1 00:00:00,270 --> 00:00:09,270 So a final speaker at this session is docu series, he's going to be talking about ethical and legal challenges in old age psychiatry. 2 00:00:09,270 --> 00:00:14,220 And our serious is a consultant, talks with Health NHS Foundation, 3 00:00:14,220 --> 00:00:22,680 trust in government and has a special interest in law, is also a member of the law faculty at the university. 4 00:00:22,680 --> 00:00:33,000 Thanks very much, Sophie, and thanks for the invitation. Charlotte asked me to talk about medico legal issues and that's a huge subject. 5 00:00:33,000 --> 00:00:39,750 So just to narrow it a little bit, I picked on one current hot potato, which is Dolz. 6 00:00:39,750 --> 00:00:42,900 That's the deprivation of liberty safeguards. 7 00:00:42,900 --> 00:00:49,230 And what I want to do in the next half hour is take you through what doses is and look at it a little bit 8 00:00:49,230 --> 00:00:58,200 historically to understand why we've got the law that we've got at the moment and to look at why it's a mess. 9 00:00:58,200 --> 00:01:05,940 And when I say it's a mess, I've got good authority for saying that because the House of Lords Scrutiny Committee, 10 00:01:05,940 --> 00:01:14,790 which recently looked at the law on this thing, concluded that the current law is not fit for purpose, but it nevertheless is the law at the moment. 11 00:01:14,790 --> 00:01:18,450 And it's something that we all have to struggle with, if you like. 12 00:01:18,450 --> 00:01:25,620 It's another skin of Dr Williams Wilkinsons onion that he talked about just now, another layer of complexity. 13 00:01:25,620 --> 00:01:30,690 And it's something that probably exercises Dr Shen and his colleagues in the general hospital as well. 14 00:01:30,690 --> 00:01:34,800 Quite how a general hospital deals with this now. 15 00:01:34,800 --> 00:01:41,010 Can I just ask for a show of hands for just just to know how many of you even 16 00:01:41,010 --> 00:01:46,570 have the roughest idea of what deprivation of liberty safeguards is all about? 17 00:01:46,570 --> 00:01:52,500 Brilliant. That's an encouraging number of hands that we're not going to make you stand up and explain it all. 18 00:01:52,500 --> 00:01:59,110 So let's go on. 19 00:01:59,110 --> 00:02:08,290 So this is where it starts, the deprivation of liberty safeguards law that we've got at the moment starts just after the Second World War. 20 00:02:08,290 --> 00:02:12,940 This photograph is from the liberation of Auschwitz. 21 00:02:12,940 --> 00:02:18,670 And just outside Auschwitz is a plaque with a very famous quotation from George 22 00:02:18,670 --> 00:02:24,610 Santayana that the one who doesn't remember history is bound to live through it again. 23 00:02:24,610 --> 00:02:28,690 So what are the safeguards are really all about? 24 00:02:28,690 --> 00:02:34,660 Is protecting the rights of very vulnerable people who are being locked up somewhere? 25 00:02:34,660 --> 00:02:41,440 That's the heart of it. And before we dismiss the whole lot of what we've got at the minute as a lot of nonsense, 26 00:02:41,440 --> 00:02:44,830 just we just do need to remember that that's where it starts from. 27 00:02:44,830 --> 00:02:52,270 And it's a very important point. Whether or not we've got the right solution is a different question. 28 00:02:52,270 --> 00:02:58,180 So after the war, a group of international lawyers got together, 29 00:02:58,180 --> 00:03:06,280 agreed the needed to be some framework for human rights to try to prevent some of the horrors of the war being repeated. 30 00:03:06,280 --> 00:03:11,080 And they came up with the European Convention on Human Rights, signed in 1950. 31 00:03:11,080 --> 00:03:19,060 The UK was one of the first signatories. In fact, the UK was a leading part of the legal contingent and draughted it all. 32 00:03:19,060 --> 00:03:27,670 And it became officially part of English law under the Human Rights Act in 1998. 33 00:03:27,670 --> 00:03:38,890 And what the Human Rights Act does is it requires courts in England to interpret the law according to the European Convention. 34 00:03:38,890 --> 00:03:45,220 And if it can't do that for some reason, then the court has to declare that there's an incompatibility. 35 00:03:45,220 --> 00:03:52,630 And we'll be seeing in just a second how that all played out in a particular, very important case. 36 00:03:52,630 --> 00:04:01,060 So I'm going to show you three little bits of the European Convention that are very important at the heart of all this Article five, 37 00:04:01,060 --> 00:04:03,970 this is where the phrase deprivation of liberty comes from. 38 00:04:03,970 --> 00:04:13,630 No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law persons of unsound mind. 39 00:04:13,630 --> 00:04:15,850 One of the groups that this applies to. 40 00:04:15,850 --> 00:04:25,300 So if you're going to deprive someone of liberty, you've got to have a procedure prescribed by law and it is a sentence or two later. 41 00:04:25,300 --> 00:04:32,740 I just want you to pay attention to these words decided speedily by a court. 42 00:04:32,740 --> 00:04:34,330 And as we go on, 43 00:04:34,330 --> 00:04:45,220 perhaps you'd like to make up your own minds on whether what we've got a moment amounts to in a system which allows speedy determination by court. 44 00:04:45,220 --> 00:04:51,040 There's also Article eight, which is about rights, respect for private and family life article. 45 00:04:51,040 --> 00:04:55,480 It's terribly important, but for reasons that I'm not sure I understand, actually, 46 00:04:55,480 --> 00:04:59,470 most of the case law about this is to do with Article five, not Article eight. 47 00:04:59,470 --> 00:05:04,960 But nevertheless, Article eight is there and we ought to be following it. 48 00:05:04,960 --> 00:05:14,290 Now, all this ticked along in England without anybody paying too much attention to it until a case now known as the Bloomwood case. 49 00:05:14,290 --> 00:05:22,720 And I think this thing came out in 1997, if I remember, and it was about a chap called HLL in the case. 50 00:05:22,720 --> 00:05:25,180 He was actually a man called Harry LeBoeuf. 51 00:05:25,180 --> 00:05:34,810 He was in his 40s and he was autistic and he'd been in the Beaumont Hospital for some time and was then there was a 52 00:05:34,810 --> 00:05:42,160 foster placement made and he went to live with a foster family in the community and everything went very well indeed. 53 00:05:42,160 --> 00:05:52,060 He'd spent several years with the foster family, and the routine was that each morning he'd be picked up from home and taken by car to a day 54 00:05:52,060 --> 00:05:56,680 centre where he'd do whatever he did at the day centre and he come home again in the evening. 55 00:05:56,680 --> 00:06:02,740 And it all worked swimmingly until one day his normal driver was not available. 56 00:06:02,740 --> 00:06:10,090 And they will this it's not actually in the judgements, but Harry's father will foster father is very articulate man. 57 00:06:10,090 --> 00:06:16,360 And at another conference on this, I bought him a drink in the bar and he told me about what happened. 58 00:06:16,360 --> 00:06:20,890 So this is straight from the horse's mouth, if you like. 59 00:06:20,890 --> 00:06:28,540 So on this particular day, driver not available, Harry was picked up by a different driver and a different vehicle. 60 00:06:28,540 --> 00:06:34,750 And even worse, instead of going straight to the hospital on his own, they stopped and picked up several other people en route. 61 00:06:34,750 --> 00:06:40,000 And being autistic, Harry has great difficulty coping with changes in his routine. 62 00:06:40,000 --> 00:06:45,130 And by the time he got to the day centre, he was in such a state they couldn't manage him. 63 00:06:45,130 --> 00:06:52,120 And he ended up being transferred to the Bournemouth Hospital, which was the local learning disability hospital. 64 00:06:52,120 --> 00:06:58,320 And very quickly he settled down and ordinarily you might think, well, he'd have just been sent home again. 65 00:06:58,320 --> 00:07:03,540 But the hospital decided they needed to do a little bit more investigation. 66 00:07:03,540 --> 00:07:08,020 They wanted to do a brain scan. They thought he might have a mood disorder. 67 00:07:08,020 --> 00:07:12,240 They weren't quite sure. So they said to the family, you're not quite ready yet. 68 00:07:12,240 --> 00:07:14,580 Not long. Just leave him here for a bit. 69 00:07:14,580 --> 00:07:21,360 He hadn't been sectioned or detained under the Mental Health Act, was no formal legal process of keeping him in hospital. 70 00:07:21,360 --> 00:07:26,590 And everybody involved in this case agreed that he lacked the capacity to agree to stay. 71 00:07:26,590 --> 00:07:30,990 So they were just keeping him there. And the family said, come on, we want him home. 72 00:07:30,990 --> 00:07:34,590 He's fine. And the hospital said, no, no, really, he's not ready. 73 00:07:34,590 --> 00:07:41,700 And by the way, please don't come and see him because it only upsets him when he come and finally got fed up with this communication, 74 00:07:41,700 --> 00:07:44,370 broke down, family took legal advice. 75 00:07:44,370 --> 00:07:50,430 And the legal advice was there's not a lot you can do about it because he's not been sectioned under the Mental Health Act. 76 00:07:50,430 --> 00:07:54,510 If he'd been sectioned, you could have had a tribunal hearing and that would have been a route. 77 00:07:54,510 --> 00:08:03,960 But that wasn't available here. What you can do is go to the high court and seek a writ of habeas corpus, which is sounds very wonderful. 78 00:08:03,960 --> 00:08:04,950 It's all Magna Carta. 79 00:08:04,950 --> 00:08:11,490 And that kind of it is about as old as Magna Carta, but it's an ancient bit of English law that says if somebody is being locked up, 80 00:08:11,490 --> 00:08:17,790 the high court can summon the jailer to come and explain why they're locking that person up. 81 00:08:17,790 --> 00:08:18,880 So that's what happens. 82 00:08:18,880 --> 00:08:28,290 Bloomwood hospital managers were summoned to the high court to explain and what they said was, number one, he lacks capacity to agree to stay. 83 00:08:28,290 --> 00:08:37,740 And number two, it is necessary in his best interests that he should stay in hospital for investigation and treatment. 84 00:08:37,740 --> 00:08:41,260 High court thought about this and they agreed. 85 00:08:41,260 --> 00:08:51,900 They said, yes, there is the doctrine of necessity in English law, OK, that Fairford is he can stay in hospital, family, not happy. 86 00:08:51,900 --> 00:08:57,600 Take it to the Court of Appeal, Court of Appeal, look at the case and say, no, we don't agree. 87 00:08:57,600 --> 00:09:04,980 We don't think you've made out the doctrine of necessity and we're worried about his human rights. 88 00:09:04,980 --> 00:09:11,460 So they reversed the judgement hospital and took it to the House of Lords as it then was. 89 00:09:11,460 --> 00:09:17,910 House of Lords looked at it, weren't very happy about this, but eventually agreed in a divided judgement. 90 00:09:17,910 --> 00:09:27,030 So they weren't unanimous. They finally agreed that actually it was correct that he could be kept in hospital under the doctrine of necessity. 91 00:09:27,030 --> 00:09:36,570 Family not very happy by this stage. They've exhausted the legal options in England, so they took it to the European Court of Human Rights. 92 00:09:36,570 --> 00:09:47,310 But we just heard about the European Court of Human Rights, looked at it and said, oh, dear, this is a breach of Article five. 93 00:09:47,310 --> 00:09:55,830 So if English law says that you can keep him in hospital, European law, the convention says, no, you can't. 94 00:09:55,830 --> 00:09:59,550 So then it went back to the high court sorry. 95 00:09:59,550 --> 00:10:05,340 The House of Lords declared that there was an incompatibility between the European Convention and the state of English law, 96 00:10:05,340 --> 00:10:12,730 as stated by the House of Lords. And it then went back to the government to think about what they were going to do to put matters right now. 97 00:10:12,730 --> 00:10:18,290 This was now 2004, a mere seven years after the case started. 98 00:10:18,290 --> 00:10:27,000 So think about speedy access to a court here. And 2004 was just before the revision of the Mental Health Act. 99 00:10:27,000 --> 00:10:33,450 The government of the time was really trying to get a large amount of power to 100 00:10:33,450 --> 00:10:37,680 lock up dangerous psychopaths in hospitals so that they wouldn't trouble anybody. 101 00:10:37,680 --> 00:10:40,830 And they were encountering an extraordinary level of opposition. 102 00:10:40,830 --> 00:10:48,810 In fact, 37 different bodies had united in the mental health alliance to oppose the government's proposals. 103 00:10:48,810 --> 00:10:53,790 So their attention was really focussed on something completely different. 104 00:10:53,790 --> 00:10:59,370 So I don't know quite how the doll's framework that we got was, in fact draughted. 105 00:10:59,370 --> 00:11:03,930 But it went through piggybacked on the back of the revision of Mental Health Act, 106 00:11:03,930 --> 00:11:14,040 but actually came out as an amendment to the Mental Capacity Act in Schedules 1A and one of the Mental Capacity Act. 107 00:11:14,040 --> 00:11:22,710 And they came in in 2007. And I don't know about you, but I just think even the numbering gets you confused before you start. 108 00:11:22,710 --> 00:11:29,910 The schedules are enormously long and complicated. If you can't sleep one evening, have a look at Schedule A1. 109 00:11:29,910 --> 00:11:35,190 It'll work wonders, but it nevertheless is is the law. 110 00:11:35,190 --> 00:11:42,270 And one of the problems about applying these terribly complicated schedules that I will just tell you a little bit about, 111 00:11:42,270 --> 00:11:49,620 but I promise I'm not going to go through every line is that nobody really knew what counted as a deprivation of liberty. 112 00:11:49,620 --> 00:11:58,070 So, for example, in all the hundreds of people that we've just been hearing about at the Oxford University Hospital, people who lack capacity. 113 00:11:58,070 --> 00:12:04,010 Have delirium, don't know where they are and whether they're incapable of giving consent, are they all being deprived of liberty? 114 00:12:04,010 --> 00:12:08,240 What about people under general anaesthetics? What about people in nursing homes? 115 00:12:08,240 --> 00:12:11,540 What about people in psychiatric hospitals? And while you're at it, 116 00:12:11,540 --> 00:12:15,770 what about people in supported living arrangements or community hostels or community 117 00:12:15,770 --> 00:12:20,000 placements like the one where Harry himself was being looked after by his parents? 118 00:12:20,000 --> 00:12:23,240 Were any of those deprivations of liberty? 119 00:12:23,240 --> 00:12:32,870 Well, over the next few years, there were a whole series of case law judgements about what was and wasn't a deprivation. 120 00:12:32,870 --> 00:12:38,060 Each one of those judgements was very specific to the facts of that particular case. 121 00:12:38,060 --> 00:12:40,520 And the various expert bodies, 122 00:12:40,520 --> 00:12:46,880 like the Royal College of Psychiatrists and the Department of Health and all sorts people went through all these judgements with a tooth comb, 123 00:12:46,880 --> 00:12:54,610 trying to pull out checklists of factors which would enable you to determine in your particular case whether or not it was a deprivation. 124 00:12:54,610 --> 00:12:58,520 The whole thing was terribly confusing and terribly maddening. 125 00:12:58,520 --> 00:13:04,430 Now, all that changed just about a year ago, just over a year now in a very important test, 126 00:13:04,430 --> 00:13:09,770 that case that's come to be known as Cheshire West that went to the Supreme Court. 127 00:13:09,770 --> 00:13:20,390 And in that case, um, Lady Hale gave the leading judgements in which she gave a definition of deprivation of liberty, 128 00:13:20,390 --> 00:13:26,150 which she called and is still called the acid test. And it's these two points. 129 00:13:26,150 --> 00:13:34,770 If there is continuous supervision and control and the person is not free to leave, then they are detained, deprived of their liberty. 130 00:13:34,770 --> 00:13:43,340 So that's the current legal definition. And if you think about that definition, it includes a vast number of people. 131 00:13:43,340 --> 00:13:46,760 So it does, in fact include or it almost certainly does. 132 00:13:46,760 --> 00:13:53,390 You lawyers argue about anything, but it appears to include all these confused people at the Radcliffe, 133 00:13:53,390 --> 00:13:57,470 almost everybody, nursing homes, unsupported living. 134 00:13:57,470 --> 00:14:02,630 You are being deprived of their liberty. So that creates a huge problem, 135 00:14:02,630 --> 00:14:07,190 because what the Supreme Court is saying is that all these people need to have some 136 00:14:07,190 --> 00:14:12,630 sort of safeguarding and the safeguards that we're supposed to apply are these ones. 137 00:14:12,630 --> 00:14:16,100 So in the declaration liberty safeguards, 138 00:14:16,100 --> 00:14:26,120 what the law says is that there are six conditions which have to be met in order for the deprivation to be proved, 139 00:14:26,120 --> 00:14:34,700 person has to be over 18 and oddly, in something like 350 paragraphs of detail, doesn't actually tell you 18 wants. 140 00:14:34,700 --> 00:14:39,290 Everybody assumes that is years. But it's you know, one doesn't, though. 141 00:14:39,290 --> 00:14:43,130 It says they were eating the person who's got a lack capacity, 142 00:14:43,130 --> 00:14:48,260 which just reminds you a little bit about in a second, they've got to have a mental disorder. 143 00:14:48,260 --> 00:14:55,790 And the last three are slightly technical criteria that I will tell you just a little bit about. 144 00:14:55,790 --> 00:15:00,140 So remember that Doles is part of the Mental Capacity Act. 145 00:15:00,140 --> 00:15:08,660 And because of that, the definition of capacity that we're talking about is the same as the definition in the Mental Capacity Act. 146 00:15:08,660 --> 00:15:13,610 Now, the Mental Capacity Act itself is a wonderful piece of legislation. 147 00:15:13,610 --> 00:15:17,930 If you could throw the dolls away, you'd be left with a really, really good act. 148 00:15:17,930 --> 00:15:26,540 And if you're wide awake and not in need of sleep, I recommend reading the first 11 sections of it because they're very clear and they're really, 149 00:15:26,540 --> 00:15:32,720 really important to a vast number of people all of us see in our working lives. 150 00:15:32,720 --> 00:15:39,950 And Section one of the act sets out some key principles, which are usually the principles which are here. 151 00:15:39,950 --> 00:15:45,140 Number three is an interesting one. You can't say that somebody lacks capacity. 152 00:15:45,140 --> 00:15:52,670 Just because you see them making a foolish decision may be tempting, but it's not lawful. 153 00:15:52,670 --> 00:16:00,290 And in the act, at sections two and three, there's a sort of two stage has the capacity. 154 00:16:00,290 --> 00:16:06,290 Stage one is that I can if I can paraphrase this, there's got to be something wrong with your head. 155 00:16:06,290 --> 00:16:11,990 You've got to have an identifiable reason that you can't make the decision. 156 00:16:11,990 --> 00:16:19,130 And that could be a diagnosis of a mental disorder, or it might be something like the effects of pain or drugs. 157 00:16:19,130 --> 00:16:24,200 It can also, in case law, be extreme anxiety. And it could probably be because you're drunk. 158 00:16:24,200 --> 00:16:34,280 So quite a range of things. But nevertheless, it's not sufficient that you're just someone who's never been very good at making sensible decisions. 159 00:16:34,280 --> 00:16:42,920 So whatever is wrong has to be the reason why you're unable to make the relevant decision for yourself. 160 00:16:42,920 --> 00:16:47,810 And I just want to underline something very important that Dr Sheehan just said, 161 00:16:47,810 --> 00:16:54,860 which is if you're talking about whether or not someone's got the capacity, you've got to know what its capacity to do. 162 00:16:54,860 --> 00:16:58,310 It's always specific to a particular. 163 00:16:58,310 --> 00:17:06,940 And you can have capacity to choose tea and coffee, but not have capacity to manage your financial affairs, for example, 164 00:17:06,940 --> 00:17:15,550 and in the Mental Capacity Act, the definition of what it is to make a decision is this understand the relevant information. 165 00:17:15,550 --> 00:17:20,410 So, of course, the information relevant to the particular decision in question retain it for 166 00:17:20,410 --> 00:17:28,270 long enough to use it or wait up to make the decision and then communicate it. 167 00:17:28,270 --> 00:17:32,440 We just said it's specific to a particular decision. 168 00:17:32,440 --> 00:17:37,360 You must bear in mind, you know, is there anything that you can do to help the person regain capacity? 169 00:17:37,360 --> 00:17:42,340 If you wait a bit, will they get better so that, you know, will they recover from a delirium, for example? 170 00:17:42,340 --> 00:17:46,120 And if so, will that allow you to put off making the decision? 171 00:17:46,120 --> 00:17:55,390 So the act is all about enabling people to make decisions wherever possible, not taking that right away from them. 172 00:17:55,390 --> 00:18:00,520 The mental disorder criterion that we talked about is actually the Mental Health Act definition, 173 00:18:00,520 --> 00:18:07,420 which isn't really terribly helpful since it says any disorder or disability of mind. 174 00:18:07,420 --> 00:18:11,800 The no refusals bit is a slightly technical thing. 175 00:18:11,800 --> 00:18:15,730 It means that the person hasn't made an advanced decision and that they haven't 176 00:18:15,730 --> 00:18:24,230 appointed somebody under a lasting power of attorney who make a conflicting decision. 177 00:18:24,230 --> 00:18:34,430 Not ineligible. This comes from schedule A one, and it's one of the bits where the act starts breaking down into gobbledegook, 178 00:18:34,430 --> 00:18:43,010 really what this thing is about is it's about trying to draw a line in between people who should be looked after under the Mental Health Act, 179 00:18:43,010 --> 00:18:49,070 on the one hand, and people who should be looked after under the Mental Capacity Act, on the other hand. 180 00:18:49,070 --> 00:18:53,150 And this line is extraordinarily difficult to draw. 181 00:18:53,150 --> 00:18:57,200 It's extraordinary difficult to put into words what it might mean. 182 00:18:57,200 --> 00:19:01,070 And this not ineligible thing is all about that. 183 00:19:01,070 --> 00:19:09,800 And it's something that all of us struggle with, even if we're very clever people who spent much too much of our lives trying to read this law. 184 00:19:09,800 --> 00:19:14,960 So it's a very problematic part of the procedure. 185 00:19:14,960 --> 00:19:20,360 And if you are going to deprive some of your liberty of their liberty, it has to be in their best interests. 186 00:19:20,360 --> 00:19:24,770 And again, the Mental Capacity Act Section four doesn't define best interest, 187 00:19:24,770 --> 00:19:29,690 but it does tell you how you should go about establishing what the best interests are. 188 00:19:29,690 --> 00:19:33,590 And in a nutshell, you have to take a very wide view. 189 00:19:33,590 --> 00:19:38,060 You have to take into account what the person's previously thought and said and done. 190 00:19:38,060 --> 00:19:44,630 And you have to talk to those who know the person to see what they think as well. 191 00:19:44,630 --> 00:19:47,450 The process itself is a bit cumbersome. 192 00:19:47,450 --> 00:19:54,440 So if you're looking after somebody who might be deprived of their liberty, so in other words, if you're a ward manager, 193 00:19:54,440 --> 00:20:02,960 if it's a hospital, not the doctor, actually, it's the ward manager or if you're the manager of a nursing home, 194 00:20:02,960 --> 00:20:05,720 then you have to apply to the supervisory body, 195 00:20:05,720 --> 00:20:13,820 which is the local authority and the local authority sends out to people to make those six assessments that we've just referred to. 196 00:20:13,820 --> 00:20:18,290 And they have to fill in a lot of forms. And it's very bureaucratic. 197 00:20:18,290 --> 00:20:24,020 The Court of Protection is the parts of the English legal system that oversees all this. 198 00:20:24,020 --> 00:20:33,530 And we'll talk more about that in just a second. There are a few safeguards built in, but just think back for a moment. 199 00:20:33,530 --> 00:20:40,040 You remember in Article five, you have the you must have the right of speedy access to a court capable of discharge. 200 00:20:40,040 --> 00:20:44,030 So think about that when you read these. So safeguards built in. 201 00:20:44,030 --> 00:20:53,060 If you think you've been unfairly deprived of your liberty. Well, first off, there's somebody appointed called the relevant persons representative. 202 00:20:53,060 --> 00:21:02,240 That's usually a friend or family. And it's someone who's supposed to stick up for you, really represent your views. 203 00:21:02,240 --> 00:21:05,870 You can't choose that person. The local authority will choose it. 204 00:21:05,870 --> 00:21:09,770 And there are cases on record where the local authority appears deliberately to have 205 00:21:09,770 --> 00:21:16,490 chosen somebody who's not going to argue rather than somebody else might have argued. 206 00:21:16,490 --> 00:21:23,870 And that's an independent mental capacity advocate. So that's a professional person, again, whose job it is to stick up for you. 207 00:21:23,870 --> 00:21:31,310 They may or may not do that effectively. You can go back to the supervisory body and ask them to review the deprivation. 208 00:21:31,310 --> 00:21:34,790 But of course, they're the same people that deprived you of liberty in the first place. 209 00:21:34,790 --> 00:21:40,370 So it's a bit like banging on the jail door and saying, let me out, I shouldn't be here. 210 00:21:40,370 --> 00:21:52,010 Or finally, you can apply to the Court of protection. But this typically takes well over six months and costs well over 10000 pounds. 211 00:21:52,010 --> 00:21:57,350 And there is legal aid, but it's a very long and complex process doing that. 212 00:21:57,350 --> 00:22:06,800 And extraordinarily few people actually do it. So the safeguards, I would suggest are not brilliant. 213 00:22:06,800 --> 00:22:13,190 So few problems with those. First of all, um, 214 00:22:13,190 --> 00:22:23,960 this is some some data which which really shows a little bit about the variation across the country in how the dollars are being applied. 215 00:22:23,960 --> 00:22:28,880 So each diamond on this chart is a different local authority. 216 00:22:28,880 --> 00:22:35,390 And along the bottom here is the number of authorisations in a year. 217 00:22:35,390 --> 00:22:44,150 So you can see there's an absolutely huge range from some authorities who haven't authorised any at all to this authority, 218 00:22:44,150 --> 00:22:52,190 which is authorised over 300. So where you live has a pretty huge effect on whether or not you're likely to be deprived of liberty. 219 00:22:52,190 --> 00:22:56,930 The other axis is the number of reviews that the authority has undertaken. 220 00:22:56,930 --> 00:22:59,900 These are, you know, when the person goes back to the authority and says, 221 00:22:59,900 --> 00:23:04,610 I don't like being deprived of my liberty, please, would you review what's gone on? 222 00:23:04,610 --> 00:23:11,970 And you might think that the more authorisations and authority makes, the more it will tend to review it. 223 00:23:11,970 --> 00:23:18,170 So you'd expect less if all the authorities were doing reviews at the same of Threshold. 224 00:23:18,170 --> 00:23:22,230 They should be really a straight line. But of course, it's anything but a straight line there. 225 00:23:22,230 --> 00:23:29,850 Some authority. Who do dozens of reviews but actually make very few authorisations are even more obvious than there are authorisations, 226 00:23:29,850 --> 00:23:37,320 which presumably means that reviewing several cases, more than one several times over every possible. 227 00:23:37,320 --> 00:23:43,410 So that's why it's all about that. The great variation, the next slide, this is the real killer. 228 00:23:43,410 --> 00:23:49,410 This column here. So the results came in in 2007. There was a very slow take up. 229 00:23:49,410 --> 00:23:54,630 These are annual numbers of depravations across the whole country. 230 00:23:54,630 --> 00:24:05,730 So a pretty slow take up up to this point in this year, March 2014, we got the Cheshire West judgement, 231 00:24:05,730 --> 00:24:11,790 as I talked about earlier, this redefinition of deprivation of liberty that includes so many people. 232 00:24:11,790 --> 00:24:16,050 So in the following year, following that judgement, 233 00:24:16,050 --> 00:24:22,620 the number of authorisations has gone up more than tenfold and it's expected to go up substantially more than that. 234 00:24:22,620 --> 00:24:30,840 It's probably got a lot further to go because it's likely. Well, there are I think we've got to figure here. 235 00:24:30,840 --> 00:24:36,540 Yeah, 290, 1000 people in their homes. The majority of them will be deprived of their liberty, 236 00:24:36,540 --> 00:24:44,970 not to mention people in hospitals and supported living so that the just the sheer numbers is a huge problem. 237 00:24:44,970 --> 00:24:50,310 There isn't the money to pay for all these assessments. There aren't the assessors to go do all the assessments. 238 00:24:50,310 --> 00:24:59,550 So most local authorities have backlogs of several months that they can't even get the assessments done, let alone any reviews or appeals. 239 00:24:59,550 --> 00:25:06,960 And that there's a real question, I think, about whether or not any of it makes any difference at all for a vulnerable person, 240 00:25:06,960 --> 00:25:12,600 which was the whole point of it in the first place. We've got this terribly cumbersome process. 241 00:25:12,600 --> 00:25:19,620 But in order to get a successful appeal, if you think it's gone wrong, almost nobody manages to do that. 242 00:25:19,620 --> 00:25:28,440 And they have to have enormous assistance in terms of getting to the court of protection. 243 00:25:28,440 --> 00:25:30,910 And it certainly isn't a speedy decision. 244 00:25:30,910 --> 00:25:38,190 So we're still in breach of Article five and we haven't even begun to think about the Article eight, the right to family life business. 245 00:25:38,190 --> 00:25:47,010 And that may well be a lot of breaches as well. So the government response to all this, well, they've changed the forms. 246 00:25:47,010 --> 00:25:54,450 That's a jolly good thing to do, that we have a new form, which is an alternative which isn't really very different from the old ones. 247 00:25:54,450 --> 00:26:06,360 Actually, it's gotten put six forms altogether in one long form. We got a revised code of practise, which is modestly helpful, perhaps, 248 00:26:06,360 --> 00:26:11,520 but the exciting bit which you can get involved in, if you like, if you feel strongly about this kind of thing, 249 00:26:11,520 --> 00:26:16,260 is that the Law Commission right now has a consultation open about the whole 250 00:26:16,260 --> 00:26:21,840 system and you have until the fourth of November to make your views known. 251 00:26:21,840 --> 00:26:30,540 And it's understood that there will be new legislation sometime, probably not terribly soon, because these things move slowly. 252 00:26:30,540 --> 00:26:35,183 Thank you very much.