Not “On a DOLS” – Court of Protection Clarifies Terminology
Bury Metropolitan Borough Council v EM & Ors [2024] EWCOP 76 (T2)
Avaia Williams, a first six pupil under the supervision of Sara Anning and Rebecca Musgrove, looks at the judgment in Bury Metropolitan Borough Council v EM & Ors [2024] EWCOP 76 (T2) and discusses the consequences of complacent terminology.
The full judgment (which merits reading in its entirety) can be found here.
In Bury Metropolitan Borough Council v EM & Ors [2024] EWCOP 76 (T2), the Court of Protection considered the care arrangements for an 18-year-old woman, Emma (“EM”), addressing issues of capacity, best interests, and the implications of terminology surrounding deprivation of liberty orders. The case also explored the Local Authority’s handling of proceedings and compliance with court orders, resulting in an adverse costs order against the LA.
This article focuses only on this judgment in so far as it relates to terminology, however, the judgment serves as a key reminder to Local Authorities on the issue of compliance and should be a warning to all authorities that the Court of Protection can, and will, make adverse costs orders where necessary.
Background
Emma, an 18-year-old with autism and ADHD, presented with a history of severe self-harming behaviours and mental health crises. After escalating incidents of self-harm in early 2023, she was detained under Section 2 of the Mental Health Act 1983 and later transitioned to a care placement to address her complex needs. The placement involved 24-hour supervision, significant restrictions, and interventions for her safety.
Following Emma’s transition into adult care, her capacity to make decisions regarding her residence and care came under scrutiny. Proceedings were initiated in the High Court in August 2023 to authorise care plans under the inherent jurisdiction. These proceedings transitioned to the Court of Protection after Emma turned 18. Throughout the case, Emma expressed a desire for less restrictive care arrangements, though concerns about her fluctuating capacity and safety risks persisted.
The Local Authority sought to withdraw Court of Protection proceedings and discharge orders authorising Emma’s deprivation of liberty on the basis that her placement could continue without such authorisations. The Official Solicitor, acting as Emma’s litigation friend, raised concerns about the LA’s compliance with previous court orders, its understanding of care planning, and its reliance on the term “on a DOLS.”
Emma’s psychiatrist emphasised her fluctuating capacity and the need for therapeutic care planning, noting Emma’s progress and her stated preference for fewer restrictions. However, inconsistencies in the LA’s approach to care planning and communication exacerbated delays and confusion.
The Law & Judgment
A key issue to the case was Emma’s capacity, or lack of. As noted by Emma’s psychiatrist, her capacity and ability to make relevant decisions fluctuates. Whilst this point, is not the crux of this article, or the ‘interesting’ element to have come out of the case, what the Court said on the point is of interest, noting that:
“It was not clear to the Court whether in fact EM was still in a crisis during which her capacity to make relevant decisions was absent, at least some of the time. In such circumstances the Court needs to understand the nature of the fluctuating capacity, what triggers it and what is the scope of the incapacity when triggered.”
The Court pointed out that the difficulties with such cases are well illustrated in Leicestershire County Council v P & NHS Leicester, Leicestershire & Rutland ICB [2024] EWCOP 53 (T3), a judgment which had not been reported at the time of the hearing in Emma’s case.
The Court approved the plan being sought, but Judge Burrows criticised the Local Authority for its misunderstanding on the legal framework with respects to deprivation of liberty cases. It was noted that, DoL or DoLs refers to the wording of Article 5 of the ECHR, as an acronym for “Deprivation of Liberty”. DOLS on the other hand refers to Schedule A1 of the Mental Capacity Act 2005, and is in reference to the Deprivation of Liberty Safeguards.
As such, as stated by the Judge:
“Emma is therefore subject to an order that authorises her deprivation of liberty, which could be called a DoL or DoLs order. She is not on a DOLS.”
On this, the Judge further explained that being deprived of one’s liberty needs to be authorised as part of a care plan. This can be pursuant to Schedule A1 (the DOLS) where a person aged over 18 is detained, or pursuant to ss.15 and 16 of the MCA where the person is under 18 or somewhere other than a hospital or care home.
The fact that Emma’s case was dealt with by way of the inherent jurisdiction meant that her liberty was deprived outside the statutory regime, thus meaning she was subject to a DoL order (again, not DOLS). The terminology is a key point, as Judge Burrows explained, the expression to be “on a dol”:
“…whilst perfectly legitimate abbreviations, must be understood properly and within that context. To be “on” or “under a dol” means to be subject to an order (or authorisation) approving and authorising a care plan which allows the carer to use restrictions that amount to a deprivation of liberty in the best interests of P. Clearly, the emphasis here is on the care plan itself and not the legal status of the restrictions that can be used.”
As a key point, the Court pointed out that:
“Unfortunately, when the Court authorises such a care plan that amounts to a “dol” it is seen as being mandatory, like the Court has imposed a prison sentence.
…
It is important to emphasise though that the care plan is King here”
It is Emma’s care plan, not the court’s authorisation, which determines the nature of her restrictions. If those involved in her care are able to devise a care plan which does not require a deprivation of liberty, then the court will authorise it. Similarly, if the care plan requires the possibility of a deprivation, this will be authorised, but it is not prescriptive of what must happen.
This led to confusion in Emma’s case. The Local Authority were under the impression that, the only way that Emma’s care plan could evolve such that she could move into the community or not be under such restrictions would be to “have the dols lifted”. As the Court put it:
“This is incorrect. If the LA devises a care plan whereby Emma can move to another place where she will not be deprived of her liberty, there will be no need for the Court to authorise her deprivation of liberty. If a plan is devised at her present placement that does not amount to a deprivation of Emma’s liberty, the Court will not need to authorise one.”
The Judge, clearly expressing concern around such applications, pointed out that, by virtue of focusing so heavily on whether a person is subject to a DoLs order or “on a dol”, that person is lost sight off, they are simply either a person who is on a dol or not. With many people subject to a deprivation of liberty thus feeling forgotten about and put out of sight until the issue of DoLs is raised.
Commentary
Whilst not appearing to many to be an issue worth a significant part of a judgment, the terminology involved in these decisions, as with most court orders, is key. In the first instance, when terminology is the focus, those people involved in the cases are almost pushed aside and the focus is shifted solely to black letter. It becomes easy for practitioners to forget that there are real people at the heart of these cases. In the second instance, when terminology becomes the centre of focus, it is easy to stray from the actual position in law, requiring such decisions to correct the steer.
Parallels can be drawn with numerous areas of law. Rather than being Adam, he is “sectioned under the Mental Health Act.” Rather than being Jane, she is “on a Care Order.” And whilst these statuses in law are vital when it comes down to legal issues, these statuses should not cloud the fact that these people are people, with their own unique experiences and perspectives and thoughts and feelings and unique requirements when it comes down to their care and support.
The court underscored the critical role of accurate terminology and understanding in deprivation of liberty cases. The court’s dissection of the term “on a DOLS” highlights the need for precision to avoid misconceptions that could undermine the dignity and autonomy of individuals subject to restrictive care plans. The term “on a DOLS”, outside of being legally incorrect, also oversimplifies the nuanced process of authorising and implementing care plans; at their heart, these authorisations are ordering the approval to deprive somebody of their liberty where this is necessary in implementing a care plan, the court are not ordering that a certain course of action must take place. To put it simply, just because the court has authorised a person be deprived of their liberty, it does not mean that person must be deprived of their liberty.
Misconceptions about DoL orders can lead to the false perception that individuals are “locked up” by court mandate, rather than this being an option through their care plans and the decision of all those involved in their care, developed in their best interests.
This judgment, while specific to Emma’s case, offers valuable guidance for practitioners, notably those working on the front lines with individuals who are subject to DoL orders, navigating the complexities of deprivation of liberty care planning within the MCA framework.
