In this article we consider some of the practical issues around DoLS that have arisen since the Supreme Court's decision in the conjoined appeals P v Cheshire West and Chester Council  UKSC 19 and P&Q v Surrey County Council.
The decisions were handed down on 19 March 2014 and established that all people who lack the capacity to make decisions about their care and residence who are:
(a) under the responsibility of the state,
(b) are subject to continuous supervision and control; and
(c) lack the option to leave their care setting
are deprived of their liberty. The Supreme Court also took the opportunity to reject previous judgments that had defined deprivation of liberty more restrictively. The person’s compliance or lack of objection to their placement, the purpose of it or the extent to which it enables them to live a relatively normal life for someone with their level of disability were all irrelevant to whether they were deprived of their liberty.
The judgment has seen an increase in DoLS case numbers regarding care home placements and applications to the Court of Protection to authorise deprivations of liberty in supported living. In addition, it has presented a number of practical problems for providers, particularly in relation to palliative care and patients in a comatose state. Going through the DoLS process is understandably rigorous and involves six different assessments. It is not difficult to see why healthcare professionals feel this may be inappropriate, causing additional distress to patients and their families in very difficult circumstances.
In an attempt to strike a balance between safeguarding individuals and preventing undue distress, the Department of Health has issued guidance to social workers seeking to establish that:
- Just because someone physically cannot leave does not mean that that they are unable to leave for the purposes of the test. They may, for example be able to leave with family assistance.
- If an individual is in a private room and checked every few hours, they may not be under constant control and supervision.
- Where a person receiving palliative care has the capacity to consent to arrangements about their care and does consent, there is no deprivation of liberty.
- If a person consents to their care arrangements at the time of admission and/or at a time before losing capacity, unless the care package is changed significantly, this period covers the period up to and including death.
- Unconsciousness is not a mental disorder, therefore the criteria for a standard authorisation is not met if this is the only circumstance.
In December 2014, the Chief Coroner advised that the death of a person who was the subject of a DoLs authorisation is classified as a death in state detention. This means that deaths in private care homes qualify as 'deaths in state detention' since private care homes are authorised and regulated by the state under the Health and Social Care Act 2008 and associated regulations. The Department of Health have indicated that the government recognises the Chief Coroner's view, however any investigation should be proportionate to the circumstances of the case, particularly as the vast majority of such cases with be deaths in a normal care environment where there is no suspicion of 'untoward factors' contributing to the death. There are already reports of bereaved families being visited by uniformed police officers assigned to investigate deaths on behalf of the coroner or delays in releasing a patient's body to their family.
In addition, this classification could lead to a significant increase in the workload of service providers who will be required to provide reports, statements and records to the coroner as well as coroners themselves who will need to adopt a pragmatic, proportionate approach in their investigations.