule. I’ve seen a few commentators state that they see little difference between the two but I’m not so sure. Although, there has been many debates over the years as to what “best interests” mean, it still feels a more encompassing, person centred idea than just “necessary and proportionate”. When push comes to shove, it could be argued that something is necessary and proportionate, without being in the person’s best interests at all.
The Law Commission have sat on the fence regarding access to court and are leaving it to the government to decide. They flag up a tribunal, similar to a mental health tribunal, as an alternative to a costly Court of Protection hearing. Throughout the 7 Days of Action campaign, I was shocked to hear the many stories of dudes detained for years and the tribunal system having no effect on their detention whatsoever. I know that if I was faced with the choice between a tribunal and the scrutiny of Justice Peter Jackson, which one I would choose.
The scope of the new scheme is being widened beyond care homes and hospitals to include, amongst others, supported living and the person’s own home. I can’t get my head around that last one at all. As I watch Steven going about his daily business, it never occurs to me whether he is being deprived of his liberty. He does not live in a cage, gilded or otherwise. I cannot begin to compare his life in his own home and his life in the ATU, with its daily prone restraint, over medication & stopping all his external activities for three months. Sure, he will always need 1:1 support in the home, to support him with the stuff he cannot do and to keep him safe from himself when he gets extremely anxious. But that cannot fall under the scope of this legislation surely? Mind, one man’s deprivation of liberty is another man’s sensible care planning.
I do like the idea of the law now covering supported living and wonder if it’s now the time for honest and brave reasons from the Local Authorities for authorising a LPS. Round my way, the people in supported living are in their pyjamas and in their rooms from 6pm to 7am. Will we see an authorisation that states the deprivation is necessary and proportionate because, “we are not willing to fund any additional hours”? I wrote about the recent case of Davey vs Oxfordshire CC who reduced Mr Davey’s support by 40% claiming that time alone would encourage his independence. Will the new LPS put a stop to those shameful tactics or at least force the LA to call a spade, a spade.
If I was a trainer, I would sit the trainees down with a copy of the 2011 Neary judgment and ask them to analyse how the LPS scheme would prevent such things happening again. Would the “elephant in the room” of Steven’s real deprivation of liberty being kept away from his home have been revealed sooner? Would the LPS assessments have been more diligent, more fair and scrutinised better than 2010? Would Steven have received the necessary advocacy? Would he have got to court, and therefore, home sooner?
I have to say, I’m not confident of the answer to any of those questions being “Yes”.
But I’m hopeful.