[2024] UKUT 427 (AAC)

We take these grounds together. In response to ground 2, DBS submits that it has made no error in because the appellant’s explanation that doors were locked for residents’ safety was also rejected by the appellant’s employer. DBS refers in this regard to the notes in the employer’s record of the disciplinary hearing that no record had been found in handover notes of “comments with regard to the behaviours of residents wandering around or being violent”. DBS also suggests (paragraph 29 of its response) that “A colleague of the [appellant] working on the nightshift was also surprised the doors were locked (see CF, middle of [42])”.

However, we consider there are a number of errors of law in its consideration of this aspect of its decision for the following reasons.

DBS’s final decision letter is written in a way that makes it appear that DBS considers there can never be any justification for locking residents’ doors and that this will in all cases be, or risk being, harmful to residents. DBS wrote: “You blame residents wandering into other rooms for the need to lock them into their bedrooms without their consent. You also blame low staffing levels/being run off your feet for the need to lock residents in their bedrooms without their consent”. DBS has not, on the face of the decision letter, included anything to indicate an understanding that, provided the correct authorisations are in place, it is lawful to deprive someone of their liberty who lacks capacity to consent if that is in their own best interests to protect them from harm, is a proportionate response to the likelihood and seriousness of the harm and if there is no less restrictive alternative: see paragraph 1.13 of the Deprivation of liberty safeguards: Code of Practice (2008).

We acknowledge and, indeed, emphasise that someone should never be deprived of their liberty “for the convenience of professionals, carers or anyone else” (see paragraph 1.14 of the Code) and, further, that, in the absence of the proper authorisations under the Deprivation of Liberty Safeguards (DoLS) regime, room locking is unlawful as it breaches residents’ rights under Article 5 of the ECHR. However, DBS’s concern is, or should be, the risk of harm to the vulnerable adults. As such, the absence of the necessary authorisations should not be regarded by DBS as conclusive proof of harm to the vulnerable adults. If it is said that there were in fact and in principle circumstances that justified the deprivations of liberty in the residents’ best interests, DBS needs to engage with that evidence in order to determine what the risk of harm to the vulnerable adults was and the risk that the appellant may pose in future. In this case, DBS did not engage with the appellant’s evidence as to the reasons why she was complicit in locking residents in rooms. Indeed, DBS treated those potential justifications for locking rooms as being evidence of the appellant’s lack of empathy and irresponsible attitude, when in fact the reasons were, or potentially were, evidence of the opposite, i.e. evidence of the appellant’s care for the residents, empathy and responsible attitude.

If, and to the extent that, the brief references in the SJP to the appellant’s justifications for locking rooms (relied on by DBS in response to this appeal) are to be taken as DBS having considered the appellant’s evidence about risk to residents but rejected it because the risks had not been recorded in handover notes, then in that respect too DBS has in this case in our judgment failed to take into account relevant factors. It is clear from the CQC report that this was a home that was being run in general without proper regard to the principles of the Mental Capacity Act 2005 and that its record-keeping was in general extremely poor. CQC also found that staff training was inadequate. There is nothing to suggest that CQC took these factors into account in its decision-making, but they bear directly on this issue. Given the findings of CQC, we do not consider that it was open to CQC in this case (i.e. we find it was irrational) for CQC to treat the absence of records of resident behaviour as a reason for disbelieving the appellant’s evidence on that point (if, indeed, CQC did reach that view, which we are not satisfied it did because there is, as we have already noted, nothing to suggest that CQC actually engaged with the appellants’ evidence as to the potential justifications for locking rooms).

We add this: we said above that it was wrong in this case for DBS to treat the absence of the necessary DoLS authorisations as conclusive proof of harm to the vulnerable adults. That is in substance the effect of DBS’s decision, as we read it. However, we observe that in this case DBS’s decision letter does not even acknowledge that it is the absence of DoLS authorisation that means there was a breach of residents’ rights. DBS’s decision letter does not give any indication that it is aware of the Deprivation of Liberty Safeguards (DoLS) regime at all. While we proceed on the assumption that DBS as the expert regulator is aware of that regime, we are not satisfied that the particular decision-maker(s) in this case were aware of it as the reasoning does not take this relevant factor into account.

As such, we find that DBS has made errors of law in failing to take into account the foregoing relevant factors and in reaching irrational conclusions on the evidence before it.

Finally, we make clear that we do not intend our findings in relation to this ground of appeal to indicate that we are satisfied that DoLS authorisations would have been granted for the locking of doors that occurred in this case. Indeed, we very much doubt that they would because it seems quite clear from the CQC report and the evidence that the reasons why the appellant and LS felt it was necessary to lock residents’ doors were essentially reasons arising from the poor management of the home: inadequate staffing levels, inadequate risk assessments, inadequate training of staff all contributing to the situation in which two carers felt that the only way they could be sure of keeping all residents safe was to lock doors. DoLS authorisations would not be granted in such circumstances, or would only be granted for the very shortest of periods until the situation could be regularised. However, we do accept, for the reasons we have set out above, the appellant’s evidence that she personally believed the locking of doors of those without capacity to consent was necessary in their best interests to keep them safe. We also accept her evidence that she was not at the time aware of the procedures that must be followed before any door is locked.