I can’t pretend to be a Deprivation of Liberty Safeguards (DoLS) aficionada. But a little research reading reveals that the current ‘acid test’, in England and Wales, for assaying whether a person is subject to a Deprivation of Liberty is: if the person is ‘subject to continuous supervision and control and not free to leave’, she or he is deprived of her or his liberty and therefore needs the Safeguards applied, to ensure that the Deprivation and any restrictions or restraints used to enforce it are in the person’s Best Interests.
If a person lives in a care home or hospital, the Local Authority is responsible for checking that the Deprivation is in the person’s Best Interests and authorising it accordingly (a ‘Standard Authorisation’), but if they live in some other place – supported living, Shared Lives houses, children’s homes and residential schools, or even their own home – and are ‘subject to continuous supervision and control and not free to leave’, then any Deprivation of Liberty (and associated restrictions or restraints) has to be scrutinised and authorised by the Court of Protection.
Deprivation of Liberty was one of the lynchpin issues in Hillingdon v Neary. Steven Neary was placed in an ATU; he was under (theoretically) continuous supervision and control and he was not free to leave the Unit; on the occasions when he managed in practice to elude the ‘supervision’ and escape the control, he was sought and brought back by main force. Besides the physical restriction of being kept behind a (mostly) locked door and not being allowed to pursue his normal activities, Steven was also subjected to pharmaceutical restraint in the form of high doses of Risperidone.
Since he has been living in his own home, with a round-the-clock support team consisting of his father, Mark, plus a number of paid support workers, Steven has been able to direct his own life. He decides where he wants to go and when; if he expresses a wish to do something out of routine, his support team facilitates that, whether it’s an unscheduled trip to the shops or dropping in on a family member. If he wants some time to himself, his supporter(s) will go into a different part of the house, respecting his need for space and privacy while still being available should he need their presence. He is also no longer subject to pharmaceutical restraint, having been weaned off the Risperidone because of the terrible damage it was causing to his physical health.
So while Steven is still subject to continuous supervision, it is questionable whether he is, any longer, subjected to ‘control’. He is the one in control, his decision-making is supported in accordance with the Mental Capacity Act provisions and his right to make unwise decisions is respected. He is also arguably ‘free to leave’, even though he would still, in leaving, be subject to continuous supervision, as his support person would go with him to ensure his safety and that of people he may encounter outside the house.
However, the Local Authority has a duty to assess people who ‘may be’ deprived of their liberty, so Steven’s new Social Worker is coming round to do a ‘Community DoL’ assessment on Thursday.
I can’t see that Steven is being deprived of his liberty, but I think there is someone in Steven’s setup who, in practical effect, is being deprived of liberty. Not, as I say, Steven – he is supervised, but he has a measure of control, and if he wishes to leave, his team enables, rather than preventing, his leaving. Not the support workers, who have freely entered into a contract to provide services to Steven at certain times in return for remuneration, and who are at liberty to leave and seek alternative work should they so choose.
No, the person who is deprived of freedom is Steven’s father, Mark. How does officialdom manage this? By exploiting the fact that Mark loves Steven, while denying Mark’s family relationship to Steven: Mark is classified officially as Steven’s ‘live-in carer’.
When our neighbour across the road developed Alzheimer’s, her nearest relatives – a nephew and niece-in-law – organised live-in-carers for her. They were called ‘Caring Companions’; they came via a regulated provider; they did two-week turn-about stints with a mandatory two hours off in the afternoon of every day; they were generously paid; and they got the other two weeks a month entirely to themselves, with absolutely no further duties.
Mark, on the other hand, has to be available to Steven at all times when the paid support workers are not present. He can’t nip out when the notion takes him, if that would leave Steven unattended. There is no provision for short-notice respite to cover illness, for a regular daily break, or even for a block of sleep once in every twenty-four hours. In addition, Mark is obliged to do a great deal of real administrative work – 115 hours last year, or more than 3 full-time working weeks in 37.5 hours-per-week Local Authority terms – and carry the responsibility of being an employer, all for a financial reward of £0. He can’t choose whether to support Steven without jeopardising Steven’s liberty and entire way of life. His liberty to choose when he will support Steven is also curtailed by a social care budget that won’t stretch to the actual costs of providing Steven with appropriate, least restrictive care.
In my view, Mark is, in practical terms, deprived of liberty. He’s a prisoner of conscience.
On World Social Work Day, that’s a discomfiting thought.