The Court of Protection’s judgment in London Borough of Hillingdon v Neary (2011) illustrates the risks of implementing significant care planning decisions without recourse to the Court of Protection and how inadequate best interests assessments can render detention unlawful.

The court examined the lawfulness of Steven Neary’s residence in a support unit, where he resided from January to December 2010. Steven is a 21-year-old man with autism and a severe learning disability. He had lived with, and was cared for by, his father, Mr Neary. The London Borough of Hillingdon (the local authority) arranged care services to support Steven, both at home and in the form of respite care. In January 2010 Steven was placed in a residential unit (the support unit) for a short period of respite care. However, the local authority then decided to continue Steven’s residence at the support unit, refusing to return him to his father’s care.

Between April and December 2010 Steven’s residence at the support unit was subject to authorisations under the Deprivation of Liberty Safeguards (DOLS) scheme. Steven’s father challenged the local authority’s plans and the DOLS authorisation. Mr Neary was told by the local authority that he could take the matter to the Court of Protection if he wished to dispute the DOLS authorisations that had been granted.

There was much discussion between the parties and Mr Neary’s opposition to the placement was consistently stated by him however the local authority did not issue an application in the Court of Protection until late October 2010.

The court concluded that, despite the DOLS authorisations, Steven’s residence at the support unit throughout 2010 amounted to an unlawful deprivation of his liberty. The court’s judgment in the case provides important guidance on several topics, including:

  • The scope and purpose of the DOLS scheme.
  • The purpose and importance of best interests assessments in the DOLS scheme.
  • The role of supervisory bodies in the DOLS scheme.
  • The need to refer disputes to the Court of Protection.

Disputes about care: scope and purpose of DOLS scheme and referral to court

This case illustrates the importance of not confusing (i) the issue of lawful deprivation of liberty, with (ii) the appropriateness (and lawfulness) of a care planning decision that potentially interferes with rights under Article 8 of the European Convention on Human Rights (ECHR), the right to respect for private and family life.

The DOLS scheme is designed only to address the first issue, and is not a mechanism for resolving wider disputes, such as disagreements as to whether someone should live at home or in residential care, which engages Article 8 issues.

The court observed that the DOLS scheme is to be used to permit the detention of an individual at a particular place. However it must not be used by an authority to “get its own way” on the question of whether it is in the person’s best interests to be in that place at all. If there is a dispute as to whether the individual should be in the place at all, the matter should be referred to the Court of Protection.

As the DOLS authorisations did not adequately address the underlying dispute as to whether Steven should have been in the support unit at all, it followed that that dispute should have been resolved by other means ie, in the Court of Protection.

The court stressed that the burden is on the authority to show that the arrangements it seeks to put in place (instead of those offered by family members) are better, and a step towards discharging that burden is providing a forum for discussion on the issue. The burden is not discharged by allowing the situation to continue by default where, for example, relatives lack the desire or financial resources to pursue litigation to resolve the dispute.

The court decided that the local authority’s failure to refer the question of Steven’s residence to the court led to it breach Steven’s rights under Article 5 of the ECHR. Article 5 protects individuals’ right to liberty and Article 5(4) provides that, where an individual is deprived of their liberty, they should have the right to challenge their detention before a court.

The court concluded that Steven’s rights under Article 5(4) were not sufficiently protected by the local authority saying, in effect, that his father could issue court proceedings if he (Steven’s father) was unhappy. The court stated that a person deprived of their liberty must be entitled and enabled to have the lawfulness of their detention reviewed by the court. In this case, the lack of an IMCA, the lack of an effective review and the considerable delay in issuing proceedings to determine the lawfulness of Steven’s detention, amounted to a breach of Article 5(4).

DOLS scheme – best interests assessments/supervisory bodies

As well as stating that the DOLS scheme was inappropriately used here to try and enforce the local authority’s care planning decision, the court also held that Steven’s deprivation of liberty had not been lawful, despite the existence of several authorisations under the DOLS scheme.

The DOLS authorisation process demands consideration as to whether the deprivation of liberty is in the individual’s best interests. The best interests assessment (BIA) demands, amongst other things, analysis as to whether the individual’s best interests could be met in a less restrictive way, so as to avoid the need for a deprivation of liberty.

In this case the court held that all of the DOLS authorisations were invalid because the BIAs were flawed. The court criticised the supervisory body (also the local authority in this case) for authorising the DOL without adequately scrutinising and challenging the defective assessments.

The court observed that the BIAs were inadequate because they (i) did not mention Steven’s desire to go home, (ii) did not mention Mr Neary’s request for Steven to return home and (iii) did not mention return home as an option to avoid a DOL occurring at all (however, in the case of the last BIA, return was mentioned but it was not adequately explored by the BI assessor).

The need to address possible alternative care options at the BIA stage is clear. In cases where there is a dispute as to whether someone should be in a particular care home, or should return home, the possibility of return home needs to be considered if that option is one way in which the DOL could be avoided.

The court’s judgment provides a helpful reminder, if one was needed, of the central importance of BIAs. The judge referred to BIA being the “cornerstone” of very important protection, which the DOLS scheme seeks to provide. Without thorough and reasoned BIAs, the scheme will not provide any adequate protection for the vulnerable people it was designed to protect.

Supervisory authorities should also remember that their role is to carefully scrutinise BIAs, not to rubber stamp them. Supervisory authorities must not authorise a DOL unless satisfied that the BIA is a thorough piece of work. Authorisations granted on inadequate BIAs will be invalid and any deprivation of liberty brought about in reliance on the authorisation will be unlawful.

Conclusion

This important case, which has attracted significant media attention, provides very useful reminders to all who are concerned with the DOLS scheme and care planning for people who lack mental capacity. Best interests assessors, managing and supervisory authorities need to carefully consider the guidance provided.

Local authorities and NHS organisations should avoid delay in referring unresolved disputes, about significant matters such as residence, to the Court of Protection. Although there will still be a role for local discussion between relatives and professionals, statutory agencies must be alert to genuine disagreement and must not, as here, seek to obstruct or sideline genuine disagreement on matters which have a significant impact on an individual’s rights.

The court recognised the difficulty that professionals working in this area face. The judge pointed out that “anyone who believes that the work is simple and the right decisions are always obvious is mistaken”. That said, well intentioned actions will not be a defence to illegality. So authorities, charged with caring for vulnerable incapacitated adults, need to carefully consider the lawfulness of their interventions.