DOLS – Cheshire West case
I have recently been asked to do a talk on DOLS (Deprivation of Liberty Safeguards). These came into effect with the Mental Capacity Act 2005 (MCA) and became effective in 2007.
The idea behind these safeguards relates to the issue that on occasions people with a cognitive impairment may be deprived of their liberty for their own wellbeing, but if so, it should be both authorised and regularly reviewed. In accordance with the principles of the MCA it should be the least restrictive option.
There is a process to go through in order to deprive someone of their liberty and the process will depend on where that person is. If they are in hospital or a care home, then the Local Authority should authorise it via their DOLS process (which has 6 different assessments), if they are elsewhere, such as their own home, then the Court of Protection can authorise it.
People made the assumption that an authorisation was only required where someone was trying to leave and being restrained from doing so, which meant that if someone wasn’t trying to leave, because they couldn’t for some reason or appeared not to want to, then no authorisation was necessary. Then came the Cheshire West case!
The Cheshire West case was decided by the Supreme Court, which is the highest Court in England & Wales, so set precedent. It was a discussion around 3 separate cases, 2 sisters and an entirely separate individual. The Court looked at the previous decisions and considered the European Human Rights Convention and came to the following conclusions:
Human Rights are for everyone, they are universal, so when considering the rights of someone with a disability, they should not be considered against someone else with a disability but against anyone, that is how universal they were. They considered it irrelevant whether someone was trying to leave or not and the reason that they were placed where they were. If they would be unable to leave, this is what is relevant and whether they were under “continuous control and supervision” of the carers.
The details of the case were:
MIG & MEG were sisters went into care aged 15 & 16.
MIG – 16, Living with foster mother & devoted to her, who provided her with intensive support in most aspects of daily living, she showed no signs of wanting to leave, but if she did, her foster mother would restrain her. She went on trips and holidays with her foster mother. She was not on any medication.
MEG – 17, Had been in foster care, but due to severe aggressive outbursts she was moved to residential care and wanted to still live in foster care. She had occasional outbursts towards the other 3 residents and at those times, could be physically restrained. She also received tranquilizing medication. Her care needs were met as a result of “continuous supervision and control”. She showed no wish to go out on her own, but would have been restrained had she done so, she was accompanied by staff whenever she left. She attended the same education unit as her sister and had a much fuller social life.
P – 38, Born with cerebral palsey and Down syndrome. He lived with his mother until he was 37 and it was no longer possible. He lived in a bungalow, shared with 2 other residents. 2 staff during the day, 1 waking at night, plus P had 98 hours of 1:1 support p/w (14hrs p/d), to help him leave the house whenever he wanted. He went to day centre, clubs and met with his mother. He could walk short distances, but needed a wheelchair for longer distances. He required prompting with activities of daily living. He wore continence pads, but had a history of shredding them and putting pieces in his mouth, so wore a onsie. He also had challenging behaviour and was not on any tranquilizing medication. He could not “go anywhere or do anything without the support of the staff” and was described as “completely under the control of the staff”.
When considering their lives, they have full social lives and are able to go out, but not without someone going with them. They were also not allowed to move to a new home if they chose.
The Supreme Court decided that they were deprived of their liberty, which meant that there was likely to be an enormous increase in the numbers of cases, which would leave both the Local Authorities and the Court of Protection inundated!