Here is a brief history of the Deprivation of Liberty Safeguards (DoLS) in four stages, with some speculation of what Stage Five might be like:
Harry, an autistic man was held in the Bournwood psychiatric hospital. He was chained by his ankle to a pole which resulted in his feet turning black. The UK courts decided that this didn’t amount to a deprivation of Harry’s liberty. His foster family took the case to the European Court (stay calm Brexiteers) who overturned the ruling. The European Court’s decision led to the introduction of the Deprivation of Liberty Safeguards in 2009.
Two years later in 2011, the High Court was asked to rule on the case of Neary vs Hillingdon, after Steven had been in held in an assessment and treatment unit for 359 days during 2010 under four consecutive DoLS authorisations. The judge ruled that all four DoLS had been unlawful and that the real deprivation of liberty had been the LA’s refusal to allow Steven to return home. Justice Peter Jackson also made this observation:
“Using the DoLS scheme as a means of it (the LA) getting it’s own way turns the spirit of the Mental Capacity Act on its head, with a code designed to protect the liberty of vulnerable people being used instead as an instrument of confinement”.
In just two years, the Safeguards were already being manipulated against the people they were designed to protect.
In 2014, the Supreme Court heard the appeal in two DoLs cases – P vs Cheshire West & P&Q vs Surrey County Council.
The appeal led to two very significant changes to the DoLs scheme. Up until Cheshire West, the DoLS scheme had only covered people detained in care homes and hospitals. The new ruling extended the law to cover people in supported living and people living in their own or their family home.
The hearing also introduced the “Acid Test” which was meant to simplify the definition of a deprivation of liberty. Now, anyone is deemed as being deprived of their liberty if, (1) They are not free to leave, and, (2) are under constant supervision.
The Acid Test extended the scope of DoLS considerably and whereas a DoLS in a care home or hospital could be authorised internally through the supervisory body, a supported living or Community DoLS has to be authorised through the court.
Steven Neary (see Stage Two) has had his first Community DoLS and it has been decided that he is being deprived of his liberty in his own home. To quote, “his care and support (1:1 in the home, 2:1 outside) amounts to a deprivation of his liberty”. The fact that he needs a support worker to accompany him when he takes some cake across the road to his uncle is now reframed from the support worker’s prescence enabling Steven’s liberty to depriving him of it. This is likely to be the case across the country for every learning disabled person who needs support to live their life.
Furthermore, the Community DoLS decision is further entrenched as Steven (and others) will be judged as lacking the capacity to consent to their care arrangements.
Where will the DoLS go from here? As we have seen, from a very early stage in their history the DoLS have been manipulated to pursue or conceal another agenda. This is normal practice around most social care legislation.
A warning bell was rang earlier this year in the Davey vs Oxfordshire CC case. Although not a DoLS case, Oxfordshire cut Mr Davey’s care package by over 1/3rd under the guise that having support workers in his home curtailed his independence. It conveniently ignored the reality that, without the support, Mr Davey became independently trapped in his home.
It seems to me that an unscrupulous LA may follow this line and use the DoLs legislation to enable their plans. Under the DoLS scheme, the LA must ensure that whatever care is in place, it is the “least restrictive option”. One can imagine a self serving LA in Steven’s case arguing that as the prescence of support workers is seen under the acid test as a deprivation of his liberty, a lesser restrictive option would be to not have them there at all. The outcome would be in reality, less support & less liberty but that wouldn’t matter if the concealed agenda was cutting care costs.
Most LAs are now primarily self serving. A couple of years ago, GE (Harry’s foster father from the Bournwood case) said to me, “DoLS were meant to be about getting people out; now they’re about keeping people in”. I would suggest we’ve descended further into the Kafka void since then. Now, they’re not about the person being detained at all. DoLS, like everything else, are discussed within the “Austerity Frame”. Read any article from the last two years written by professionals inside the DoLS system – they’re always about the administrative burden on the staff and the cost burden on the authority. P never gets a mention.
I say let’s turn this austerity position on its head. Every learning disabled person living in their own or family home has to go through this process. Each authorisation has to go before the court. Each court application costs £400 (£500 if it requires a physical presence in court). Heaven only knows what the cost of each social worker’s time is in processing each authorisation? The waste of public money is immense. Just think how many care packages could be funded with this money. How many lives could be made more fulfilling if the costs of community DoLS was shifted across?
One final point. In the week I have started a petition to press for the Human Rights Act to be included in the Party’s election manifestos, it could be argued that the process of a community DoLS is a grave intrusion into the person’s Article 8 Right – our right to a private and family life. Should the fact and the means by which it is achieved, allow someone to have their private life so under the microscope? Should Steven’s visits to his uncle be subject to assessment and judgment?
Lawyers – I’m willing to go to court to challenge that.