Judgment of the Supreme Court - Deprivation of Liberty Safeguards: Where are we now? Brief Overview: What does

this mean for social and healthcare professionals?

Gary Spencer-Humphrey LL.B Hons MBASW PgD Independent Socio-Psycholegal Researcher

Terms used in presentation ADL Activities of Daily Living CA 89 Children Act 1989COA Court of Appeal COP Court of Protection DoL Deprivation of Liberty DoLS Deprivation of Liberty SafeguardsSSD Social (Adult) Services Department SW Social Worker

P and Q (by their litigation friend, the Official Solicitor) v Surrey County Council

“THE MIG & MEG CASE”

P (by his litigation friend the Official Solicitor) v Cheshire

West and Chester Council and another

“THE CHESHIRE WEST CASE”

What follows is a brief overview of the judgment from the Supreme Court and the new test to establish what is a DoL.

Overview

P and Q (by their litigation friend, the Official Solicitor)

v Surrey County Council

“THE MIG & MEG CASE”

MIG and MEG: (1) • The case started out in the Surrey County Court under the case of P and Q v Surrey County Council under the CA 89.

• MIG and MEG are sisters in 2007 became the subjects of care proceedings under the CA 89.

• MIG has a learning disability at the upper end of the severe range, she also has dual sensory impairment and communicated with difficulty, with limited understanding.

• MEG has a learning disability at the upper end of the moderate range, her communication skills are better than MIG’s. MEG had many autistic traits and she exhibits challenging behaviour to a very high degree, more than MIG’s.

MIG and MEG: (2) • Following conviction of rape and sexual abuse from MIG and MEG’s parents (mother and step-father), MIG and MEG were placed in separate foster placements.

• MIG enjoyed her placement with her foster parent, who she considered her “mummy”. MIG did not make any attempts to leave, but her foster parent confirmed if she did, she would be prevented from leaving the home unescorted.

• MEG did not enjoyed her first placement and her challenging behaviours saw her placement move from a foster placement to a specialist NHS home due to MEG’s outbursts of challenging behaviours.

• Both MIG and MEG saw each other regularly at school and neither made any attempts to leave their respective placements. On face value, they were both happy in their respective placements.

MIG and MEG: COP and COA• When both MIG and MEG reached the age which saw them fall outside the remit of the CA 89, their case was transferred to the Court of Protection.

• Both the Court of Protection and Court of Appeal decided that both MIG and MEG were not deprived of their liberty living within a foster placement and NHS specialist home respective. “Whether the concept of physical liberty protected by article 5 is the same for everyone…” [para 33]

• Judgments respective – (2010) EWHC 785 (Fam) and (2011) EWCA Civ 190

You be the Judge• Do you agree with the COA and COP that both MIG and MEG are not being deprived of their liberty?

• What factors do you think are relevant to consider if MIG and/or MEG are subject to a DoLS? - Please refer to the documents on your desks.

MIG and MEG: Supreme Court• The Supreme Court did not agree with the COP and COA that MIG and MEG were not deprived of their liberty.

• Lady Hale, leading the judgment held that “A gilded cage is still a cage” [para 46]

• Applying the ‘Acid Test’; are they subject to constant control/supervision and would they be prevented from leaving? [para 48, 54]

P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and

another

“THE CHESHIRE WEST CASE”

P: 2009 (1)• At the time of the COP hearing, P was a 38 year old gentleman with cerebral palsy and moderate learning disabilities (Down’s syndrome); he required 24/7 care and support to maintain independent living and support with all his ALDs. When he was aged 37, his main carer (mother) could no longer continue her main caring role due to her own ill-health. The SSD in 2009 obtained DoLS authorisation to move P initially to a support living accommodation and he received 98 hours of care a week. This was his “best interest” in the view of the SSD, shared with the COP.

P: 2009 (2)• November 2009 - P lived in a supported accommodation with two other residents. P has in excess on 98 hours of planned 1:1 support a week and the scheme had 2 staff on day duty with a wake member of staff at night. The supported scheme was close to P’s family home his 98 hours a week of care allowed P to “leave the home when ever he wanted”. P attended day centre x4 days a week, hyrdo once a week and was able to go out socially to the pub, shops, clubs and he saw his mother on a regular basis. P could walk very short distance and used a wheelchair for longer distances. Sometimes, P presented with challenging behaviours which required staff intervention and he also needed support with the majority of his ALDs on a day to day basis.

P: 2009 (3)• P had a history of ripping his continence pad up and placed this in his mouth. A decision was made to place P in a “body suit” which prevented him being able to access the continence pad and only staff could remove the suit to access the continence pad.

P: COP and COA• The Court of Protection decided that P

was deprived of his liberty.

• The Court of Appeal decided that P was not deprived of his liberty, holding this was “relative normality” as adopted in the MIG and MEG case – a term coined by Munby LJ.

• Judgments respective – (2011) EWHC 1330 (Fam) and (2011) EWCA Civ 1257

“relative normality”

• Munby LJ effectively compared P’s life to that of another person with a disability and held that P was not deprived of his liberty, as he was able to; access the pub, clubs, day centre, hydrotherapy, was able to see his mother, go out when he wanted (with support) and more or less lived a deprived-free life.

• Do you agree with this principle?

You be the Judge• Do you agree with the COA that P is not deprived of his liberty or do you agree with the COP that P is deprived of his liberty?

• What factors do you think are relevant to consider if P is subject to a DoLS? - Please refer to the documents on your desks.

P: Supreme Court• The Supreme Court did not agree with the COA (and Munby LJ) that P was not deprived of his liberty. They restored the judgment of the COA!

• Lady Hale, leading the judgment held that “A gilded cage is still a cage” [para 46]

• Restriction and deprivation - degree or intensity, and not one of nature or substance [para 20]

Reflection

The (new) “Acid Test”Is the person is under continuous supervision and control?Is not free to leave? Or would be refused if requested, attempted or planned)

Wishes, intention or desire is no relevant.

The following are not relevant: • a) the person's compliance or lack of objection• b) the relative normality of the placement• c) the reason or purpose behind a particular placement

Because of the extreme vulnerability of people like P, MIG and MEG,decision-makers should err on the side of caution in deciding whatconstitutes a deprivation of liberty. If in doubt, DoLS and if required,let the Court (of Protection) decide! A unlawful DoLS may be abreach of human rights (Articles 3, 5, 6, 7, 8, 9, 10, 12)

So what does that mean for me?• The court were very clear to elevate continuous supervision and control / lack of freedom to leave are the essential ingredients of deprivation of liberty [para 63] Lord Neuberger.

• In short, it is likely that more people will be eligible for DoLS following this judgment – including individuals who a) do not object to their placement b) lack capacity, but agreed to placement c) Do not make any representation of the matter of placement d) are being supervised at a continuous level e) would be discouraged from leaving a unit/home/ward/sector of a home f) has access to community ‘with support’ or ‘when required’ but could not leave when they wanted g) remains in a “homely” environment (look out for Shared Lives) h) people who attend day centre (as per a-g matters), i) people’s risk of being deprived have been reduced, but not taken away j) people who change their mind and/or have capacity which flutters

So what does that mean for me?• The likely stance will be to turn DoLS to as ‘proactive’ and dynamic assessment, not one of ‘reactive’ by the nature or situation. By this, I mean the absence of an intention to articulate or an inability to express a desire to go is now a factor to consider.

• The ‘Acid Test’ is now the new test for whether a DoL is present. Is a person under constant supervision, control and not free to leave when they want?

• When does a restriction become a deprivation – this is still unclear but remains one of nature and degree.

• Appling the new test; think of a service user at a residential care home who is not currently under a DoLS, but would be ‘under constant supervision and control’ and whose request to leave would be rejected by the home?

So what does that mean for me?• Some of you may think “It is the responsibility authorities duty to refer, not the social workers” – Yes, this is true, but we are beacons of civil liberties and should be actively educating and searching for contravention of civil liberties in our case work.

• “Does this mean you may be subject to a DoLS in your own home, a day centre, a shared lives placement, at college?”

• What does “Constant supervision and control” mean – it does not mean 1:1 care and support! When does ‘support’ then become supervision or control; is this relevant?

• Will this increase the number of DoLS?

So what does that mean for me (2) ?• “Restriction or deprivation of liberty is not solely dependent on the reaction” [para 76] Lord Kier

• “The regime is no more intrusive or confining than is required for the protection and well-being of the person concerned” [para 66] is irrelevant if there is or is not a DoLS.

• “Absence of objection” [para 68] does not mean DoLS should be overlooked. The mere fact an objection is absence is not a factor to consider. This could impact greatly on our cliental group.

• “The placement is in a small group or domestic setting which is as close as possible to “normal” home life” [para 71] Does not mean there is a DoLS of not. This will of course impact on Shared Lives, Extra-Care Housing and possibly, even people’s own homes!

So what does that mean for me (2) ?• The comparator is not longer a person with a disability, it is you, your colleague...anyone.

• Just because there is a DoLS, does this mean we can undertake more risk work with clients – What do you think?

• Inevitably, more DoLS referrals will be made, more will be agreed, but as long as they are least restricted, in the best interest and reviewed, this should not prevent practice.

• What now; consider the recent report from the House of Lords Select Committee on Mental Capacity Act and now the long awaited judgment, what is the future for DoLS?

Links• Press Statement from the Supreme Court: • http://www.supremecourt.uk/decided-cases/docs/

UKSC_2012_0068_PressSummary.pdf

• Full Judgment from the Supreme Court: • http://www.supremecourt.uk/decided-cases/docs/

UKSC_2012_0068_Judgment.pdf

• MHLO (Mental Health Law Online): • http://www.mentalhealthlaw.co.uk/Cheshire_West_and_Chester_Council_v_P_

%282014%29_UKSC_19,_%282014%29_MHLO_16

• Academia website: Gary Spencer-Humphrey• https://keele.academia.edu/GarySpencerHumphrey

Questions?

gary.spencer-humphrey@nhs.net

gary.spencerhumphrey@ymail.com