Local Authority Takes A Liberty

Posted on 25th August 2011

Some carers we speak to, express confusion and concern about decisions taken by Social Services, relating to the care of the people they look after who lack capacity (“client”). The carers feel that their wishes and views are not sufficiently taken into account or are ridden roughshod over by people who (from their point of view) only have limited knowledge of the person they know and love. The trouble is that very often those carers are not aware of the processes being employed by public authorities or the limits to the power which can be exerted over people who are unable to make decisions for themselves, by those in authority. Carers may think Social Services have got a decision wrong but are not in a strong position to challenge it because they do not understand the system and they are deterred from making enquiries because to get advice may cost them money.

It is a pity that not more decisions are challenged by carers because, in respect of incapacitated people, assessments of whether a person has capacity to make a specific decision, or if not, whether a specific decision is in that person’s best interests, are open to wide interpretation and who is in a better than the carers to inform those assessments? Very often there is a problem with lack of communication and a lack of transparency builds up if Social Services anticipate that what they consider is best for a client, is not likely to be agreed by/with the carer. Some of these issues came to the fore in a recent case.

In the case of Hillingdon LBC v Neary (2011) a local authority really overstepped the mark, staff made decisions about a client which they thought were best for him but failed to discuss these, or their assessments openly with his father who cared for him.

Steven Neary, aged 21, had childhood autism and a severe learning disability. He had lived with his father (“F”) since birth. In December 2009 F requested some respite care for Steven, just for a few days. After a little while in respite care and against F’s wishes, the local authority decided it was not in Steven’s best interests for him to return home. He remained in residential care for a further year, which was when a court decided that he should return home to live with his father.

Ultimately, the court found that the decision by the local authority to refuse to allow Steven to go home had unlawfully deprived him of his liberty and was in breach of his human rights. The court decided (amongst other things) that the best interest assessments performed on behalf of the local authority, were deficient, not least because staff had not properly consulted with Steven’s father.

Generally, in cases concerning incapacitated adults, an assessment of best interests is fundamental to lawful decision-making. If there is a difference of opinion or doubt about what the best interests of an incapacitated person are, then the matter must go to the court to settle the issue. The best interests test is set out in the Mental Capacity Act 2005 at s4. As the name suggests, “best interests” is not a “scientific” test and the way the courts determine best interests is to adopt a “balance sheet” approach. All the positive pieces of evidence on a particular issue are put on one side with the negatives on the other and then the evidence is “weighed up” to determine what is best. In Steven’s case the issue was whether he should stay in residential care or go home to his father. Although he lacked capacity, he wanted to go home and so in order lawfully to keep him in residential care/prevent him going home, the local authority invoked the Deprivation of Liberty Safeguards (DoLS).

DoLS require a strict process to be followed and 6 assessments to be made to ensure that the deprivation of liberty is lawful. The cornerstone assessment is that of best interests, in this case whether it would be best for Steven to go home or stay in residential care. Deprivation of liberty is only lawful if it can be justified as being in the person’s best interests, necessary and proportionate in relation to the likelihood and seriousness of the harm the incapacitated person may suffer.

In Steven’s case the court found (amongst other things) that a best interests assessment should:

start from the presumption that (other things being equal) mentally incapacitated adults are better off living with their family rather than in an institution and the State can only justify removing them if that would provide a better quality of care than they had been receiving.
make reference to the person’s wishes and feelings and those of their family,
weigh up the advantages and disadvantages of alternative care options,
take into account the relationship between an individual and his family carer, and
assess the need for an Independent Mental Capacity Advocate.

The court and F did acknowledge that the local authority thought it was doing what was right and did achieve some good things (like reducing Steven’s weight). The impression from the judgment is that the local authority had a misconceived and presumptious view that it knew better what was best for Steven, than his father did.

…the moral is that those in authority do not always know best and if there is doubt, seek advice.