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Deprivation of Liberty Safeguards Assessments

Volume 597: debated on Wednesday 17 June 2015

[Philip Davies in the Chair]

I beg to move,

That this House has considered deprivation of liberty safeguards assessments.

It is a great privilege, Mr Davies, to serve under your chairmanship.

I am highlighting an expensive bureaucratic nightmare that is engulfing councils up and down the country. Local authorities are struggling to cope with the tenfold increase in applications for deprivation of liberty safeguards, known as DOLS, which is not only costing millions of pounds and tying up countless police and other resources, but causing untold distress to relatives of dementia sufferers who are treated when they die as if they had died in state detention.

We need first to look at how we arrived at such an unsustainable position. DOLS were introduced by the Department of Health in 2009 under the Mental Capacity Act 2005. They were intended to comply with articles 5.1 and 5.4 of the European convention on human rights to ensure that appropriate safeguards were in place to protect adults deprived of their liberty. DOLS provide a procedure for authorising any deprivation of liberty in care homes, hospitals and supported living arrangements. I am particularly interested in the increase in applications for DOLS assessments from care homes.

If DOLS were working effectively, the system would prevent potentially abusive restraint and sedation. It would also help to ensure that day-to-day practice in a care home did not restrict a person’s liberty—for example, people with dementia should be able to move around as they wish, as long as it was safe, and should not be required to stay in one place simply because that was easier for the staff.

In March 2014, the UK Supreme Court handed down two judgments, commonly known as Cheshire West, which outline the test that must be used in determining whether arrangements made for the care of an individual lacking capacity amount to a deprivation of liberty. The key test is whether the person concerned is “under continuous supervision” and “not free to leave”. The judgments in effect lowered the threshold and resulted in the colossal increase in the number of DOLS applications to local councils.

The situation was first brought to my attention by GPs in my constituency, council officers and distressed relatives of dementia sufferers living in local care homes. To get an overview of the national picture, I tabled a parliamentary question in March asking, with reference to the Supreme Court judgment, how many requests for DOLS assessments there had been in each local authority area. The answer revealed massive increases. In 2012-13, there were only 11,887 applications for the year, but the latest figure, for only the three months January to March this year, was 36,000, and of those, two thirds—68%—had not been processed. The numbers are rising every month and the Local Government Association estimates that an additional £136 million is needed this year to cope with the additional applications.

Between 1 April 2014 and the end of January 2015, Stockport received 612 applications. It now has about 230 cases that have not yet been processed. All cases agreed will be reassessed automatically in 12 months’ time. Stockport council is now spending almost £1.2 million a year on DOLS assessments and employing six new social workers, a special DOLS co-ordinator and a part-time solicitor. The council has also had to draft in a private agency, because each average assessment takes about nine to 12 hours. That is a lot of time and money when social care budgets are being squeezed.

One of the main aspects worrying me on behalf of my constituents is the consequences of guidance issued by the Chief Coroner to local coroners in December 2014, subsequent to the Supreme Court judgments. The guidance stated that all deaths of people subject to a DOLS order must be investigated by the coroner, whether the death was from natural causes or not, and that such people were deemed to be “in state detention”.

As a result, when a dementia sufferer subject to a DOLS dies in a care home, GPs have to notify police, who must come and sit with the body until it is collected by the coroner’s mortician to be taken to the hospital mortuary, where it has to be formally identified before a formal inquest process starts. That system is causing untold distress to relatives and leading to an increased workload throughout the public sector. I understand that Peter Fahy, the chief constable of Greater Manchester police, has written to adult social care teams looking for information amid concern about how the changes will impact on police time and resources.

One lady contacted me about her 86-year-old husband, who has Alzheimer’s and lives in a care home. She was very distressed about what would happen when he died and to learn that he was classed as being in state detention:

“He’s not a prisoner just because he has a lockable door. He is not in prison—he has done nothing wrong.”

The couple have been married for 60 years and she visits him every day.

Another lady, whose father lives in a care home, told me:

“I am absolutely appalled at the ruling that residents in a care home with dementia and their families, need to be put through so much after death. Not only will it be a drain on public services that are already stretched to the limit but it will also prolong the agony of the grieving families at a really stressful and upsetting time.”

She added:

“I would like the guidance to be looked at again with more compassion towards grieving families.”

Nationally, there have been reports of relatives of dementia sufferers who pass away in care homes being forced to wait months to bury loved ones because of the rules.

In addition to individual constituents, I have been approached by the local GP practice in Brinnington, Stockport, an area in which there are 234 elderly care beds and five care homes, most of whose residents have some form of dementia. The GPs have said that they are worried that the Chief Coroner’s advice will have an enormous and far-reaching impact across a great many services,

“not least affecting patients and grieving relatives.”

Their main concern is that those subject to DOLS must have their death reported to a coroner. They pointed out that, technically, that could involve every single care home resident in Stockport: all care homes have lockable doors to help to protect resident welfare, so every resident could be liable to a DOLS assessment.

Nationally, doctors are unhappy. The British Medical Association is calling for an urgent review of DOLS to simplify the system, which it says is a time-consuming and cumbersome process that will divert resources from front-line services.

I wrote to the Chief Coroner, Judge Peter Thornton QC, to express my concerns. He confirmed in a reply in March that, in his view of the law,

“and as I set out in the Guidance, persons who die in a hospital or care home subject to an authorised DoLS die ‘in state detention’. Their death must therefore be referred to and investigated by the Coroner.”

He said that that interpretation of the law was shared by the Ministry of Justice and the Department of Health, and was also the view of the Labour Government during the passage of the Coroners and Justice Act 2009. However, he accepted that

“the consequences of the law… may not have been appreciated at the time of enactment. They involve consideration by Coroners of all DoLS cases even where the death was from natural causes. That is unfortunate and may cause extra distress to the bereaved families, which should be avoided if at all possible.”

He went on:

“Within the framework of the law at present, I am therefore considering ways of easing the burden of such cases on families and easing the extra burden of work for coroners (an additional expense for local authorities). But this in itself may require a change in the law which will be a matter for Parliament.”

I understand that the Law Commission is reviewing DOLS following a critical report by a House of Lords Select Committee in March 2014—ironically, a few days before the Supreme Court ruling that said DOLS were “not fit for purpose”. However, the Law Commission’s recommendations are not due until 2017 and there might be no change in practice until 2020.

The setting up of the post of Chief Coroner was quite controversial. There were concerns that trying to introduce uniformity to the system would take away discretion from experienced local coroners, and it would appear that that is exactly what has happened in this regard. Local coroners, who make decisions every day about whether to have inquests, now feel obliged to have an inquest on someone because they were subject to a DOLS even though their death was entirely expected. The need for an inquest is being determined not by the nature of the death, but by a person’s status of being in state detention when they died.

I have been told about a case of a lady who died of natural causes in a care home and was cremated, only for it to be discovered afterwards that she was subject to a DOLS. The coroner then had to get permission to carry out an inquest in the absence of a body. The family were very upset because they had to revisit the death. Another elderly gentleman subject to a DOLS died of a type of cancer of the lung often linked to exposure to asbestos, and there now has to be an inquest with a jury because that is an unnatural cause of death for someone subject to a DOLS. That all takes time and money.

The Chief Coroner’s guidance, however, is essentially his opinion. Paragraph 46 of the guidance states:

“The Chief Coroner, who sits in the High Court on coroner cases, is not providing a judgment or ruling. This guidance is no more than the expression of an opinion, subject to the ruling of the High Court. Coroners, who are of course entitled to make their own independent judicial decisions, will do as they see fit in any particular case. But they are invited to take this guidance into account.”

The Chief Coroner may argue that it is therefore up to local coroners to make decisions, but the last sentence of the paragraph has been interpreted by local coroners as an order rather than guidance. The Chief Coroner, of course, has the authority of a judge. If that last sentence was removed, local coroners might feel they had more discretion over when to hold an inquest.

In reference to state detention, the Chief Coroner says in his guidance that there are two alternative views. The first is that the death of a person in hospital or a care home who was subject to a DOLS would not automatically require a coroner’s investigation. Indeed, in most cases there would be no need for an investigation, although the coroner would have to decide case by case whether one was necessary. However, the Chief Coroner has taken the second view, which is that a person subject to a DOLS

“falls squarely within the 2009 Act’s definition of ‘in state detention’.”

Given the distress caused to relatives, the diversion of resources from front-line care and the Chief Coroner’s stated objective of easing relatives’ suffering, it is time for him to reconsider his position on state detention.

Without a shadow of a doubt, that phrase, “state detention”, is causing great upset to relatives who, on top of their grief, have to cope with all the additional formality of process accompanying a state detention, such as, for example, the attendance of the police and an inquest. Further, if all the applications for 2014-15 had been processed, we would have had an additional 142,902 people in state detention. That could give rise to a misunderstanding among the international community, which might think that we were approaching the levels of detention in North Korea.

Although DOLS were introduced with good intentions, the situation is now out of control. The police, GPs and coroners are overloaded, local authorities are spending millions of pounds from reserves, grieving relatives are in terrible distress and two thirds of all applications are not being processed, meaning that some people are not being protected by a DOLS and could be having their liberty curtailed unnecessarily. Frankly, this is a tsunami and it is fast sweeping over us. We cannot wait until 2017 for the Law Commission review. We need a solution urgently.

There is also concern that some applications are unnecessary. Care home residents have differing capacities and the fact that a care home has some locked doors does not mean that every resident, as a matter of course, should be referred for a DOLS. The Care Quality Commission has an important role to play as an inspectorate to ensure that there is proper understanding of the Mental Capacity Act and DOLS among care providers, as well as an understanding that they need to provide environments that are flexible to residents’ needs, so as to ensure the greatest liberty consistent with their capacity. I welcome the CQC inspection regime of adult care that began in April 2014.

Care England represents independent care providers. Its main concern is the time it takes to process assessments, which has led to many providers being placed in a position in which their services are being inspected by the CQC yet they do not have DOLS authorisations in place for all the residents who should have them. Care England also stresses that the delay in burials caused by waiting for inquests is upsetting cultural norms. For example, there are care homes solely for members of the Jewish faith, whose beliefs require a quick burial after death. If the coroner has to carry out a full investigation, that will preclude the family from being able to carry out a quick burial.

I suggest the following way forward to the Minister. The Law Commission review should be speeded up and conducted urgently, before 2017. In the meantime, opportunities should be taken to change the law to make it clear that not all deaths need an inquest. The Chief Coroner should be invited to look again at his guidance and review it in relation to state detention and automatic inquests. The Minister could consider mounting a legal challenge to the Chief Coroner’s guidance on behalf of all those adversely affected by the administration of DOLS, including those residents in care homes whose applications have not yet been processed. Perhaps the Government might consider whether state detention should now be statutorily defined and finally conduct an urgent review of the DOLS regulations to simplify this bureaucratic and time-consuming system—for example, the fact that DOLS have to be reassessed automatically every 12 months.

The system takes a sledgehammer approach, which is not remotely sensitive, and the issue has aroused widespread concern. My concern, on behalf of my constituents, is that when their loved ones die in a care home they should not have their grief exacerbated. They have often spent months deliberating about admitting their relatives to a home and feel guilty that they cannot care for them themselves. The process now surrounding the death of a person subject to DOLS adds immeasurably to their distress. When someone asks, “How did your mother die?”, who wants to reply, “In state detention.”? The situation must be resolved.

It is a pleasure to serve under your chairmanship once again, Mr Davies. I thank the hon. Member for Stockport (Ann Coffey) not only for raising an issue that she is closely involved in and has a great deal of knowledge about, but for kindly sending my office a copy of her speech to enable us to give the best possible response. I appreciate both that and the detailed but measured way in which she presented what has become a very difficult situation. She quoted the Chief Coroner as saying that

“the consequences of the law, however, may not have been appreciated at the time of enactment.”

If we all had £1 for every time that phrase was uttered, we would all be fairly rich. In answer to his quote, I would say, “You bet they weren’t,” but let me develop my argument further.

I welcome the opportunity to provide clarity and more information about what my Department is doing to support professionals in relation to DOLS. DOLS derive from the simple premise that a person who may lack capacity through a mental health disorder and is receiving care and support from the state has as much right to freedom of movement and choice as someone with full capacity. The background to DOLS is not always appreciated, but it is important, and I doubt that there is any difference between the hon. Lady and I on that point.

The phrase “deprivation of liberty” is, like “state detention”, an emotive one and derives from the legal framework. It may seem counterintuitive, but in some circumstances, a deprivation of liberty can be entirely appropriate in providing care and treatment for an individual who may lack capacity. Furthermore, it is worth emphasising that DOLS are firmly based within the Mental Capacity Act and, as such, reflect the Act’s core principles: namely, that a person’s wishes and feelings must be central to the decision-making process, and that the least restrictive form of care and treatment should be pursued wherever possible.

I stress that DOLS are a positive tool in that the assessments undertaken ensure that when a person is—in the legal sense—deprived of their liberty, it must be in their best interests. I entirely agree with the hon. Lady that where DOLS are working effectively, they can prevent unnecessary restrictive measures and prevent people with dementia from being required to stay in one place simply because it is easier for staff.

As the hon. Lady said, until March 2014 the number of DOLS assessments a year was approximately 13,000. The Care Quality Commission noted in its annual reports that that figure seemed low. Then, in March 2014, in the case of Cheshire West, the Supreme Court clarified the law on what constitutes a deprivation of liberty by setting out a so-called acid test. I will not repeat that test now because the hon. Lady and the House know it well, but it is clear that the effect of the Supreme Court judgment has been to lower the threshold for what constitutes a deprivation of liberty when compared with previous standard professional practice. Official statistics from the Health & Social Care Information Centre have borne that out, showing that there have been 113,000 applications in 2014-15—roughly a tenfold increase on the previous year.

I will turn to the wider issues related to that in a moment, but let me concentrate first on the implications for coroners, which the hon. Lady spent the majority of time dealing with in her speech. The Supreme Court’s judgment had a number of unforeseen implications. One, which I know to be of particular concern to her, is the rise in coroners’ investigations.

The Chief Coroner for England and Wales has provided guidance to coroners in which he states his view that, under the Coroners and Justice Act 2009, the death of a person who is subject to a DOLS authorisation is regarded as a “death in state detention” and, as such, should be subject to a coroner’s investigation. Helpfully however, the Chief Coroner states that coroners are able to make their own judgment on that matter. He also states that, where appropriate, any inquest could be paper-based and certainly that neither a jury inquest nor a post mortem is required. None the less, I have heard distressing reports of coroners’ investigations leading to unforeseen delays in funeral arrangements and causing great anguish for relatives.

The Department has issued guidance urging local authorities to work closely with their coroner to develop a proportionate response. I am aware that many have done so and, for the time being, that may be the way through the difficulties. I can tell the hon. Lady today that my Department will issue further guidance on this specific matter in the next few weeks. Furthermore, I commit to writing to the Chief Coroner to ensure that we are doing all we can to encourage an approach that minimises the potential distress to relatives.

As I think I said in my speech, part of the problem is that the Chief Coroner is a judge and his guidance is seen as a question of law. If he could perhaps make it clearer that he is giving discretion to coroners, that might also help move things forward. Might the Minister take that up with the Chief Coroner?

The hon. Lady, in her concluding remarks, suggested that there might be a legal challenge to the Chief Coroner, but at this stage, I am not persuaded that that would be the best way forward. Perhaps we might leave it at this: depending on the Chief Coroner’s response to my letter, I might seek a meeting with him, so that I might have the opportunity to talk to him in a slightly different manner about some problems that the hon. Lady has raised and get an opportunity to take things further. I ought to get the Chief Coroner’s written response in the first place, but I appreciate her point of view.

We want to encourage an approach that minimises relatives’ potential distress, which, as the hon. Lady set out, can be severe. The key to best practice is good communication and information exchange between partners in the system. Leicester City Council is indicative of a local authority that has worked closely with its local coroner. Together they have designed a shared protocol that includes the clear steer that, unless there are suspicious circumstances, notification of a death can wait until office hours, negating the need for distressing out-of-hours visits from uniformed police officers. In the vast majority of those cases, police involvement will not be necessary. Certainly, 999 calls are not appropriate.

I am grateful to the hon. Lady for stressing the importance of this issue. The Law Commission, which I will refer to in a second, is also looking at the issue of coroners’ investigations, and I want to see the results of that.

Let me say more about the Law Commission, having dealt with coroners to an extent. The Government’s policy is twofold in dealing with the significant challenge that has been given to local authorities and health and care providers now charged with implementing DOLS. First, we seek to understand whether legislative change can provide a system that is sustainable in the long term and that better balances the protection of individuals against the need for minimum bureaucracy to ensure that existing limited resource is maximised. Secondly, we are seeking to provide practical support and guidance to manage the challenges in the interim.

The case for a thorough review of the legislation in this area is unambiguous. The legislation underpinning DOLS was introduced by the then Government in 2007. It was criticised by Select Committees of both Houses, even before the implications of the Supreme Court judgment became clear. Following the judgment, the Government are funding the independent Law Commission to review the legislation underpinning DOLS. It will launch a four-month public consultation on a proposed new scheme on 7 July 2015.

Following the hon. Lady’s intervention, it has occurred to me that she and other parliamentary colleagues may appreciate a dedicated consultation event with the Law Commission on the parliamentary estate. If she agrees, I shall endeavour to make arrangements for that. I will contact the Law Commission to suggest such an event and I hope that it might want a session here so that it can listen to the expertise of colleagues. I am sure the commission would benefit from such expertise, and I will write to her and let her know what it makes of that suggestion.

Given the criticism of the current DOLS legislation, and bearing in mind the likelihood of unintended consequences, I strongly believe that it is important for the Law Commission to be given the time to consider the entire legislation in the round and, if appropriate, propose a comprehensive solution. It would be unwise to rush into specific legislative changes, the repercussions of which might not be clear, so I am not tempted at the moment to make any changes to the regulations.

However, I agree with the hon. Lady on greater urgency. The Law Commission’s review was scheduled to be completed, in the form of detailed policy proposals and a draft Bill, in the summer of 2017. I think, having taken up my duties, that that needs to happen quicker. Accordingly, I have proposed, and the Law Commission has agreed, an acceleration of the review to ensure that it will now be completed, in the form of detailed policy proposals and a draft Bill, by the end of 2016. I know that that is still some time away, but bearing in mind the complexity of the issue, I do not think we can afford to get the next bite at this wrong, so I hope that the hon. Lady welcomes that news.

In the interim, my Department has been working with various partners to support the system’s response to the Supreme Court judgment. I reiterate now that the response to that judgment must be rooted in the principles and values of the Mental Capacity Act. Our efforts have to be focused primarily on realising real benefits for individuals. DOLS are about people, not paperwork. My Department has issued clear guidance that has emphasised the importance of a proportionate Mental Capacity Act-centred approach, and emphasised that so-called bulk applications for all the residents of a care home are not acceptable. DOLS apply only to those who lack the specific capacity to consent to their accommodation. Many in care homes and hospitals will have that capacity and so not be eligible for DOLS. That must be made clear.

We recognise that the scale of the challenge set by the Supreme Court means that some local authorities will be unable to process DOLS applications within the 21-day legal timeframe. The Care Quality Commission has been clear that providers will not be unfairly punished for such technical breaches. However, the CQC has been equally clear, quite rightly, that a do-nothing approach is unacceptable, so providers and local authorities must have a plan in place for ensuring that those who stand to benefit most from a DOLS assessment receive one in a timely manner.

The Department has funded a reduction in the non-statutory bureaucracy accompanying the DOLS process, reducing the number of application forms from 32 to 13. The Association of Directors of Adult Social Services, which delivered that project, deserves particular praise for the support it has provided to its member organisations since the Supreme Court judgment.

The Department has funded the Law Society to produce excellent comprehensive guidance, in collaboration with practitioners, to assist in identifying a true deprivation of liberty, and in March this year, the Government announced that they would provide local authorities with an extra £25 million to support their efforts on DOLS in 2015-16.

I reassure the hon. Lady that I understand the concerns that some local authorities have about the cost of DOLS, and I praise the hard work of local DOLS teams. However, I am aware that there is considerable variation among local authorities as regards the number of applications that they have been able to process. Clearly, it is important that we identify and learn from current best practice, so my officials are in close contact with providers and local authorities, and I have instructed them to make further visits across England this summer to continue to understand the local response.

Although some may baulk at the idea of 100,000 DOLS applications a year, we should remember that every one of those applications represents a person having their care independently scrutinised. DOLS can help to shine a light on care that is unnecessarily restrictive and does not put the person’s views first and foremost. Therefore, we should strongly back the principles of DOLS. Our shared challenge now is, through the Law Commission review, to understand how those principles can be better applied in the day-to-day reality of the health and care system and after the unintended consequences of the judgment.

I thank the hon. Lady for raising these important issues. My Department and I would be grateful for any further insight she may have, conscious as we are of her expertise in the social care field. I hope that we have touched this afternoon—