“Her family said Mr Maddocks, a retired painter and decorator from Stoke-on-Trent, had been held ‘like a prisoner’ on the orders of a local council.”
Although not specified in the article, it is reasonable to assume that the Local Authority had granted the care home a ‘Deprivation of Liberty’ order.
It is the Alice in Wonderland logic of the Mental Capacity Act 2005 – as amended by the Mental Health Act 2007, which brought in the ‘Deprivation of Liberty’ regulations – that the agency [in this case the Council] that commissions a provider [the care home] to meet the needs of the person, congruent with his rights of liberty as a citizen, is the same agency that will then – on application by provider – authorise that the person be deprived of their liberty because the care home does not believe it can meet the needs of that person without so depriving him of his rights to liberty as a citizen.
There is no independent agency that can look at the case objectively and then determine if the person can be lawfully deprived of his liberty, or whether the Council as commissioner or the care home as provider could and should meet the person’s needs without depriving of his liberty. There is no equivalent to the Mental Health Tribunal to which appeal can be made, as can happen if a person is being detained under the Mental Health Act. The Court of Protection only becomes involved if – as in this case – there are disputes about, or challenges to, the Deprivation of Liberty order. It is – or should be – astonishing that in this country a person may be lawfully deprived of their liberty by administrative process only.
That one secret incarceration then led to another ought to be a matter of deepest concern and alarm. That all of this is entirely congruent with the statutory and regulatory powers of the Mental Capacity Act strongly argues that the law should be changed. From an instructive historical perspective it is worth remembering that the Mental Capacity Act 2005 was the Labour government’s response to the Bournewood case and judgement in 2004. The European Court of Human Rights had determined that the nub of the problem was that HL’s de facto detention had not been ‘in accordance with a procedure described by law’. Not that it was a bad thing in itself, not that the UK could or should do better, but that there had been no proper procedure that could be followed. This gave the green light to the Government not to find better ways of caring for people with complex mental capacity problems, but to invent the administrative process of ‘Deprivation of Liberty’. Cunning or what?
Why is there not the greatest public outrage and protest at the intent and the operation of the Deprivation of Liberty regulations? Because the people to whom they are applied, the people who are being detained in care homes and hospitals, are by and large older people with dementia. They have the least voice and they are perhaps society’s least concern. Some several years ago I visited a care home as part of a ‘due diligence’ process for its possible sale from public to private ownership. On the outside of every bedroom door in the ‘dementia wing’ was a bolt high up accessible only to staff. This was – the home freely admitted – in order to lock the residents in at night “to stop them wandering, or hurting themselves or going into other people’s bedrooms”. Of course, also a brilliant way of cutting night time staffing costs: one sleeping warder, not three waking care workers. Ten years ago that was as unlawful as it was disgusting. Under the Mental Capacity Act it remains disgusting, but it may now be lawful. All it takes is the penny-pinching care home to ask the cash-strapped Council if they think it’s OK and for the Council to say “It’s not ideal, but it is cheap, so carry on.”