Admission of a mental disabled people to institutional care. Effective protection or arbitrary detention?

Introduction

The aim of this essay is to critically evaluate the development of procedural safeguards regarding deprivation of incapacitated patients’ liberty in institutional care. It will assess the extent to which the law is successful in protecting patients’ rights against arbitrary detention, and led to the conclusion that neither the past law nor the current law have adequately safeguarded people’s rights against arbitrary detainment. To do so, it will start by evaluating the development of the protection of liberty frameworks in the UK, and how their inadequacy led to the implementation of DOLS in hospitals and care homes. Consequently, there will be an evaluation of three main criticisms. Firstly, it will look at the level of complexity of DOLS, both on a politico-legal plane and on a practical medical plane. Secondly, it will look at what is held to constitute as a deprivation of liberty, and how there are significant gaps in this definition. Thirdly, it will take a closer look at the implications of the Cheshire West¹ judgment and evaluate the consequences of broadening the scope for DOLS. This essay will thus reach the conclusion that the law relating to the admission of incapacitated patients has failed to properly assess individuals’ rights to protection from arbitrary detention.

Development of the Protection of Liberty Framework

The Mental Capacity Act 2005 (MCA) as well as the Mental Health Act 1983 (MHA) contain various statutory provisions aimed at protecting the liberty of individuals suffering from mental disabilities. The MHA established such a framework to provide medical treatment on both a voluntary and involuntary basis, these would either be achieved by formal or informal detention measures.² The MCA on the other hand, provides a framework specifically for incapacitated patients.³ Prior to the passing of the MCA, this area caused various predicaments for the courts. This was due to informal admissions under such circumstances leaving patients without any of the formal safeguards which are in place to protect patients in compulsory detention.⁴ The lack of formal safeguards meant that many incapacitated patients were being detained in hospitals and care homes with no rights to protect them from arbitrary detention.

Before the MCA was implemented, patients who lacked capacity were often accommodated in hospitals under common law resources, so as not to require formal detention schemes via the MHA.⁵ This was proven to be arbitrary and in breach of a patients’ human rights in the landmark case of HL,⁶ which will be further discussed throughout this essay. As the MHA and common law doctrine was unable to adequately protect incapacitated patients’ rights, Parliament development a framework under the MCA 2005 known as deprivation of liberty safeguards (DOLS). This framework intended to give incapacitated individuals a certain degree of protection safeguards. The DOLS provided a framework which lawfully justified the deprivation of a person’s liberty in a hospital or care home, under specific circumstances which had been authorised by a supervisory body.⁷ Despite this attempt, DOLS have been described as ‘an administrative and bureaucratic nightmare’,⁸ with the Select Committee rendering them ‘not fit for purpose’ less than five years after being implemented.⁹

Prior to the MCA 2005, compliant yet incapacitated patients would often be informally detained in hospital under the common law, namely the doctrines of necessity and best interests established in West Berkshire.¹⁰ The use of the common law in such a way came under question in the case of Bournewood, ¹¹ where an autistic and profoundly mentally incapacitated man had been detained in hospital after becoming agitated at a day centre. The hospital denied his carers to visit the ward under fear that he would want to leave, which led his carers to bring the case to court for wrongful confinement. When the case reached the House of Lords, they referred back to West Berkshire, and held that any confinement would be justified by the inherent jurisdiction of the Court.¹² The House of Lords judgment resulted in the ‘Bournewood gap’, which became known as ‘the lack of legal procedure for a person who lacked capacity to seek a review of their detention for care or treatment’.¹³ The Bournewood gap resulted in much criticism, with the Law Commission stating the law was ‘unsystematic and full of glaring gaps’,¹⁴ as well as Lord Steyn held this statutory failure as an ‘indefensible gap in [UK] mental health law’.¹⁵

These criticisms emphasised the significant lack of procedural safeguards for incapacitated mentally disabled patients. However, it was not until the case was brought to the European Court of Human Rights (ECtHR) in 2004 that real change occurred. The appeal was launched to assess whether there had been a violation of the right to liberty under Article 5 of the European Convention of Human Rights (ECHR), which states that ‘no one shall be deprived of his liberty save in ... accordance with a procedure prescribed by law’,¹⁶ with subsection 1(e) specifying instances of the lawful detention of people of ‘unsound mind’.¹⁷ Article 5 placed heavy emphasis on procedures that must be in place to establish adequate safeguards in order to protect arbitrary detention, as well as the right to challenge a deprivation of liberty in Court. The ECtHR held that the UK was in breach of Article 5(1) and 5(4), as there were no procedures in place which assessed the legality of detentions, nor were individuals given the opportunity to dispute the detention in Court.¹⁸ The first case heard in the ECtHR regarding persons of unsound mind was that of Winterwrep¹⁹ in 1979, which established certain requirements for detention. The Strasbourg court held that the ‘unsoundness of mind’ must follow from a ‘true mental disorder’ which has been determined by an ‘objective medical expert’,²⁰ and that the disorder must be ‘of a kind or degree warranting compulsory confinement’.²¹ The Winterwerp requirements go hand in hand with the ECHR Article 5 requirements, and must be taken to mean that a judgement must be ‘consistent with the express and implied principles of the ECHR as a whole, being fair and proper, and protecting the individual from arbitrariness’.²² The court went even further in an attempt to define a deprivation of liberty, and used the 1981 Italian Mafia case of Guzzardi ²³ to reiterate that a deprivation did not simply constitute a prohibition of physical movement, but demanded an assessment of ‘the type, duration, effects and manner of implementation of the measures in question’.²⁴

Having applied these already existing legal principles, the ECtHR held that even if there was no breach of English domestic law in HL, the UK was in breach of Article 5 by not providing effective safeguards. In fact, Article 5 rights specifically disregarded whether the patient manifested a desire to leave the institution,²⁵ and consequently the House of Lords could not use HL’s compliance to mean his detention was lawful. The substantial extent of control executed by clinicians over HL’s movements, care and contact with family marked a particular ‘degree and intensity of control’,²⁶ which led to the conclusion that he had been unlawfully detained. Further, the court held that there was a ‘striking .. lack of any fixed procedural rules by which the admission and detention of compliant incapacitated persons [was] conducted’, and that it noted a particular ‘lack of any formalised admission procedures which indicate who can propose admission, for what reasons and on the basis of what kind of medical .. assessments’.²⁷ The court thus concluded that the limited level of jurisprudence regarding the meaning and application of the best interest test²⁸ proves that there were no substantive rules, and held that the doctrine used by the UK courts was devoid of the necessary procedural safeguards required to ensure the Winterwerp criteria was being correctly enforced.²⁹ This meant that there was no legal measures relating to the protection of the right to liberty against arbitrary admission of incapacitated patients. The violation of Article 5 led the UK government to introduce a safeguard framework specifically for regulating deprivations of liberty of incapacitated individuals. This led to the amendment of the MCA 2005 to include the deprivation of liberty safeguards (DOLS), which will now be evaluated.

MCA 2005 and the Deprivation of Liberty Safeguards

The amendments brought by the Mental Health Act 2007 introduced Schedule A1 and 1A to the MCA 2005. The process by which DOLS is applied neatly follows the Winterwerp criteria. Schedule A1 introduced six categories, which must all be satisfied in order to obtain an authorisation to deprive a person of their liberty:

1) The person must be at least 18 years of age;
2) The person must suffer from a mental disorder as defined by the MHA 1983³⁰ and there must have been a medical assessment of the person by an approved doctor;³¹
3) The person must lack capacity to decide whether they wish to be admitted in institutional care;³²
4) The institution must establish that the person’s detention is in their best interest, and that the degree of detention is proportionate to the likelihood and severity of harm;³³
5) The person must satisfy the relevant eligibility, therefore meaning they cannot be assessed under DOLS if they are already subject to MHA 1983 provisions;³⁴
6) An assessment into whether the person has made an effective and valid advance decision refusing the treatment in question, which would make detainment for treatment and care unlawful.³⁵

Further procedural safeguards are found in the necessity of periodic reviews of the type of detention, as well as the appointing of a representative to survey all procedures and the patient’s overall management.³⁶ In addition, the MCA established the Court of Protection, which allowed for incapacitated patients or their representative to challenge their detention.³⁷ These safeguards require formal assessments to be made by the relevant supervisory bodies, therefore once they are satisfied with the requirements, the deprivation of a patient’s liberty is justified under law if it is in their best interest to be detained.³⁸ Schedule A1 also sets out the relevant procedures for the institution’s managing authority to obtain the required authorisation to deprive a patient of their liberty. As per the DOL Code of Practice, managing authorities have a duty to identify whether depriving a patient of his liberty is necessary, whether all practical steps have been taken to determine if the deprivation is necessary, and whether all reasonable and practical steps have been taken to avoid depriving them of their liberty.³⁹ If the managing authority believes a patient is being deprived, or will be deprived of his liberty, they have the duty to request a supervisory body for an authorisation to do so.⁴⁰ The supervisory body must then appoint assessors to each of the six qualifying requirements, and pay particular attention to appointing different assessors for the best interest and mental health valuation.⁴¹ The supervisory body must also ensure that either a family member or an Independent Mental Capacity Advocate is appointed to consult regarding the patient’s best interests, as well as to be appointed to assist the patient during his commitment.⁴² It therefore seems clear that the introduction of DOLS results in a number of hurdles which need to be passed, and Parliament’s intention in including them was to add safeguards. However, they have not been successful in doing so. The DOLS framework is ‘overly complex’, ‘not well understood’ and ‘poorly implemented’,⁴³ which makes the scheme nothing more than a bureaucratic nightmare.⁴⁴ To assess the reasons behind the failure of the DOLS framework, I will now evaluate why they have been deemed unsuccessful.

Unnecessary Complexity and Draconian Language

When describing what judging a DOLS case was like, Charles J held it was ‘as if you [had] been in a washing machine and spin dryer’.⁴⁵ Similarly, Lady Hale said that ‘the safeguards have the appearance of bewildering complexity’,⁴⁶ making them widely impenetrable by lay people. This is a significant problem for the implementation of DOLS, as it means institutions often need expert legal advice to understand their duties and the necessary procedures. This is particularly worrying for small care homes, which are left ‘marooned with all the responsibility’ to apply for the specified authorisation with a severe lack of guidance.⁴⁷ The complexity of Schedule A1 imposes ‘an enormous administrative burden’ on understaffed and undertrained local authorities, as well as draining an already over stretched budget.⁴⁸ As the process is so inherently complex, it is not surprising that local authorities have raised difficulties in their implementation. This is in direct correlation with the reality that local authorities and small care homes often attempt to make shortcuts or ways to avoid going through the procedures,⁴⁹ which proves that DOLS do not effectively protect the right to liberty, but rather simply serve as a bureaucratic measure.

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¹ Cheshire West and Chester Council v P 2014 UKSC 19.

² MHA 1983, Sections 131, and 2-3.

³ Richardson, ‘Mental capacity at the margin: the interface between two Acts’ (2010) 18 Medical Law Review 1, 57.

⁴ Jackson, E., Medical Law: Texts, Cases and Materials (5th ed) (OUP, 2019), 364.

⁵ Richardson, opt cit note 3, 58.

⁶ HL v The United Kingdom 2004 (2005) 40 EHRR 32.

⁷ Dwyer, S., ‘The Deprivation of Liberty Safeguards and People with Dementia: Implications for Social Workers’ (2010) British Journal of Social Work 40, 1503-1516, 1503.

⁸ Keene, A.R., ‘Mental Capacity Report: Special Report: the Law Commission’s Mental Capacity and Deprivation of Liberty Report (Law Com No. 372)’ (2017) 39 Essex Chambers, 2.

⁹ House of Lords Paper 139, Select Committee on the Mental Capacity Act 2005, ‘Mental Capacity Act 2005: post-legislative scrutiny’ Report of Session 2013–14, para 32.

¹⁰ F v West Berkshire Health Authority and another 1989 2 All ER 545.

¹¹ R. v Bournewood Community and Mental Health NHS Trust Ex p. L 1998 UKHL 24.

¹² Bartlett, P., and Sandland, R., Mental Health Law: Policy and Practice (4th ed) (OUP, 2013), 204.

¹³ Pearce, N., and Jackson., S., ‘Deprivation of Liberty Safeguards Part 2: the Authorisation Regime: statutory provisions of authorisations and Code of Practice’ (April, 2012) Fam Law 432, 432.

¹⁴ Law Commission Report, Mental Incapacity (Law Com No. 231) 1995, Para 1.1

¹⁵ R. v Bournewood Community and Mental Health NHS Trust Ex p. L 1997 EWCA 2879.

¹⁶ Article 5(1) ECHR.

¹⁷ Article 5(1)(e) ECHR.

¹⁸ HL v The United Kingdom 2004 (2005) 40 EHRR 32.

¹⁹ Winterwerp v the Netherlands (Application No. 6301/73) 1979 2 EHRR 387.

²⁰ Ibid, para 39.

²¹ Ibid.

²² Bartlett, opt cit note 12, 206.

²³ Guzzardi v Italy (Application no. 7367/76) 1981 3 E.H.R.R. 333.

²⁴ Ibid, para 92.

²⁵ HL v The United Kingdom 2004 (2005) 40 EHRR 32, para 90.

²⁶ Keywood, K., ‘Detaining Mentally Disordered Patients Lacking Capacity: The arbitrariness of informal detention and the common law doctrine of necessity’ (2005) Med Law Rev, 110.

²⁷ HL v The United Kingdom 2004 (2005) 40 EHRR 32, para 120.

²⁸ Bartlett, opt cit note 12, 207.

²⁹ Keywood, opt cit note 26, 111.

³⁰ MCA 2005, Schedule A1, Part 3, para 14.

³¹ Mental Capacity Act 2005: Code of Practice (2007) (TSO, London), para 4.35-39.

³² Sections 1-3, MCA 2005.

³³ MCA 2005, Schedule A1, Part 3, para 16.

³⁴ MCA 2005, Schedule A1, Part 3, para 17.

³⁵ Pearce, N., and Jackson., S., opt cit note 13.

³⁶ Section 39, MCA 2005.

³⁷ Section 45, MCA 2005.

³⁸ Banner, N., ‘The Bournewood Gap and the Deprivation of Liberty Safeguards in the Mental Capacity Act 2005’ (2011) 18 Philosophy, Psychiatry, & Psychology 2, 123-126.

³⁹ Code of Practice (2007), opt cit note 31, para 3.6.

⁴⁰ Pearce, N., and Jackson., S., opt cit note 13, 432.

⁴¹ Ibid, 436.

⁴² Bartlett, P., opt cit note 12, 209.

⁴³ HoL 139, opt cit note 9, page 7.

⁴⁴ Keene, R:, opt cit note 8, 2.

⁴⁵ Jackson, opt cit note 4, 370.

⁴⁶ Cheshire West and Chester Council v P 2014 UKSC 19, 2014 MHLO 16.

⁴⁷ Pearce, N., and Jackson., S., ‘Deprivation of Liberty Safeguards Part 6: definition of deprivation of liberty’ (August, 2012) Fam Law 999, 999.

⁴⁸ Pearce, N., and Jackson., S., ‘Deprivation of Liberty Safeguards Part 3: how the authorisation regime safeguards are working’ (May, 2012) Fam Law 567, 567.

⁴⁹ Ibid.