Deprivation of liberty in the community

Deprivation of liberty in relation to the Mental Capacity Act 2005 has been a hot topic for those involved in funding community care over the past 12 months. Legal challenges continue to be made and headlines written.

The recent case of Essex County Council v RF and others in January 2015 made both the national and local press. In this case, a 91-year-old man (CP) was said to have been separated from his cat and detained in a dementia unit against his will.

CP was eventually returned home, but was awarded £60,000 damages for unauthorised deprivation of liberty, had his care home fees reimbursed, and was advised that Essex County Council was to fund a care regime to enable him to remain in his own home - an expensive reminder to the council that it follows the Mental Capacity Act.

Care package

Since the Supreme Court judgment of Lady Hale and others in P v Cheshire West and Chester Council and P and Q v Surrey County Council in March 2014, local authorities and clinical commissioning groups have had to grapple more closely with the question of how to identify and protect individuals who might be subject to an unauthorised deprivation of liberty by a care package funded by them.

The judgment of Lady Hale and others re-emphasised what was already law, in that an adult who lacks capacity, who is not subject to the Mental Health Act, can only legally be deprived of their liberty when that deprivation is:

• authorised by a decision of the Court of Protection;

• necessary to save life or prevent a serious deterioration in a patient's condition; or,

• authorised in accordance with the Deprivation of Liberty Safeguards (DoLS).

The DoLS are only available in an NHS hospital or a registered care home setting and therefore any person managed in the community, whether in their own home, sheltered accommodation or a non-registered care home, can only be deprived of their liberty where the decision is authorised by the Court of Protection.

Following the Cheshire West decision, questions were raised as to whether the Court of Protection could manage and respond to what was expected to be a flood of applications and possible legal challenges.

Sir James Munby, President of the Court of Protection, considered this in Re X and others and suggested a streamlined procedure for straightforward matters. Court forms were created and tribunal judges re-trained to consider the paper applications.

Best option

Although the court is prepared, the response on the ground may be limited. Some case managers remain horrified at the prospect of having to apply to the Court of Protection for Deprivation of Liberty Orders for individuals who are living, often in their own homes with family members, with a deemed good quality of life. They struggle to understand and accept the concept that these individuals, often with dementia or a learning disability, can be deprived of their liberty where there is an agreed care plan which provides the best option for supported and protective care.

The case managers found some support for their views in November 2014 from Mr Justice Mostyn in the case of Rochdale MBC v KW. Mr Justice Mostyn found at first instance that it was impossible to consider that a lady with cognitive and mental health problems, epilepsy and physical impairment, could be deprived of her liberty by a care package in her own home. Mr Justice Mostyn's views, which echo those of many care managers, are however unlikely to be upheld and may prove unhelpful in terms of providing guidance going forward.

The question for the case managers and those responsible for managing community care is therefore, does it matter? Does it matter if an individual is deprived of their liberty if everyone around them deems it to be the best option? Should the court get involved?

The answer has to be yes. It does matter, as even the most well-meaning care plan can be wrong. Simply preparing the forms for the court brings a focus to care being provided and, if nothing else, the court authorisation ensures that no one is 'lost' in the system as annual reviews have to take place and reports made.

This is undoubtedly a burden on care providers, but is one that in the long run will ensure that the quality of care improves. SJ

Amanda Mead is a solicitor at Kennedys