On the 13th March 2017, the Law Commission published their report on Mental Capacity and the Deprivation of Liberty Safeguards. The overdue report finally arrived a week after news broke of the death of Rusi Stanev, aged 61. The ruling on Stanev v Bulgaria by the European Court of Human Rights in 2012 was a catalyst for change. Just two years later Lady Hale referenced his case in setting the acid test for determination of what constituted a deprivation of liberty in her summary of the landmark Supreme Court ruling which has come to be known as Cheshire West.
The Cheshire West ruling was a large boulder thrown into the relatively tranquil sea of adult social work. The waves which it has generated continue to disperse and rebound across the profession, disrupting the comfortable care management function which has defined adult social work since the Community Care reforms of the 1990s. Cheshire West was a wake up a call to adult social work, reminding the profession of its roots as an academic discipline that promotes social change and development, social cohesion, and the empowerment and liberation of people based on principles of social justice and human rights. The role of Best Interest Assessor became a hugely desirable qualification for adult social workers who saw the opportunity to reconnect with their values as the person whose professional role was to uphold people’s human rights.
The widened the definition of deprivation of liberty in 2014 has, however, triggered unprecedented demand on Local Authorities. Almost overnight we experienced a 10 fold increase in the number of requests for the Safeguards to be authorised from hospitals and care homes where a deprivation of liberty was taking place. In the last 18 months further pressure has mounted on adult social work services as deprivations of liberty are also being identified in supported living settings for adults with learning disabilities. As social workers we are relearning report writing skills as we prepare to present cases to the courts, increasing our legal literacy with case law that references the UN Convention on the Rights of Persons with Disabilities and reclaiming our sense of professional identity and pride in our profession.
So, we have approached the Law Commission Report with optimism and a sense of hope. The report (which includes draft legislation) reflects 3 years of work on the part of the Law Commission to review how fit for purpose the current Deprivation of Liberty Safeguards scheme in light of the clarity given by the Supreme Court in 2014 on what constitutes a deprivation. Their finding is that there is a compelling case for reform of what has become an overtly technical process which is subject to increasing managerial concerns about levels of demand and the cost which Local Government is baring in administrating the scheme. They observe that the numbers of requests for authorisation have reached levels which make it impossible for Councils not to routinely breach statutory timescales for completing assessments and putting the safeguards into place. Their solution is to replace the DoLS with a new scheme which they are proposing is called the Liberty Protection Safeguards.
Here is where a first pause is required. As a proposed response to reduce the level of technical fog around the current DoLS – already the name of the new scheme is causing confusion with parent and carer groups questioning what the difference is between a protection and a safeguard. Our view is that names matter hugely. As symbols of intent which send signals across the system a name is a powerful object. Our preference would be to simplify the name and set out as we intend from the start. Let’s drop the protection bit and simply call the new scheme the Liberty Safeguards because that is what they are. We know what images the word protection conjures up in the post Care Act world of health and social care; where we challenge those who self-neglect, ignore the spirit of making safeguarding personal or give barely a passing nod to our responsibilities under Article 8. If we call anything in adult care ‘protection’, then really do expect the worst because there is a swathe of the public sector that think that protection means good old fashioned, ‘lock em up and love em as best you can’ care. The best protection is self protection or sponsored protection where people’s rights are upheld with the same vigour and singular desire as we ourselves feel when it comes to protecting ourselves and our loved ones. If public protection is genuinely such a concern that the word protection must explicitly feature in there (and having read the first few bars of the heart-sinking entitled proposed Vulnerable Adult Bill) let’s at least try and agree on what it is we are trying to protect. Our role as social workers is to protect people’s right to liberty. So if we can’t drop the word, let’s at least move it to call them the Protection of Liberty Safeguards.
Going back to the detail of the scheme, our Liberty Safeguards would apply in much wider contexts including hospitals, care homes, supported living, shared lives and private and domestic settings. The new scheme will cover any situation where Article 5(1)(e) is potentially engaged. The specific arrangements that may be authorised are:
- arrangements that a person is to reside in one or more particular places;
- arrangements that a person is to receive care or treatment at one or more particular places; and
- arrangements about the means by which and the manner in which a person can be transported to a particular place or between particular places.
Interestingly, the Law Commission also propose that whereas the DoLS scheme only applied to adults over the age of 18, the new Liberty Safeguards would apply for 16 and 17 years olds. This is a sensible change which reflects best social work practice in preparing young people for their transition into adulthood.
It is also proposed that the role of Local Authorities as the Supervisory Body be revised and replaced with a new Responsible Body requirement. In a pragmatic nod to the drive towards integration the Responsible Body duties would be shared across health and social care depending on where the deprivation of liberty is taking place with hospital trusts and CCGs taking responsibility for their cases.
There are other significant changes which it is worth finding out more about from the various commentators who have written about the report. However, our personal favourite is the blog written by Mark Neary. The ruling on the unlawfulness of his son Steven Neary’s deprivation of liberty in 2011 is one of the most significant cases in adult social work in that it made the connection between Article 5 and Article 8 ECHR, the right to a private and family life. If Article 5 is the technical aspect of the current DoLS scheme, Article 8 is the heart and soul made manifest in Mark and Steven’s relationship. If you ever get chance to hear Mark speak, please take the opportunity.
Whilst, we recognise and welcome the requirement to make explicit the relationship between the proposed Liberty Safeguards and the UN Convention on the Rights of Persons with Disabilities by upholding people’s wishes, feelings and beliefs when authorising the Safeguards, we are underwhelmed by the missed opportunity to emphasise the significance of Article 8 rights. It makes us wonder whether the current obsession with interference with Article 8 rights to justify disproportionate responses to so called self-neglect has leaked into the thinking of those working on the report.
The Law Commission also recommend that the role of Approved Mental Capacity Professional be introduced building on the current Best Interest Assessor role. As a long term advocate of the AMCP role we remain convinced that role is a lifeline being thrown to the adult social work profession and it should be grabbed with both hands. It is a role most naturally suited to social workers with adults because since 2014 we have rapidly embraced and consolidated our expertise, knowledge of and passion for human rights and the Mental Capacity Act (2005). AMCPs as the safeguard of people’s rights and well being. What greater opportunity can there be for all those social workers who came into the profession saying at their interview to get on the course that they wanted to make a difference?
So do the Liberty Safeguards provide a last chance saloon challenge to adult social workers? We think they do. But we also think that if better social work is to become our reality, social workers will need to be really brave. In embracing the social work role as the Law Commission envisage it, and making the most of the potential to elevate our professional by leading on human rights through social work, we may need to be prepared to cast off other roles that we have had bestowed on to us that don’t suit us, or that we don’t do well or moreover where the person themselves needs to be the only voices heard. At the beginning of the Law Commissions consultation process we asked ‘Are We Human or Are We Care Manager?’ and questioned where social work sits, nearly 30 years on from NHS & Community Care Act. By the end of the consultation we think that yes, we can see the door which is open to us. This 3 year process has generated overwhelming evidence that the answer to the question is that social work is human rights and that it is ready for the challenges of ensure that Article 5 loophole is dealt with. However, social work is not the answer on its own and can only wish to be a small part of the solution. As Mark Harvey said in his blog describing a new Bohemian social work movement:
‘we are not the custodians of society, we need to learn to be part of it, in fact we need to ask humbly if we can come and play again. Then and only then on an equal footing can we work alongside people and create opportunity, not risk averse application that does unto’.
To truly step up to the plate and play the role the new proposals need us to, we need to really ask ourselves – what sort of social worker are we? Are we really ready to step away from the trappings of care management, which was a role no one else wanted but we ended up with in the post Community Care scramble of 1990. Our role as all things to everyone, assessor, support planner, broker, discharge facilitator are perhaps best rested with the individuals we support, the communities that they come from and families that are best suited to help deliver real meaningful outcomes because of their love for the person. Social workers, put down your RASs (they never worked anyway), step up to the challenge of the Liberty Safeguards and deliver human rights based social work and maybe not all the other things between.