HL, Bournewood, DoLs

Where are we now?

What can we change?

House of Lords, June 1998

“ Counsel for the Trust and the Secretary of State argued that [HL] was in truth always free not to go to the hospital and subsequently to leave the hospital. This argument stretches credulity to breaking point. The truth is …., any possible resistance by him was overcome by sedation, by taking him to hospital and by close supervision of him in hospital. And if [ HL] had shown any sign of wanting to leave, he would have been firmly discouraged by staff and, if necessary, physically prevented from doing so. The suggestion that [HL] was free to go is a fairy tale. ... In my view [HL] was detained because the health care professionals intentionally assumed control over him to such a degree as to amount to complete deprivation of his liberty”.

Lord Steyn, House of Lords, June 1998

Restraint is used, including sedation, to admit a person to an institution where the person is resisting admission.

Clinicians stated that at the time of admission HL was fully compliant and had not attempted to run away. However other reports describe him as being calm when he arrived at A&E but began to show signs of anxiety and when a doctor and two assistants arrived he became agitated. They supported him to a waiting minibus, transported him to a behavioural unit and drugged him again. Admission notes state ‘he is now pacing round the garden it is difficult to get near him to examine him

Staff exercise complete and effective control over the care and movement of a person for a significant period.

When we were finally allowed to visit on 2nd November 1997 after the Appeal Court ruling we found HL in a serious state of neglect. and a strict set of ‘guidelines’ were being imposed so all staff would act the same. They were about control of HL. His own ways of expressing his wishes were ignored with clinicians refusing to interpret his behaviour as him not wanting to be there. Immediately spotted by the independent clinicians.

Staff exercise control over assessments, treatment, contacts and residence.

The Trust were criticised in the NHS Ombudsman’s Report for the process of assessment which was too prolonged and stated that ‘consideration should have been given to discharging him on the same day after Mr & Mrs E had been located………even if it was felt necessary to keep him overnight it is difficult to see why he was not discharged the next day. Any further assessment could have been conducted in the community.’

A decision has been taken by the institution that the person will not be released into the care of others, or permitted to live elsewhere, unless the staff in the institution consider it

appropriate.

The Bournewood clinicians consistently refused all approaches for HL to be released. The Appeal Court concluded that ‘Mr & Mrs E had looked after HL as one of the family for over three years. They made it plain that they wanted to take him back into their care. It is clear that the hospital was not prepared to countenance this. If they were not prepared to release HL into the custody of his carers they were not prepared to let him leave the hospital at all. He was and is detained there.’

A request by carers for a person to be discharged to their care is refused

In spite of our and others repeated requests for HL to be allowed home, as far as the Bournewood clinicians were concerned ‘returning HL to his carers was the least favourable option’.

The person is unable to maintain social contacts because of restrictions placed on their access to other people.

HL was completely cut off from his life at home, even his own community nurses were not allowed access. We were not allowed to visit and the letter from the clinician said ‘unfortunately we do not want to face the scenario where following your visit he may expect to return with you’

The person loses autonomy because they are under

continuous supervision and control. By October 1997 the clinicians reported a dramatic deterioration in HL’s condition. His ‘behaviour’ had worsened despite 11 changes of medication, lost weight, scarred from damage by others. However from the moment of his release in December 1997 HL never looked back, he smiled constantly, regained his weight loss and his wounds healed, reinforcing our belief that he did not wish to be there. Clearly HL’s detention had not been in his best interests.

Definition of Deprivation of Liberty Spurious use of ‘Safeguarding’ Refusal to accept / understand DoL is not confined to

Care homes and Hospitals. Lower than expected level of applications. Poor levels of training in MCA & DoLS Lack of information given to families when

authorisation process starts.

Weaknesses in DoLS

Family members / carers being excluded as RPRs No appeal process for non appointment as RPR Inconsistency in the instruction of IMCAs Best interests decision making not following Section 4

MCA Code of Practice. Lack of transparency in DoLs process. BIAs not seen as

independent. Court orders not followed up, parties not checked on

to ensure there is compliance. Lack of respect, humanity and ‘human kindness’.

Weaknesses in DoLS

All residential contracts should require MAs to demonstrate full training and appropriate qualifications for MCA & DoLs as a condition of placements.

Supported Living schemes specifically those run as pseudo residential homes to be brought into DoLS

More robust inspection by CQC All registered providers to have a registered manager with inspectors studying care plans and making judgments on DoL likelihood

Appointment of equivalent 39D IMCAs to support untrained, uninformed family members through assessment process prior to authorisation.

Possible Changes

Safeguarding leads to be separate from MCA / DoLS leads and return safeguarding to its true purpose.

BIAs to pursue their role in adjacent authorities.

An appeal process for people who wish to challenge the appointment of RPR.

Court orders to be followed up and scrutinised, perhaps a role for the Official Solicitor or Court visitors or CQC

39D IMCAs to be instructed as a matter of course, their appointment only to be terminated at the express wish of RPR.

Possible Changes

How can deprivation of liberty be identifiedWhat measures are being taken? When are they required? How long do they last? What are the effects of any restraints or restrictions on the individual? Why are they necessary? What aim do they seek to meet?

What are the views of the person, their family or carers? Do any of them object to the measures?

How are any restraints or restrictions implemented? Do any of the constraints on the individual’s personal freedom go beyond ‘restraint’ or ‘restriction’ to the extent that they constitute a deprivation of liberty?

Are there any less restrictive options for delivering care or treatmentthat avoid deprivation of liberty altogether?

Does the cumulative effect of all the restrictions imposed on the person amount to a deprivation of liberty, even if individually they would not?

Things to look for

You may be told that a person prefers to be in their room but may be they are ‘encouraged to be there for staff or residents’ convenience. Not allowed to leave – blamed on insufficient staff (nursing homes if no family or friends then no outings) repeatedly trying to leave Restraint by tables in front of people or lap beltsUse of prn medication say 3 times a dayBaby alarms in rooms or CCTV used for close supervisionPost being opened and readMonitoring phone callsForce, threat, medication, subterfuge is used to engineer a move when they either object or resist. (includes the sudden declaration of lacking capacity when not agreeing an LA course of action).Not free to return home when person wants to and/or family / carers want them to Lack of social opportunities outside of home Covert medication or medicating to make more compliant