John Hemming: Deprivation of liberty system is riddled with conflicts of interest

The report of a 27% increase in people subject to the Deprivation of Liberty Safeguards raises a flag. The basic question is whether people are being deprived of their liberty for the convenience of the local authority or whether it is necessary or even essential for their security.

There is obviously a need to deprive some people of their liberty because of their mental condition. However, there has to be a system to independently scrutinize that process.

The Court of Protection suffers from the over judicialisation of what is essentially a therapeutic decision. The DoLS process itself, however, is subject to a substantial conflict of interest. If someone is in the care of the local authority then the LA appoints both the person who assesses an individual and also the “independent” mental capacity advocate – who at times also acts as the litigation friend. As is the case in many situations the Local Authority controls the income of all of the participants.

In essence, therefore, we end up with a system whereby there is a very complex and hence expensive system for reviewing a decision, but the local authority controls all of the participants in that process.

I had a case for one of my constituents where it seemed clear to me that the person was being imprisoned for the convenience of the local authority. I was banned from talking to her and she was compulsorily medicated when she asked to see her mother. Her sisters were warned by the judge not to talk to me and the whole process was dreadfully conflicted. It was clear that the assessments of capacity were substantially flawed, but that was not picked up by the system.

The senior judge Justice Jackson has pointed out that the Mental Health Tribunal system is a better system than DOLS. My own view is that we need to strengthen the case conferences by bringing in greater independence from whoever is responsible for the care decisions (local authority or PCT). This has to be accessible to family members for those people who are in care and should not be over judicialised. Conflicts of interest need to be taken out of the system.

The massive level of secrecy and lack of truly independent scrutiny has create a situation that is not necessarily any better than the Bournewood case. I am pleased that the Supreme Court has accepted a petition to appeal the Cheshire West judgment. However, what is essential is that case conferences are strengthened. My Family Justice Bill which has its second reading on 26th October 2012 aims to improve some of these issues. We also should allow the people subject to these constraints on liberty (secret prisoners) to speak out publicly if they wish.