Judge declines to authorise a deprivation of liberty (for now)

by Daniel Clark, 11th March 2024

While Deprivation of Liberty Safeguards (DoLS) in a care home or hospital have little judicial oversight (unless someone appeals or the restrictions are particularly severe), a deprivation of liberty in the community is reviewed by a judge. These are often decided on the papers, in a streamlined procedure known as “Re X”. However, a judge can choose to list a case for a hearing if they are not satisfied with authorising the deprivation of liberty “on the papers.” This is known as “Failed Re X”, and Eleanor Tallon has written about it here: ‘Failed Re X’: Deprivation of liberty and Re X (the streamlined process) – a social work perspective.

This case (COP 13155577) is one example of an application has ‘failed’ the “Re X” procedure. It was heard before Deputy District Judge Reeder, sitting remotely (via MS Teams) at First Avenue House, on Friday 23^rdFebruary 2024. Rebecca Handcock, of Field Court Chambers, represented the applicant local authority, London Borough of Haringey. Richard Alomo, of No5 Barristers Chambers, represented the respondent, MA, via his rule 1.2 representative (who is his mother). 

The hearing began with the judge asking everybody to confirm that they had seen and understood the Transparency Order, which prohibits the publication of any information will identify, or is likely to identify, MA, or his family, or where he lives or receives care. This gave the initial impression that there were lots of observers present but, as it turned out, some of those he asked were actually staff members at MA’s supported living placement. 

Background to the case

The judge gave an incredibly detailed summary of the case, which spoke to not only the letter but the spirit of the former Vice-President’s guidance. I understand that this is quite a usual occurrence for DDJ Reeder, and I was very grateful.

MA is a young man with a diagnosis of autism, and according to the position statement filed on his behalf,  he has what are described as “severe functional and cognitive impairments”. He resides in a supported living placement, and the local authority made an application under the streamlined Re X procedure, seeking the authorisation of his deprivation of liberty. 

When reviewing the papers, the judge decided that he “was not content to grant an authorisation order [because] I didn’t think it appropriate to determine the application for authorisation on the documents”.

In listing the case to be brought before him, the judge identified the precise issues that he required further clarity on.  

1. The care and support plan “recorded that [Mr A] is subject to regular sedation in order to control his behaviour”, through the administration of Diazepam and Quetiapine. 
2. The care and support plan was inconsistent: one part appeared to say that no physical restraint was authorised but another part made it clear he could be restrained.
3. The care and support plan is subject to yearly review but the documents in front of the judge were last updated in mid-2022. This makes the documents out of date. 
4. The response from the 1.2 representative did not adequately address the matters identified, which appeared to be because she had not seen any updated care plans before signing a previous witness statement. 

Counsel for MA had made an application to adjourn the hearing, which seemed to be supported by Counsel for the local authority. However, the judge declined to do this, stating “I’m concerned with those points that I raised. At the moment [Mr A] is subject to a deprivation of liberty and it is not authorised […] We have a deprivation of liberty which is not currently authorised and […] I like to make as much progress as possible. I don’t like unauthorised DOLS”. 

Addressing the judge’s concerns

The judge did indeed seem eager “to make as much progress as possible”, and many of the issues were addressed in this hearing.

The date of the care plan was addressed very quickly: Counsel for the local authority explained that it was updated in February of this year, and was in the bundle. 

This naturally led to the question of whether physical restraint was being used, with the judge asking what the up-to-date care plan says about this. The brief exchange went like this: 

Counsel for Local Authority: As I understand it, restraint is not asked to be authorised.

Judge: That’s not the question. Those on the ground won’t look at my order, they’ll look at the care plan. Is there any authorisation for any restraint by anybody? 

After some delay in which Counsel took instructions, and a copy of the Position Behaviour Support Plan was located, it was clarified that physical restraint is not authorised for use. In other words, it does not form part of MA’s care and support. All the relevant paperwork clarified this, and the judge was satisfied with the response. 

Further issues with the care plan were discovered when the judge turned to considering medication. 

It emerged that MA has recently undergone a medication review. He had previously been prescribed Diazepam but this had been titrated down (that is, gradually reduced so as not to cause withdrawal). This meant that the only medication he is prescribed for regular use is Quetiapine, and the judge was keen to understand how often. 

He asked one of the support workers, who had written the care plan, to clarify what it meant that MA has Quetiapine “BD PO”. However, the support worker was unable to say, either because she didn’t know or because she was put on the spot. Counsel for the local authority had to intervene to explain that BD means twice daily (the meaning of PO wasn’t addressed again – it means “Per os”, or “by mouth”). 

Once this was cleared up, and it was clear that MA is prescribed Quetiapine “to manage any kind of challenging behaviours”, the judge said that he wanted the review to consider whether this can be changed to PRN (as required) medication rather than routine use. He also said that this was a learning point for Counsel: “It’s better from the horse’s mouth rather than having someone summarising the medication review. It’s better to have the review in front of the court”.  

A 1.2 representative

The final matter for the judge to consider was the involvement of MA’s mother, who is also his 1.2 representative. A 1.2 representative is supposed to represent P’s voice, and ensure that it is heard in the court process. This could be a family member, friend, or paid advocate. This person then files a witness statement with the court, explaining whether they agree that the care arrangements (including restrictions) are in a person’s best interests. 

In order to do this, it is self-evidently important that the 1.2 representative has access to all of the relevant documentation. Without it, the 1.2 representative cannot really speak to whether the restrictions are in P’s best interests. 

In this case, the statement was all the more important because it was clear that there were some problems with MA’s care. Counsel for MA explained that there should have been consideration of overnight stays with his mum: that hadn’t been arranged. The care plan also did not accurately reflect the amount of contact that MA has with his mum. There was also a further issue in that MA’s cooker had been broken for about six months, was being removed on the day of the hearing, but there was no timescale for a replacement – again, this wasn’t reflected in any paperwork. 

The judge was keen to hear the views of MA’s mother, in her capacity as MA’s 1.2 representative but also in her capacity as his mother. As the judge pointed out, “the role of a 1.2 representative is very important, it puts you at the front end, you’re noticing things the court cannot see. We’re looking for you in your statement to identify whether there’s anything in the care plan, in the arrangement for [Mr A’s] care, that the court might need to interfere with”. 

This really underlined the importance of family involvement in the care and support of any P, who do see things on the ground that the court either cannot see or are purposefully not made aware of. This is true outside of court proceedings: the family members of those who receive care will notice things that paid carers simply will not see because they do not know that person as well. 

Given that MA’s mother had been unable to file a witness statement that reflected her views on MA’s current care, the judge declined to authorise the deprivation of liberty at this hearing. He listed the case again for a on- hour hearing at 2pm on Wednesday 27^th March 2024. 

On care plans

This case seemed to be suffused with care plan issues. These are documents that I’m very familiar with because I was a paid carer for a number of years: I read more than I can recall, and wrote some too. This case serves as a good reminder that care plans should be inclusive rather than exclusive, assuming no former knowledge of the “language” of health and social care.

The judge seemed to me to be quite right to point out that those caring for MA will not rely on the Order to familiarise themselves with his needs. I cannot imagine a situation in which a member of staff, in response to someone’s behaviour putting themselves or others at risk, would turn to a court Order to decide what to do. The place to look for de-escalation techniques (ways to support a person through their distress) would be the care plan. If that care plan signalled restraint can be used as a last resort, that would be taken as the truth.

In a similar way, new members of staff and agency staff who are not familiar with MA’s needs will turn to the care plan as a source of a guidance. It is therefore imperative that it is accurate and up-to-date – a truth applicable to all care settings. 

Care plans should also be clear. I was quite struck, in the discussion about MA’s medication, that the support worker was unable to say what abbreviations meant. It was explained that they had essentially just been copied from the psychiatrist’s prescription and into the care plan. This does not seem like a very sensible approach because it assumes that everyone reading it will know what it means. But will they? This is the question that needs to be constantly asked when writing care plans

It’s quite probable that the support worker had a momentary lapse in memory (after all, speaking in court even when not formally giving evidence can feel high-pressure). However, a care plan should use language that is immediately accessible and understandable so that even a brief lapse in memory doesn’t affect its intelligibility. For example, I once wrote a plan for a person with complex physical health needs, detailing what to do in an emergency. It would have helped nobody, least all of the hypothetical person turning to the plan for support, if I used highly complex language that required a great deal of background knowledge. So, instead of using phrases like, “If X’s dyspnoea worsens…”, I wrote “If X becomes more breathless than usual…”. 

Jargon and abbreviations achieve the exact opposite of intelligibility

They not only exclude care staff without the requisite knowledge but also exclude a person’s family. For example, it may be the case that MA’s mother, acting as his 1.2 representative, will not be able to understand this element of the care plan. And what of MA himself? While I do not know whether he would either want to access his care plan, it should be written with him in mind. 

Person-centred care planning can only be achieved with the person at the forefront of your mind, and one way to do that was to imagine that the person would be reading it as soon as you’d finished. In reality, the best way to do this is to write a care plan with the person about whom it relates. It should go without saying that even people with quite complex cognitive impairments are able to tell you about their life, what they like to do, and what makes them feel safe and comfortable. 

Daniel Clark is a member of the core team of the Open Justice Court of Protection Project. He is a PhD student in the Department of Politics & International Relations at the University of Sheffield. His research considers Iris Marion Young’s claim that older people are an oppressed social group. It is funded by WRoCAH. He tweets @DanielClark132.