Madmutt’s Blog

I completed my first Best Interest Assessor (BIA) assessment this week. Those who have been following the Fighting Monsters blog will have heard of the Deprivation of Liberty Safeguards (DOLS). I was quite anxious about and lost some sleep over the weekend trying to remember what I had learnt on my BIA course. An Urgent Authorisation was made by the care home (the Managing Authority) last week, which meant that all the assessments had to be completed in seven days.

The care manager in the case gave me an outline of her concerns and the restrictions that this woman had been placed. I spent the weekend trying to decide, based on the evidence I had, whether this woman was being deprived of her liberty. You see, she wanted to leave the care home and return to live with her children. However, she could not be safely managed at home due to her illness. She was most insistent that she return home, becoming verbally aggressive to staff and her children when informed that could not return. Despite this, she did not make any attempts to leave the home and she did not need restraining at any time.

I assessed her at the home with the Mental Health Assessor (a Consultant Psychiatrist). It was clear that she had dementia and did not have the mental capacity to make a decision where she should live. She had an “impairment of, or a disturbance in the functioning of, the mind or brain” (Mental Capacity Act 2005 (MCA), section 2) which meant she was unable to make the decision in question. According to section 3 of that Act, she would not be able to make a decision if she could not:

• (a) to understand the information relevant to the decision
• (b) to retain the information
• (c) to use or weigh the information as part of the process of making the decision, or
• (d) to communicate the decision

The doctor judged that she had a mental disorder and that she lacked mental capacity because she could not do (a) and (c) above. I had to now make a decision as to whether the restrictions on her amounted to a deprivation of liberty. She was clearly not free to leave and return home. I considered the case of JE v DE and Surrey County Council. DE wanted to return home but was not free to do so. Unlike in my case JE (his wife) wanted him to return home. DE did not make any attempts to leave but repeatedly stated that he wanted to return home. In my case, if the family said that they wanted their relative to return home, the similarities with the DE case would have been profound, and I would have decided that she was being deprived. However, deciding what amounts to deprivation of liberty is not always straightforward. It is not helped by confusing case judgments and the government’s decision not to include a clear definition in the Deprivation of Liberty Safeguards Code of Practice. A commonsense view would be that being made to live somewhere you don’t want to would be a deprivation of liberty. On the face of it the JE v DE would support that view. However, in several cases it has been said that the distinction between a deprivation of and a restriction upon liberty is merely one of degree or intensity and not one of nature or substance. Therefore, all the restrictions placed on my client had to be considered, their degree and intensity, her reactions to them as well as her family’s views.

When I considered all the facts of the case, I did not feel that she was being deprived of her liberty. Being told where to live is not, on its own a deprivation of liberty. There are numerous situations where people are required to live in places not of their own choosing but are not being deprived e.g. offenders with conditions of residence either on bail or as part of a community punishment, mental health patients on Guardianship Orders under section 7 of the Mental Health Act (MHA) 1983, conditionally discharged patients under sections 37/41 MHA’83 with conditions to reside where directed.

This process has highlighted to me, how complicated this area of deprivation of liberty is. It seems to me that the DOLS processes have added an extra layer of complexity to an already difficult area. Where there is confusion and complexity in law, it is ripe for lawyers to make loads of money. I am concerned that this will be at the expense of vulnerable people and local authorities as disputes over deprivation of liberty get dragged through the courts. I can only hope that we will end up with a clearer definition of deprivation of liberty and much more straightforward and transparent processes to help decide who is being deprived and who is not.