Safeguarding doesn’t mean depriving people of their liberty

By Sanchita Hosali and Natalie Threfall

Imagine living in the same home for 32 years, in a community where you have strong links, as a small business owner, having shared your crafting skills at the local college and served as a magistrate for twenty years. You have developed dementia and when two social workers visit you, you cannot answer all their questions, so you go with them to a care home, and no one tells your family where you are for nineteen days.

In cases like this human rights laws are there to challenge poor decision-making processes. That is what happened in this RR  v Milton Keynes Council (April 2014) where the local authority was found to have breached an 81 year old woman’s human rights. The woman, referred to by the courts as RR has dementia, and was subject to several safeguarding alerts which the safeguarding team failed to investigate. Yet these underpinned her removal from home without authorisation, and without immediately informing her family. The cases shines a spotlight on the importance of local authority staff to understand how their duties under the Human Rights Act should permeate the everyday decisions they are making, especially in relation to safeguarding.

Safeguarding, or not
RR was being cared for by her son, known as SS. In the second half of 2012, social workers logged a number of concerns about injuries RR had suffered. Although referred to the safeguarding team no investigation took place. Then when further injuries were reported in October 2012 Milton Keynes Council decided RR needed to be removed to a place of safety. They also reported the injuries to the police. Two social workers went to RR’s house, although SS was not there. RR was unable to remember how she had been injured and the social workers took her away and placed her in a care home.

Safeguards, or lack thereof
No doubt concerns about neglect or abuse raise human rights concerns; physical and mental well-being, being at the heart of the protections in the rights to respect for private life and the prohibition on inhuman and degrading treatment in the Human Rights Act (Articles 8 and 3). These rights can include a positive obligation to take action to protect people from harm at the hands of others, but this does not seem to have featured in this case. Rather, the actions of the social workers raised issues about RR’s right to liberty. Further, had the safeguarding investigation been completed in a timely manner, the council would have been better informed to decide whether RR’s son was a risk to her rights or whether they were depriving her of a family life by restricting their contact.

The right to liberty (protected by Article 5 of the Human Rights Act) is not an absolute right; we are not free to do whatever we want, how we want to, any time. The Human Rights Act recognises that there may be good reasons to restrict someone’s liberty, such as imprisonment following a criminal conviction or because they need to be in hospital to treat serious a mental health problem. Importantly, the Human Rights Act sets out a number of safeguards that must be carefully considered before the authorities can deprive of someone of their liberty. This includes have having timely access to an independent review of the decision to restrict your liberty. In this case social workers removed RR’s without prior authorisation and it took a further fifteen days for the Council to apply to the Court of Protection to authorise the deprivation of RR’s liberty caused by confining her to a care home. SS wasn’t informed of his mum’s whereabouts for 19 days after the removal, information which he found out after having his solicitor write to the Council.

With RR in the care home a safeguarding investigation was started and continued for eleven months, resulting in restrictions on RR’s contact with her son. After sixteen months, both the Council and police decided not to pursue the allegations.

What the court said
Milton Keynes Council acknowledged that it ‘would have been appropriate and best practice’ to have sought authorisation from the Court first, and said they have reviewed their safeguarding processes and training ‘to ensure best practice in future’. However, as the Court pointed out this is not simply an issue of “best practice”, what happened was unlawful.

The judge described the failure to apply for authorisation of the removal and the deprivation of liberty as ‘deplorable’. He also condemned the failure to inform her son of RR’s whereabouts and the failure to investigate safeguarding concerns from the start. The handling of the whole case he described as ‘woefully inadequate’.

Everyday decisions engaging human rights
The judge found there had been an “avoidable and unlawful interference” with RR’s right to liberty, and her right to private and family life. The breach of RR’s family life rights happened when she was removed from her home. Importantly, the judge said RR’s human rights “are not invalidated, nor are the unlawful interferences with those rights rendered any less serious by virtue of RR’s incapacity.” This echoes the theme strongly emphasised by Lady Hale in the recent Supreme Court judgement in the Cheshire West deprivation of liberty case, where she emphasised that the right to liberty is universal, regardless of disability.

What happened to RR and her son
An independent social worker report for the Court of Protection also said that if SS was not responsible for RR’s injuries, she should remain at the care home until a plan was in place to support her return home. However, the Council decided that RR’s needs were best met by remaining in the care home, and decision which SS said he had little choice but to consent to in light of the Council’s decision not to provide support at home or other options. Whilst the Court of Protection cannot judicially review such care decisions, the judge did order the Council to issue a written apology to RR and her son. In addition the Court removed restrictions on contact between RR and her son, setting out the care support RR will need when visiting with SS.

The wider implications
The significance of this judgement is that it emphasises the fundamental importance of local authorities taking human rights into account in every aspect of their decision making. There are striking similarities with the judgement in Neary, where a young man with learning disabilities accessed respite services and was then detained (much of it unlawfully) by the local authority for a year against his wishes and those of his family.

Worryingly, three years after the decision in Neary, the Court of Protection still needs to make categorically clear that it is unacceptable to make life altering decisions about people’s liberty without engaging the proper safeguards which guarantee that the person’s human rights are at the centre of that decision.

Cases like this show how important it is that staff in local authorities responsible for making everyday decisions about care and support know what duties they have to respect and protect people’s human rights. Rather than being a “stick” to be frightened of, this is something to embrace, and at BIHR we work with health and care sector workers to put human rights at the heart of their practice. You can read about this work, told through the stories of the individuals and organisations we work with in The Difference it Makes: Putting Human Rights at the Heart of Health and Social Care.

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