Age and Ageing 2015; 44: 2–3 © The Author 2014. Published by Oxford University Press on behalf of the British Geriatrics Society. doi: 10.1093/ageing/afu178 All rights reserved. For Permissions, please email: [email protected] Published electronically 10 November 2014
EDITORIALS
Bournewood revisited—do recent changes to the law regarding Deprivation of Liberty Safeguards represent an opportunity or an opportunity cost?
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external scrutiny and to protect the civil liberties of the most vulnerable adults. For others, they represented a burden of work for health and social care sectors already overstretched and under-resourced, with the potential for patient care to be jeopardised as a consequence of time spent on the new safeguards [5]. The Code of Practice for DoLS [6] turned out be quite vague. It suggested that DoL had occurred only if the extent and duration of restriction ‘amounted to’ deprivation, ‘taking into account’: the use of sedation or physical restraint; refusal to release a person to the care of others; restricting visiting rights or loss of autonomy due to constant supervision and control. In practice, care professionals frequently argued that the restriction in place was insufficient to amount to DoL and the anticipated tsunami of work never occurred. Case law, however, supervened. P was a man with learning disabilities who had one-to-one care in a supported bungalow, enabling him to undertake outings and activities. However, he wore a restrictive body suit to prevent self-harming. MIG and MEG were sisters with profound learning disabilities. MIG lived with a foster family, to whom she was devoted. MEG lived in a care home but went on outings and to college. Their cases were reviewed in April 2014 by the UK Supreme Court. In that judgement, Lady Hale stated that ‘what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place … and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person’. She added: ‘a gilded cage is still a cage’ [7]. People may be justifiably deprived of their liberty if it is in their best interests, and they may be happier and better cared for if they are. But it remains a DoL and must be subject to safeguards. The effect of these rulings has been to extend DoLS in England and Wales to the domestic setting (when the Court of Protection must authorise the DoL) and to any patient who would be refused the right to move freely, even if they had not asked to do so, or were incapable of doing so. The potential consequences of this are enormous, given the number of patients across all settings who have their movements restricted due to safety concerns in the context of cognitive impairment. Following the Supreme Court judgement, the Association of Directors of Adult Social Services (ADASS) have reported a 10-fold increase in DoLS referrals, from 10,184 in 2013/14 to 112,533 in 2014/15, at an
Downloaded from http://ageing.oxfordjournals.org/ at Arizona Health Sciences Library on July 25, 2015
Cognitive impairment affects over 50% of over 75s admitted to hospital [1], up to 75% of care home residents [2] and around 550 000 adults living at home in the United Kingdom (http://www.alzheimers.org.uk/site/scripts/documents_info. php?documentID=341). Many lack capacity to decide on accommodation or hospital admission. Good health and social care for the vulnerable is a moral imperative, while cost-effective care is an economic one. At times, uncomfortable tensions emerge, including threats to civil liberty. In the landmark Bournewood judgment, the European Court of Human Rights stated that, ‘… in order to determine whether there has been a deprivation of liberty, the starting-point must be the concrete situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. 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.’ [3]. The Bournewood judgment concerned a man with learning difficulties, who lacked capacity to consent to admission to hospital but who was admitted in his best interests and did not object to being there. The Court determined that informal delineation of best interests by health and social care professionals, without right to review or appeal, was in breach of his human rights. The principles of this determination are enacted in different ways within different European countries—and differently in the various UK home nations, each of which have different legislative frameworks. However, in all countries, deprivation of liberty (DoL) in the course of hospitalisation or care home placement has become a ‘hot topic’. The response to the Bournewood judgement in England and Wales represents a useful case study of the principles at stake and the tensions between them. Amendments to the Mental Capacity Act [4] were passed to introduce Deprivation of Liberty Safeguards (DoLS). DoLS require that, where an individual who lacks capacity is deprived of their liberty, an application should be made to a ‘supervisory body’—the local authority in England and either the local authority or relevant health board in Wales—for authorisation to accommodate the individual. The supervisory body assesses the person’s capacity and best interests, reviews the planned care and determines whether detention is appropriate. For enthusiasts, DoLS were seen as an opportunity to subject decisions about DoL made under best interests to
Editorials
Key points • The right to liberty is identified in, among other treaties, Article 5 of the European Convention on Human Rights 1950 (ECHR). Member States have an obligation to ensure that this right is respected and protected. • Deprivation of liberty issues affect older individuals who may require care or treatment that involves hospitalisation or care home placement. • DoLS in England and Wales now also extend to noninstitutionalised adults lacking mental capacity and to patients who would be denied right to leave a venue of care, even if they have not sought to leave. • The number of DoLS applications in England and Wales have increased 10-fold since these changes in April 2014.
• Although the workload and cost implications for health and social care are considerable, it is hoped that use of safeguards will help to protect the liberty of vulnerable older adults.
Conflicts of interest None declared. ADAM L. GORDON1,2,, SARAH E. GOLDBERG1,3, ROWAN H. HARWOOD1,2 1 Division of Rehabilitation and Ageing, University of Nottingham, Nottingham NG7 2RD, UK 2 Department of Health Care of Older People, Nottingham University Hospitals NHS Trust, Nottingham NG7 2UH, UK 3 School of Health Sciences, University of Nottingham, Nottingham NG7 2RD, UK Address correspondence to: A. L. Gordon. Tel: (+44) 01159249924, Ext. 64186. Email: [email protected]
References 1. Goldberg SE, Whittamore KH, Harwood RH et al. The prevalence of mental health problems among older adults admitted as an emergency to a general hospital. Age Ageing 2012; 41: 80–6. 2. Gordon AL, Franklin M, Bradshaw L et al. Health status of UK care home residents: a cohort study. Age Ageing 2014; 43: 97–103. 3. H. L. v. UK [2005] ECHR. 4. Mental Capacity Act 2005. London: Stationery Office, 2005. 5. Harwood RH, Stewart R, Bartlett P. Safeguarding the rights of patients who lack capacity in general hospitals. Do the Bournewood proposals for England and Wales help or hinder? Age Ageing 2007; 36: 120–1. 6. Ministry of Justice. Deprivation of Liberty Safeguards: Code of Practice to Supplement the Main Mental Capacity Act 2005 Code of Practice. London: The Stationery Office, 2008. 7. P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents); P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent) [2014] UKSC 19 On, available online at http://supremecourt.uk/decided-cases/ docs/UKSC_2012_0068_Judgment.pdf (9 October 2014, date last accessed). 8. Cox S, Grant N. Deprivation of Liberty—guidelines from the Supreme Court. Health Serv J 2014. http://www.hsj.co.uk/ leadership/insight-and-influence/deprivation-of-liberty-guidelinesfrom-the-supreme-court/5069586.article (9 October 2014, date last accessed).
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Downloaded from http://ageing.oxfordjournals.org/ at Arizona Health Sciences Library on July 25, 2015
estimated additional cost of £45 million (http://www.adass. org.uk/number-of-dols-referrals-rise-tenfold-sincesupreme-court-ruling-jun-14/). This comes while local authorities are cutting social care for adults with dementia as a consequence of governmental austerity. ADASS are right to highlight the cost of an increasing number of applications. The cost is financial—in terms of hours spent preparing, processing and reviewing DoLS applications—and opportunistic. The tensions here are, essentially, Bournewood revisited. A DoLS system struggling under the weight of additional applications could miss people at risk, while diversion of already-inadequate resources from care delivery would be difficult to justify. This could represent yet another chore to burden hard-pressed clinicians and social care professionals. The National Health Service, meanwhile, has yet to issue a response. No guidance has been forthcoming from the Department of Health or NHS England. Hospitals have been advised to seek legal advice (and may be liable for damages if they do not follow the new rules) [8]. It’ is just possible, though, that by focusing on the potential opportunity costs, the health and social care community are missing an opportunity, presented for the second time by the Supreme Court, to get protection of civil liberties for vulnerable older people in England and Wales right. If care arrangements for incapacitous adults deprived of their liberty are to be subjected to careful and objective external scrutiny, then this could be a potentially potent mechanism to raise the profile of an under-recognised group and enable the re-prioritisation of resources to deliver the care that European law demands. Anything that helps to drive such an agenda could be a force for good. The tensions at play are by no means unique to England and Wales—how this jurisdiction responds to the challenge before it will be instructive.
EDITORIALS
Bournewood revisited—do recent changes to the law regarding Deprivation of Liberty Safeguards represent an opportunity or an opportunity cost?
2
external scrutiny and to protect the civil liberties of the most vulnerable adults. For others, they represented a burden of work for health and social care sectors already overstretched and under-resourced, with the potential for patient care to be jeopardised as a consequence of time spent on the new safeguards [5]. The Code of Practice for DoLS [6] turned out be quite vague. It suggested that DoL had occurred only if the extent and duration of restriction ‘amounted to’ deprivation, ‘taking into account’: the use of sedation or physical restraint; refusal to release a person to the care of others; restricting visiting rights or loss of autonomy due to constant supervision and control. In practice, care professionals frequently argued that the restriction in place was insufficient to amount to DoL and the anticipated tsunami of work never occurred. Case law, however, supervened. P was a man with learning disabilities who had one-to-one care in a supported bungalow, enabling him to undertake outings and activities. However, he wore a restrictive body suit to prevent self-harming. MIG and MEG were sisters with profound learning disabilities. MIG lived with a foster family, to whom she was devoted. MEG lived in a care home but went on outings and to college. Their cases were reviewed in April 2014 by the UK Supreme Court. In that judgement, Lady Hale stated that ‘what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place … and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person’. She added: ‘a gilded cage is still a cage’ [7]. People may be justifiably deprived of their liberty if it is in their best interests, and they may be happier and better cared for if they are. But it remains a DoL and must be subject to safeguards. The effect of these rulings has been to extend DoLS in England and Wales to the domestic setting (when the Court of Protection must authorise the DoL) and to any patient who would be refused the right to move freely, even if they had not asked to do so, or were incapable of doing so. The potential consequences of this are enormous, given the number of patients across all settings who have their movements restricted due to safety concerns in the context of cognitive impairment. Following the Supreme Court judgement, the Association of Directors of Adult Social Services (ADASS) have reported a 10-fold increase in DoLS referrals, from 10,184 in 2013/14 to 112,533 in 2014/15, at an
Downloaded from http://ageing.oxfordjournals.org/ at Arizona Health Sciences Library on July 25, 2015
Cognitive impairment affects over 50% of over 75s admitted to hospital [1], up to 75% of care home residents [2] and around 550 000 adults living at home in the United Kingdom (http://www.alzheimers.org.uk/site/scripts/documents_info. php?documentID=341). Many lack capacity to decide on accommodation or hospital admission. Good health and social care for the vulnerable is a moral imperative, while cost-effective care is an economic one. At times, uncomfortable tensions emerge, including threats to civil liberty. In the landmark Bournewood judgment, the European Court of Human Rights stated that, ‘… in order to determine whether there has been a deprivation of liberty, the starting-point must be the concrete situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. 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.’ [3]. The Bournewood judgment concerned a man with learning difficulties, who lacked capacity to consent to admission to hospital but who was admitted in his best interests and did not object to being there. The Court determined that informal delineation of best interests by health and social care professionals, without right to review or appeal, was in breach of his human rights. The principles of this determination are enacted in different ways within different European countries—and differently in the various UK home nations, each of which have different legislative frameworks. However, in all countries, deprivation of liberty (DoL) in the course of hospitalisation or care home placement has become a ‘hot topic’. The response to the Bournewood judgement in England and Wales represents a useful case study of the principles at stake and the tensions between them. Amendments to the Mental Capacity Act [4] were passed to introduce Deprivation of Liberty Safeguards (DoLS). DoLS require that, where an individual who lacks capacity is deprived of their liberty, an application should be made to a ‘supervisory body’—the local authority in England and either the local authority or relevant health board in Wales—for authorisation to accommodate the individual. The supervisory body assesses the person’s capacity and best interests, reviews the planned care and determines whether detention is appropriate. For enthusiasts, DoLS were seen as an opportunity to subject decisions about DoL made under best interests to
Editorials
Key points • The right to liberty is identified in, among other treaties, Article 5 of the European Convention on Human Rights 1950 (ECHR). Member States have an obligation to ensure that this right is respected and protected. • Deprivation of liberty issues affect older individuals who may require care or treatment that involves hospitalisation or care home placement. • DoLS in England and Wales now also extend to noninstitutionalised adults lacking mental capacity and to patients who would be denied right to leave a venue of care, even if they have not sought to leave. • The number of DoLS applications in England and Wales have increased 10-fold since these changes in April 2014.
• Although the workload and cost implications for health and social care are considerable, it is hoped that use of safeguards will help to protect the liberty of vulnerable older adults.
Conflicts of interest None declared. ADAM L. GORDON1,2,, SARAH E. GOLDBERG1,3, ROWAN H. HARWOOD1,2 1 Division of Rehabilitation and Ageing, University of Nottingham, Nottingham NG7 2RD, UK 2 Department of Health Care of Older People, Nottingham University Hospitals NHS Trust, Nottingham NG7 2UH, UK 3 School of Health Sciences, University of Nottingham, Nottingham NG7 2RD, UK Address correspondence to: A. L. Gordon. Tel: (+44) 01159249924, Ext. 64186. Email: [email protected]
References 1. Goldberg SE, Whittamore KH, Harwood RH et al. The prevalence of mental health problems among older adults admitted as an emergency to a general hospital. Age Ageing 2012; 41: 80–6. 2. Gordon AL, Franklin M, Bradshaw L et al. Health status of UK care home residents: a cohort study. Age Ageing 2014; 43: 97–103. 3. H. L. v. UK [2005] ECHR. 4. Mental Capacity Act 2005. London: Stationery Office, 2005. 5. Harwood RH, Stewart R, Bartlett P. Safeguarding the rights of patients who lack capacity in general hospitals. Do the Bournewood proposals for England and Wales help or hinder? Age Ageing 2007; 36: 120–1. 6. Ministry of Justice. Deprivation of Liberty Safeguards: Code of Practice to Supplement the Main Mental Capacity Act 2005 Code of Practice. London: The Stationery Office, 2008. 7. P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents); P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent) [2014] UKSC 19 On, available online at http://supremecourt.uk/decided-cases/ docs/UKSC_2012_0068_Judgment.pdf (9 October 2014, date last accessed). 8. Cox S, Grant N. Deprivation of Liberty—guidelines from the Supreme Court. Health Serv J 2014. http://www.hsj.co.uk/ leadership/insight-and-influence/deprivation-of-liberty-guidelinesfrom-the-supreme-court/5069586.article (9 October 2014, date last accessed).
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Downloaded from http://ageing.oxfordjournals.org/ at Arizona Health Sciences Library on July 25, 2015
estimated additional cost of £45 million (http://www.adass. org.uk/number-of-dols-referrals-rise-tenfold-sincesupreme-court-ruling-jun-14/). This comes while local authorities are cutting social care for adults with dementia as a consequence of governmental austerity. ADASS are right to highlight the cost of an increasing number of applications. The cost is financial—in terms of hours spent preparing, processing and reviewing DoLS applications—and opportunistic. The tensions here are, essentially, Bournewood revisited. A DoLS system struggling under the weight of additional applications could miss people at risk, while diversion of already-inadequate resources from care delivery would be difficult to justify. This could represent yet another chore to burden hard-pressed clinicians and social care professionals. The National Health Service, meanwhile, has yet to issue a response. No guidance has been forthcoming from the Department of Health or NHS England. Hospitals have been advised to seek legal advice (and may be liable for damages if they do not follow the new rules) [8]. It’ is just possible, though, that by focusing on the potential opportunity costs, the health and social care community are missing an opportunity, presented for the second time by the Supreme Court, to get protection of civil liberties for vulnerable older people in England and Wales right. If care arrangements for incapacitous adults deprived of their liberty are to be subjected to careful and objective external scrutiny, then this could be a potentially potent mechanism to raise the profile of an under-recognised group and enable the re-prioritisation of resources to deliver the care that European law demands. Anything that helps to drive such an agenda could be a force for good. The tensions at play are by no means unique to England and Wales—how this jurisdiction responds to the challenge before it will be instructive.
