For whose benefit?  

When Alex asked me to contribute to this issue of the Newsletter about the implications of the judgment of the Supreme Court in Cheshire West he no doubt expected to receive the views of a (now retired) district judge who sat in the former and the present Court of Protection. I make no apology for disappointing him. Instead I wish to put on record my views as parent of a child with severe learning disabilities and challenging behaviour who encountered almost all forms of adult care before dying in the Bournewood gap at the age of 28 years due to inadequate supervision.

Such parents seek the re-assurance of suitable care for the life of their child, but whilst there are many examples of quality care for those who are compliant there is scarce good provision for those who are not. This is partly due to lack of adequate funding for what may need to be one-to-one care, but there is also a shortage of professional carers with the skills and tolerance required to cope with the demands made upon them. It goes without saying that these (adult) children need total supervision and cannot make their own choices as to the care regime even if they can indicate some preferences within it. The same might be said of elderly adults with severe dementia. The Deprivation of Liberty safeguards (DoLS) have nothing to offer them and seem little more than a sham to the parents, being designed to reassure society and the lawyers that personal human rights have not been infringed whilst failing to ensure that suitable care provision has indeed been achieved. Even the Court of Protection is impotent in this respect because in making a best interests decision for the individual it is restricted to the care plan or plans put forward by the funding authority, although an enterprising judge can seek reports as to what other options have been considered and why they have been rejected. In one of my last cases I even threatened to invite the press in to the ‘secret court’ to hear an explanation as to why only institutional care was being proposed for a young man whose whole future was in question. The court of public opinion may be more powerful than the judge’s court!

For these adults what really matters is the package of care provision that is to be provided rather than the somewhat academic issue as to whether they are justifiably being deprived of their liberty. It upsets me as a parent  to see so  much of the available funding being spent on this issue on a periodic basis. For whose benefit is that? The parents have no confidence that those involved in the assessment process are concerned with securing better care provision, and would be appalled if there was no effective restriction on the liberty of their mentally incapacitated child. The problem is that the ‘best interests’ assessor is merely required to determine whether it is in the best interests of the individual to be detained in this way, not whether it is in his or her best interests to accept this particular care package. In any event, I cannot believe that an assessor under the DoLS process has any more influence on the nature of care provision than a judge of the Court of Protection.

Certainly safeguards are required for some vulnerable adults, but for those like my son I would sooner see all this professional expertise expended on securing  adequate care provision rather than justifying the fact that he was confined for most of his time between four walls.

So what was my approach as a judge? I simply concentrated upon the care options that could be available and sought to achieve what appeared to be in the ‘best interests’ of the adult. The balance between empowerment and protection is always difficult especially when a young life is involved, and there is a difference which has to be coped with between the perspective of the parents and that of professional care workers. I love the expression: ‘What is the point of wrapping someone up in cotton wool if it merely makes them miserable?’ When there was a dispute I sometimes, but not always, supported the authorities against the parents but only after strenuous efforts to achieve a consensus by mediation or conciliation or any other form of discussion. Unless there was a specific application relating to DoLS (and in my day these were reserved to High Court Judges) I treated these safeguards as a parallel process and declined to become involved.

I have no doubt that the approach of Lady Hale in the Supreme Court is the only possible interpretation of the present legislation despite the understandable efforts of the Court of Appeal to reduce the number of people to whom the safeguards applied. The practical and funding issues that now arise are such that a re-think is inevitable. In my view the question should, in layman’s terms, be: ‘Is this adult being justifiably and appropriately cared for’, rather than is he or she being improperly deprived of personal liberty. The emphasis should shift towards whether the care being provided meets all the needs of the individual because that can be the only proper justification for depriving someone of their liberty. If the safeguards had been in existence when my son died the outcome should have been a better standard of care rather than mere acquiescence in that which was being provided because a deprivation of liberty was justified. We all knew that.

Gordon R Ashton OBE
Co-author of Mental Handicap & the Law (1995),
Mental Capacity – Law & Practice (2012), Elderly

People & the Law (2nd ed. 2014)