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Sketch by Isobel Williams www.isobelwilliams.blogspot.co.uk

Deprivation of Liberty Safeguards (DoLS) need reform because they are getting in the way of good care. This was the central message at a recent conference convened by Queen Mary University of London, which brought people together to consider alternatives to DoLS, including the Law Commission’s recent reform proposals.

DoLS provide oversight of living situations where people who have difficulty making decisions for themselves are being cared for in hospitals and care homes. Care of older people and people with learning disabilities may involve actions like strapping someone up to make feeding and eating easier, or locking a bedroom door to prevent wandering. But how do we make sure such actions are justified as part of care and are not too restrictive or even unnecessary? This was the question that concerned speakers and audience members from across law, health and social care.

What are DOLS?
DoLS came into force in England and Wales in 2009 following a judgment by the European Court of Human Rights in HL v UK [2004] ECHR 471. HL was an adult man who had autism and learning difficulties. While living in an adult foster placement in the community, he was admitted to Bournewood hospital under sedation in July 1997 after having become agitated at a day centre. His foster carers challenged the decision to continue to detain him in Bournewood. The ECtHR found the lack of legal safeguards for incapacitated adults who were informally detained and staying under restraint in hospitals and care homes was a breach of the right to liberty under Article 5 of the European Convention of Human Rights.

At the moment, there are two different kinds of safeguards depending whether adults lacking legal capacity are being accommodated in care homes or hospitals, or elsewhere. DoLS apply to care homes and hospitals and involve an administrative system of two independent assessors – a doctor with psychiatric expertise and a social worker or similar professional – who need to certify that the individual lacked capacity, was deprived of liberty, and that detention was in that individual’s best interests. An order from the Court of Protection is needed where adults lacking legal capacity are not resident in care homes or hospitals, but are staying with foster parents or in the community, and are subject to restrictions amounting to a deprivation of liberty.

DoLS have been consistently criticised for getting in the way of good care (e.g. Mental Health Alliance 2010). In 2014, a House of Lords Select Committee found that DoLS were not ‘fit for purpose’ and called for them to be replaced. A short time later, the 2014 Supreme Court decision in Cheshire West had the practical effect of expanding the category of people who were legally understood as being ‘deprived of liberty’. The Supreme Court, with the main judgment given by Baroness Hale held that an incapacitated person, whose care arrangements are the state’s responsibility, is to be considered objectively deprived of her liberty if she is subject to continuous supervision and control and is not free to leave (see here). 

This is the case irrespective of the person’s compliance or lack of objection and of the relative normality of the placement or the reason behind a particular placement. As a result, over 138,000 people living in care homes and hospitals are currently considered to be deprived of their liberty, and are entitled to oversight of their situation through DoLS mechanisms. The problem continues to be that safeguards are not being implemented consistently, in a timely fashion and in a manner that promotes, rather than harms, care morale.

The Law Commission is currently consulting on the way forward for legal reform in this area given general acceptance that DoLS are flawed. The consultation paper proposes a new system, called ‘protective care’ which would rely more fully on care plans and Approved Mental Capacity Professionals (ACMPs) for oversight of any restrictions. Protective care moves the focus away from ‘deprivation of liberty’ per se. Instead it would provide a tiered system of safeguards designed to ensure that accommodation, care and treatment are right for the person lacking capacity. Protective care would apply to all forms of accommodation including hospital, care home, supported living, shared lives and domestic accommodation, but the nature of the safeguards will vary depending on the setting.

What did #RethinkDoLS suggest?
One key theme emerging from the conference was that reform discussion should start with people’s lives and not the economic calculus. As Colin Harper from the Law Centre NI pointed out: justice costs. We wouldn’t dream of arguing that major social transformations such as the elimination of slavery should not have happened because they were costly in financial terms. Dr Sara Ryan, of Oxford University and #JusticeforLB, talked about the need to count the human cost of miserable lives. Her son Connor Sparrowhawk, otherwise known as Laughing Boy or LB, lived with autism, a learning disability and epilepsy. He died two years ago when he drowned unsupervised in the bath at an Assessment and Treatment Unit for individuals with learning disabilities run by Southern Health NHS Foundation Trust (see here, here and here). We have to change the way we calculate care improvements, and start by valuing the elimination of misery and the promotion of well-being in people’s everyday lives.    

There was considerable concern about the effects of scrutiny on an ever-expanding group of care subjects and their carers. But it was clear from the wide range of jurisdictions considered that legal accountability is important and even useful for those living in care. The concern for many was that safeguards and legalism should be a means of ensuring good care provision, and not ends in themselves. Interestingly, Tim Spencer-Lane noted that audiences at Law Commission consultations to date seemed to accept the proposal that ordinary homes and domestic settings should be accountable in principle within the new proposed ‘protective care’ regimes.

One consequence of starting the legal reform discussion from the lived experience of care was the need to think about ‘embodied differences’ (see further Fletcher, Fox and McCandless). Strapping someone up so that her or his spontaneous movements are controlled could be seen an enablement of someone’s freedom rather than a restriction of their movement. As speakers Wildeman and Allen have argued in different ways (see here and here), if we think about liberty in its negative sense as a state-imposed restriction of movement then we are more likely to see strapping and equivalents as always being a cage, even if gilded, in Baroness Hale’s Cheshire West terms. But if we think about liberty in its positive sense as a public obligation to support people in achieving their life goals, then we may be more likely to see strapping and equivalents as comforts and shields, not cages.      

Another consequence of contextualising liberty within a care-centred approach was that the full range of interests count in providing support to live flourishing lives, not just liberty. According to Dr Eilionóir Flynn, author of Disabled Justice? and Senior Lecturer at University College Galway: ‘We need to move beyond viewing deprivation of liberty as an appropriate response to individuals in crisis or distress and those with high support needs, and consider alternative non-coercive supports which can better protect individuals’ human rights.’