Keep the law out of disabled care

This week, the Supreme Court hears its first-ever appeal from the Court of Protection, which takes decisions for adults lacking mental capacity. The case concerns Article 5 of the European Convention on Human Rights. The issue is how to determine whether there is a ‘deprivation of liberty’ for the purposes of the Mental Capacity Act 2005.

One appellant is called P, and the others are called P and Q. A total of 16 counsel are appearing, and four NGOs have intervened, including the Equality and Human Rights Commission (EHRC).

The concept being debated is whether persons with mental disabilities are, or should be, ‘free to leave’ the place where they live when their accommodation has been arranged by the state. In essence, the appellants are suggesting that they have a human right to be detained. This is an odd argument.

Article 5 of the European Convention guarantees the right to liberty and security of person. It spells out the circumstances in which the state may lawfully deprive a person of his liberty, such as imprisonment after a conviction by a court of competent jurisdiction, or the detention of the mentally disordered. Article 5.4 gives people in detention a right to a speedy review by a court.

The Mental Health Act 1983 provided machinery for the detention of people who are gravely mentally ill, for their own protection or to protect the public. They can appeal a decision to detain them to a Mental Health Review Tribunal. Those who have a less severe mental disability, but nonetheless cannot care for themselves, fall outside of the Act.

The present cases revisit issues which have been litigated before. In 1998, the House of Lords heard a case called HL, about an autistic man who was admitted to a mental hospital as a ‘voluntary’ patient after he became upset at a day centre. HL previously lived in this hospital for many years, but had recently been boarded out with a foster family.

His new family took the hospital to court, after a doctor refused to let HL come home with them. Their lawyers argued that, because HL lacked capacity to consent to his voluntary admission to hospital, it was unlawful to keep him there, unless the Mental Health Act machinery was invoked. The House of Lords disagreed but, in 2004, the European Court of Human Rights upheld HL’s argument.

This decision generated much angst about the perceived plight of people placed in care homes by local authorities. If they lack capacity to decide to live there, are they being unlawfully detained? The Department of Health issued a consultation paper, and eventually the Mental Capacity Act 2005 was amended.

We now have extraordinarily bureaucratic machinery to enable the formal detention of those lacking mental capacity, such as an elderly woman with dementia placed in a care home. There are forms galore, numbered 1 to 32, some green and some blue. This over-engineered system is euphemistically referred to as deprivation of liberty safeguards, or the Orwellian-sounding DOLS. Legal Aid is freely available to anyone seeking to challenge his or her deprivation of liberty in the Court of Protection.

There is great regional variation in the use of this new machinery. Doctors, social workers and lawyers all tend to disagree on what conditions, in practice, amount to a ‘deprivation of liberty’. Ironically, people with dementia or learning disabilities are now being subjected to formal deprivations of their liberty, in circumstances where this is pointless and unnecessary.

We also have a burgeoning legal industry in which lawyers challenge these detentions, or seek to argue that people falling outside the new regime should be included within it. In practice, this litigation achieves little or nothing. Occasionally, a person may be moved to a new home.

The reality is that anyone caring for a person who cannot look after himself may need to use measures to ensure that he doesn’t wander off and get hurt, just as when looking after small children. Of course, reasonable restraint may tip over into mistreatment, like the ‘chemical cosh’ or shackling patients to beds. However, the solution to such abuse, if it occurs, is not detention.

The latest appeals have been litigated up to the highest court in the land, at considerable public expense. The first appeal concerns a 39-year-old man with cerebral palsy, Down’s syndrome and incontinence, who lives in a bungalow with his carers. The bungalow is not a care home, so falls outside the DOLS regime.

P has an unfortunate tendency of eating his incontinence pads. His carers ingeniously developed a giant babygro for him to wear to stop this. They would also sweep out his mouth, if they thought he had ingested something he shouldn’t. P’s lawyer, the Official Solicitor, argued that P was deprived of his liberty, and that it was wrong for him to be excluded from the DOLS regime. The High Court agreed. The Court of Appeal overruled this decision.

In the second appeal, P and Q are sisters, brought up in a seriously dysfunctional household. The local authority took them into care while they were under 18, after an elder sibling accused their mother and stepfather of serious sexual offences. The parents were convicted and jailed. P, who has a mental age of two and a half, went to live with a foster mother, and was very happy. Q has a mental age of four to five, but her behaviour was more challenging. She was accommodated in a small NHS children’s home. Both attended the same college. As P and Q attained their majority, the Court of Protection was asked to approve the arrangements for their care, which it did. Again, their accommodation did not count as a care home to which the DOLS regime applied. The Official Solicitor contended that P and Q were being deprived of their liberty, unsuccessfully.

There is nothing objectionable in local authorities placing disabled adults who are, essentially, harmless in suitable environments where they can be appropriately cared for. It does not make sense to equate being looked after with being detained. This is to set the threshold for detention too low.

There is no such thing as ‘detention-lite’: people are either free, or they are not. It is a great misfortune to be born disabled; doubly unfortunate to have abusive parents as well. But the idea that P and Q should be treated as detained defies common sense.

What seems to drive the present preoccupation with confinement is a lack of trust in public services, exacerbated by fear generated by recent scandals, like the mistreatment of residents at Winterbourne View. But the cause of such scandals is bad care. If anything, the existing DOLS bureaucracy is a distraction, which provides false reassurance to care homes and local authorities.

As for the quixotic assumption that lawyers and judges are best placed to micromanage the conditions in which a disabled person lives, and to shine a light into dark places, this is not the proper function of our legal system. Nor is the Human Rights Act a panacea for all the problems of human life. One hopes that the country’s top court will resist any temptation to spin straw into gold.

Barbara Hewson is a barrister at Hardwicke in London.