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.
And our serious is a consultant, talks with Health NHS Foundation,
trust in government and has a special interest in law, is also a member of the law faculty at the university.
Thanks very much, Sophie, and thanks for the invitation. Charlotte asked me to talk about medico legal issues and that's a huge subject.
So just to narrow it a little bit, I picked on one current hot potato, which is Dolz.
That's the deprivation of liberty safeguards.
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
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.
And when I say it's a mess, I've got good authority for saying that because the House of Lords Scrutiny Committee,
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.
And it's something that we all have to struggle with, if you like.
It's another skin of Dr Williams Wilkinsons onion that he talked about just now, another layer of complexity.
And it's something that probably exercises Dr Shen and his colleagues in the general hospital as well.
Quite how a general hospital deals with this now.
Can I just ask for a show of hands for just just to know how many of you even
have the roughest idea of what deprivation of liberty safeguards is all about?
Brilliant. That's an encouraging number of hands that we're not going to make you stand up and explain it all.
So let's go on.
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.
This photograph is from the liberation of Auschwitz.
And just outside Auschwitz is a plaque with a very famous quotation from George
Santayana that the one who doesn't remember history is bound to live through it again.
So what are the safeguards are really all about?
Is protecting the rights of very vulnerable people who are being locked up somewhere?
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,
just we just do need to remember that that's where it starts from.
And it's a very important point. Whether or not we've got the right solution is a different question.
So after the war, a group of international lawyers got together,
agreed the needed to be some framework for human rights to try to prevent some of the horrors of the war being repeated.
And they came up with the European Convention on Human Rights, signed in 1950.
The UK was one of the first signatories. In fact, the UK was a leading part of the legal contingent and draughted it all.
And it became officially part of English law under the Human Rights Act in 1998.
And what the Human Rights Act does is it requires courts in England to interpret the law according to the European Convention.
And if it can't do that for some reason, then the court has to declare that there's an incompatibility.
And we'll be seeing in just a second how that all played out in a particular, very important case.
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,
this is where the phrase deprivation of liberty comes from.
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.
One of the groups that this applies to.
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.
I just want you to pay attention to these words decided speedily by a court.
And as we go on,
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.
There's also Article eight, which is about rights, respect for private and family life article.
It's terribly important, but for reasons that I'm not sure I understand, actually,
most of the case law about this is to do with Article five, not Article eight.
But nevertheless, Article eight is there and we ought to be following it.
Now, all this ticked along in England without anybody paying too much attention to it until a case now known as the Bloomwood case.
And I think this thing came out in 1997, if I remember, and it was about a chap called HLL in the case.
He was actually a man called Harry LeBoeuf.
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
foster placement made and he went to live with a foster family in the community and everything went very well indeed.
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
centre where he'd do whatever he did at the day centre and he come home again in the evening.
And it all worked swimmingly until one day his normal driver was not available.
And they will this it's not actually in the judgements, but Harry's father will foster father is very articulate man.
And at another conference on this, I bought him a drink in the bar and he told me about what happened.
So this is straight from the horse's mouth, if you like.
So on this particular day, driver not available, Harry was picked up by a different driver and a different vehicle.
And even worse, instead of going straight to the hospital on his own, they stopped and picked up several other people en route.
And being autistic, Harry has great difficulty coping with changes in his routine.
And by the time he got to the day centre, he was in such a state they couldn't manage him.
And he ended up being transferred to the Bournemouth Hospital, which was the local learning disability hospital.
And very quickly he settled down and ordinarily you might think, well, he'd have just been sent home again.
But the hospital decided they needed to do a little bit more investigation.
They wanted to do a brain scan. They thought he might have a mood disorder.
They weren't quite sure. So they said to the family, you're not quite ready yet.
Not long. Just leave him here for a bit.
He hadn't been sectioned or detained under the Mental Health Act, was no formal legal process of keeping him in hospital.
And everybody involved in this case agreed that he lacked the capacity to agree to stay.
So they were just keeping him there. And the family said, come on, we want him home.
He's fine. And the hospital said, no, no, really, he's not ready.
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,
broke down, family took legal advice.
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.
If he'd been sectioned, you could have had a tribunal hearing and that would have been a route.
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.
It's all Magna Carta.
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,
the high court can summon the jailer to come and explain why they're locking that person up.
So that's what happens.
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.
And number two, it is necessary in his best interests that he should stay in hospital for investigation and treatment.
High court thought about this and they agreed.
They said, yes, there is the doctrine of necessity in English law, OK, that Fairford is he can stay in hospital, family, not happy.
Take it to the Court of Appeal, Court of Appeal, look at the case and say, no, we don't agree.
We don't think you've made out the doctrine of necessity and we're worried about his human rights.
So they reversed the judgement hospital and took it to the House of Lords as it then was.
House of Lords looked at it, weren't very happy about this, but eventually agreed in a divided judgement.
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.
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.
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.
So if English law says that you can keep him in hospital, European law, the convention says, no, you can't.
So then it went back to the high court sorry.
The House of Lords declared that there was an incompatibility between the European Convention and the state of English law,
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.
This was now 2004, a mere seven years after the case started.
So think about speedy access to a court here. And 2004 was just before the revision of the Mental Health Act.
The government of the time was really trying to get a large amount of power to
lock up dangerous psychopaths in hospitals so that they wouldn't trouble anybody.
And they were encountering an extraordinary level of opposition.
In fact, 37 different bodies had united in the mental health alliance to oppose the government's proposals.
So their attention was really focussed on something completely different.
So I don't know quite how the doll's framework that we got was, in fact draughted.
But it went through piggybacked on the back of the revision of Mental Health Act,
but actually came out as an amendment to the Mental Capacity Act in Schedules 1A and one of the Mental Capacity Act.
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.
The schedules are enormously long and complicated. If you can't sleep one evening, have a look at Schedule A1.
It'll work wonders, but it nevertheless is is the law.
And one of the problems about applying these terribly complicated schedules that I will just tell you a little bit about,
but I promise I'm not going to go through every line is that nobody really knew what counted as a deprivation of liberty.
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.
Have delirium, don't know where they are and whether they're incapable of giving consent, are they all being deprived of liberty?
What about people under general anaesthetics? What about people in nursing homes?
What about people in psychiatric hospitals? And while you're at it,
what about people in supported living arrangements or community hostels or community
placements like the one where Harry himself was being looked after by his parents?
Were any of those deprivations of liberty?
Well, over the next few years, there were a whole series of case law judgements about what was and wasn't a deprivation.
Each one of those judgements was very specific to the facts of that particular case.
And the various expert bodies,
like the Royal College of Psychiatrists and the Department of Health and all sorts people went through all these judgements with a tooth comb,
trying to pull out checklists of factors which would enable you to determine in your particular case whether or not it was a deprivation.
The whole thing was terribly confusing and terribly maddening.
Now, all that changed just about a year ago, just over a year now in a very important test,
that case that's come to be known as Cheshire West that went to the Supreme Court.
And in that case, um, Lady Hale gave the leading judgements in which she gave a definition of deprivation of liberty,
which she called and is still called the acid test. And it's these two points.
If there is continuous supervision and control and the person is not free to leave, then they are detained, deprived of their liberty.
So that's the current legal definition. And if you think about that definition, it includes a vast number of people.
So it does, in fact include or it almost certainly does.
You lawyers argue about anything, but it appears to include all these confused people at the Radcliffe,
almost everybody, nursing homes, unsupported living.
You are being deprived of their liberty. So that creates a huge problem,
because what the Supreme Court is saying is that all these people need to have some
sort of safeguarding and the safeguards that we're supposed to apply are these ones.
So in the declaration liberty safeguards,
what the law says is that there are six conditions which have to be met in order for the deprivation to be proved,
person has to be over 18 and oddly, in something like 350 paragraphs of detail, doesn't actually tell you 18 wants.
Everybody assumes that is years. But it's you know, one doesn't, though.
It says they were eating the person who's got a lack capacity,
which just reminds you a little bit about in a second, they've got to have a mental disorder.
And the last three are slightly technical criteria that I will tell you just a little bit about.
So remember that Doles is part of the Mental Capacity Act.
And because of that, the definition of capacity that we're talking about is the same as the definition in the Mental Capacity Act.
Now, the Mental Capacity Act itself is a wonderful piece of legislation.
If you could throw the dolls away, you'd be left with a really, really good act.
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,
really important to a vast number of people all of us see in our working lives.
And Section one of the act sets out some key principles, which are usually the principles which are here.
Number three is an interesting one. You can't say that somebody lacks capacity.
Just because you see them making a foolish decision may be tempting, but it's not lawful.
And in the act, at sections two and three, there's a sort of two stage has the capacity.
Stage one is that I can if I can paraphrase this, there's got to be something wrong with your head.
You've got to have an identifiable reason that you can't make the decision.
And that could be a diagnosis of a mental disorder, or it might be something like the effects of pain or drugs.
It can also, in case law, be extreme anxiety. And it could probably be because you're drunk.
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.
So whatever is wrong has to be the reason why you're unable to make the relevant decision for yourself.
And I just want to underline something very important that Dr Sheehan just said,
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.
It's always specific to a particular.
And you can have capacity to choose tea and coffee, but not have capacity to manage your financial affairs, for example,
and in the Mental Capacity Act, the definition of what it is to make a decision is this understand the relevant information.
So, of course, the information relevant to the particular decision in question retain it for
long enough to use it or wait up to make the decision and then communicate it.
We just said it's specific to a particular decision.
You must bear in mind, you know, is there anything that you can do to help the person regain capacity?
If you wait a bit, will they get better so that, you know, will they recover from a delirium, for example?
And if so, will that allow you to put off making the decision?
So the act is all about enabling people to make decisions wherever possible, not taking that right away from them.
The mental disorder criterion that we talked about is actually the Mental Health Act definition,
which isn't really terribly helpful since it says any disorder or disability of mind.
The no refusals bit is a slightly technical thing.
It means that the person hasn't made an advanced decision and that they haven't
appointed somebody under a lasting power of attorney who make a conflicting decision.
Not ineligible. This comes from schedule A one, and it's one of the bits where the act starts breaking down into gobbledegook,
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,
on the one hand, and people who should be looked after under the Mental Capacity Act, on the other hand.
And this line is extraordinarily difficult to draw.
It's extraordinary difficult to put into words what it might mean.
And this not ineligible thing is all about that.
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.
So it's a very problematic part of the procedure.
And if you are going to deprive some of your liberty of their liberty, it has to be in their best interests.
And again, the Mental Capacity Act Section four doesn't define best interest,
but it does tell you how you should go about establishing what the best interests are.
And in a nutshell, you have to take a very wide view.
You have to take into account what the person's previously thought and said and done.
And you have to talk to those who know the person to see what they think as well.
The process itself is a bit cumbersome.
So if you're looking after somebody who might be deprived of their liberty, so in other words, if you're a ward manager,
if it's a hospital, not the doctor, actually, it's the ward manager or if you're the manager of a nursing home,
then you have to apply to the supervisory body,
which is the local authority and the local authority sends out to people to make those six assessments that we've just referred to.
And they have to fill in a lot of forms. And it's very bureaucratic.
The Court of Protection is the parts of the English legal system that oversees all this.
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.
You remember in Article five, you have the you must have the right of speedy access to a court capable of discharge.
So think about that when you read these. So safeguards built in.
If you think you've been unfairly deprived of your liberty. Well, first off, there's somebody appointed called the relevant persons representative.
That's usually a friend or family. And it's someone who's supposed to stick up for you, really represent your views.
You can't choose that person. The local authority will choose it.
And there are cases on record where the local authority appears deliberately to have
chosen somebody who's not going to argue rather than somebody else might have argued.
And that's an independent mental capacity advocate. So that's a professional person, again, whose job it is to stick up for you.
They may or may not do that effectively. You can go back to the supervisory body and ask them to review the deprivation.
But of course, they're the same people that deprived you of liberty in the first place.
So it's a bit like banging on the jail door and saying, let me out, I shouldn't be here.
Or finally, you can apply to the Court of protection. But this typically takes well over six months and costs well over 10000 pounds.
And there is legal aid, but it's a very long and complex process doing that.
And extraordinarily few people actually do it. So the safeguards, I would suggest are not brilliant.
So few problems with those. First of all, um,
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.
So each diamond on this chart is a different local authority.
And along the bottom here is the number of authorisations in a year.
So you can see there's an absolutely huge range from some authorities who haven't authorised any at all to this authority,
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.
The other axis is the number of reviews that the authority has undertaken.
These are, you know, when the person goes back to the authority and says,
I don't like being deprived of my liberty, please, would you review what's gone on?
And you might think that the more authorisations and authority makes, the more it will tend to review it.
So you'd expect less if all the authorities were doing reviews at the same of Threshold.
They should be really a straight line. But of course, it's anything but a straight line there.
Some authority. Who do dozens of reviews but actually make very few authorisations are even more obvious than there are authorisations,
which presumably means that reviewing several cases, more than one several times over every possible.
So that's why it's all about that. The great variation, the next slide, this is the real killer.
This column here. So the results came in in 2007. There was a very slow take up.
These are annual numbers of depravations across the whole country.
So a pretty slow take up up to this point in this year, March 2014, we got the Cheshire West judgement,
as I talked about earlier, this redefinition of deprivation of liberty that includes so many people.
So in the following year, following that judgement,
the number of authorisations has gone up more than tenfold and it's expected to go up substantially more than that.
It's probably got a lot further to go because it's likely. Well, there are I think we've got to figure here.
Yeah, 290, 1000 people in their homes. The majority of them will be deprived of their liberty,
not to mention people in hospitals and supported living so that the just the sheer numbers is a huge problem.
There isn't the money to pay for all these assessments. There aren't the assessors to go do all the assessments.
So most local authorities have backlogs of several months that they can't even get the assessments done, let alone any reviews or appeals.
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,
which was the whole point of it in the first place. We've got this terribly cumbersome process.
But in order to get a successful appeal, if you think it's gone wrong, almost nobody manages to do that.
And they have to have enormous assistance in terms of getting to the court of protection.
And it certainly isn't a speedy decision.
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.
And that may well be a lot of breaches as well. So the government response to all this, well, they've changed the forms.
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.
Actually, it's gotten put six forms altogether in one long form. We got a revised code of practise, which is modestly helpful, perhaps,
but the exciting bit which you can get involved in, if you like, if you feel strongly about this kind of thing,
is that the Law Commission right now has a consultation open about the whole
system and you have until the fourth of November to make your views known.
And it's understood that there will be new legislation sometime, probably not terribly soon, because these things move slowly.
Thank you very much.