Last week the Daily Mail and the Telegraph newspapers covered a recent ruling of the Court of Protection concerning deprivation of liberty. Mr Justice Jackson ruled that a 67 year old lady named M should be allowed to return from a care home where she was currently deprived of her liberty, to live in her bungalow. The Clinical Commissioning Group (CCG) who arranged her care were concerned that if M returned home she would not comply with efforts to manage her diabetes, and there was a risk (although not an inevitability) that she might become very ill, or even die. However, M herself was bitterly unhappy in the care home; she had even threatened self harm or suicide should the court decide that she should remain there. Jackson J concluded that despite the risks it was in M’s best interests to return home. He observed that ‘there is little to be said for a solution that attempts, without any guarantee of success, to preserve for her a daily life without meaning or happiness and which she, with some justification, regards as insupportable.’ The judgment has been reported in full on the BAILII website.
M was deprived of her liberty under a legal framework called the Mental Capacity Act 2005 deprivation of liberty safeguards. The deprivation of liberty safeguards protect the human rights of people who are deprived of their liberty in care homes and hospitals. When a person is deprived of their liberty under the safeguards, a formal assessment of their ‘mental capacity’ to consent (or refuse consent) to their accommodation in the hospital or care home must be sought, and if they ‘lack capacity’ then an independent assessment of whether it is in their best interests is commissioned.
The safeguards are designed to comply with Article 5 of the European Convention on Human Rights. The purpose of Article 5 is to ensure people’s liberty is not arbitrarily denied on a person whim of those in authority. The safeguards apply even when professionals feel they are acting in a person’s best interests; in the words of the European Court of Human Rights the point of such safeguards is to ‘protect individuals against any “misjudgments and professional lapses”’ (HL v UK). The safeguards try to do this in a number of ways. The point of the assessments is to ensure some local level independent scrutiny of any restrictions which a person is subject to, and to consider the alternative options. The person who is deprived of their liberty is entitled to support from a representative (usually a member of their family) and an Independent Mental Capacity Advocate (IMCA) who can help them to understand and exercise their rights of appeal. They are also entitled to non means tested legal aid to bring an appeal against their detention to the Court of Protection, as is their right under Article 5(4) ECHR.
At face value, the case of M is an example of the system working exactly as it should. M’s appeal was facilitated by her IMCA, and the Court found that it was in M’s best interests to go home. The Court had no criticism of the CCG’s actions, saying their risk aversion was understandable. It is surprising in a way that it warranted newspaper coverage at all – every year thousands of people are discharged by Tribunals under the Mental Health Act 1983 without a flicker of interest from the media.
Whilst the case of M is interesting and important in its own way, the media are missing the real story here. The reality is that most people are not getting the safeguards that they are entitled to, and even when they do they are so complex and inaccessible that ordinary people – let alone people deprived of their liberty because of conditions like dementia or learning disabilities – are unable to exercise their rights of appeal. M’s case is unusual because she was able to exercise her rights of appeal; meanwhile a growing body of evidence suggests that most people in her position are unable to.
Between 2009-2013 there were 21,137 authorised detentions under the deprivation of liberty safeguards, and it is widely believed that there are also many unauthorised and unlawful detentions in care homes and hospital settings. If the system of safeguards were working properly, we would expect to see many more cases like this – of a person using their right to appeal to the Court of Protection to challenge their detention under the safeguards. Yet, in fact, remarkably few such cases are reported. Data released in 2011 suggests that only a tiny fraction of detainees make it to the Court of Protection. In addition to this case, we know of only four other examples where a person’s appeal was successful: there is the widely reported case of Steven Neary, a woman from Wales called Peggy Ross used the safeguards to overturn an authorisation which prevented her from going on a cruise with her partner, the Independent newspaper has reported that Jackson J discharged another deprivation of liberty of a ‘pensioner’ who was ‘held prisoner’, and the 39 Essex St Mental Capacity Act Newsletter has reported one other such case (Re P). That makes five known examples, out of thousands of authorised detentions, and many more likely unauthorised and unlawful detentions, of the safeguards working to free somebody from detention.
The Mental Health Alliance has repeatedly warned that there are serious problems with the safeguards (2010, 2012), as has the Care Quality Commission and the Law Society. In the last year the House of Lords has set up a Select Committee on the Mental Capacity Act 2005 who have heard evidence from a range of experts and sources that there are very, very, serious problems with the deprivation of liberty safeguards. The Equality and Human Rights Commission have indicated that they will conduct an inquiry into the safeguards in 2013-14. The Parliamentary Health Committee called the problems with the implementation of the safeguards ‘profoundly depressing and complacent’ and has required the government to conduct a review into their operation and report back with an action plan in a year’s time. Meanwhile, the Supreme Court has just heard what really is a landmark case in relation to the deprivation of liberty safeguards.
Of these vitally important developments, the media has reported next to nothing. Perhaps these issues are too complex and too faceless for ordinary media fare, but in the face of growing recognition of the very serious problems with the deprivation of liberty safeguards, the media are covering the wrong stories. Rather than acting as a watchdog for the liberty of citizens, they are barking at the postman and letting the burglars in.