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Special Edition

Deprivation of liberty

 

Cheshire West - The Supreme Court:


"The most far-reaching human rights case heard in the UK for a decade." Simon Burrows

Supreme Court rules on what is a deprivation of liberty


Full judgement: click here

Lady Hale:
In my view, it is axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race. It may be that those rights have sometimes to be limited or restricted because of their disabilities, but the starting point should be the same as that for everyone else. This flows inexorable from the universal character of human rights, founded on the inherent dignity of all human beings, and is confirmed in the United Nations Convention on the Rights of Persons with Disabilities. Far from disability entitling the state to deny such people human rights, rather it places upon the state (and upon others) the duty to make reasonable accommodation to cater for the special needs of those with disabilities.
 
Those rights include the right to physical liberty, which is guaranteed by article 5 of the European Convention. This is not a right to do or to go where one pleases. It is a more focused right, not to be deprived of that physical liberty. But, as it seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference.
A gilded cage is still a cage”.


Summary of case by Alex Ruck Keene click here

History of Cheshire West click here
History of P and Q click here

House of Lords Report on MCA - Thousands may be unlawfully deprived of liberty


Critical report of level of understanding of the very simple Mental Capacity Act.

Deprivation of Liberty safeguards need to be reformed

“For many who are expected to comply with the Act it appears to be an optional add-on, far from being central to their working lives. The evidence presented to us concerns the health and social care sectors principally. In those sectors the prevailing cultures of paternalism (in health) and risk-aversion (in social care) have prevented the Act from becoming widely known or embedded. The empowering ethos has not been delivered. The rights conferred by the Act have not been widely realised. The duties imposed by the Act are not widely followed.”

House of Lords summary click here
Full text PDF version click here
Full text HDML version click here
Easy read version click here

Mysubmission to the House of Lords click here

Very helpful summary by Lucy Series click here
Alex Ruck Keene summary and comments click here

CQC make inspection of deprivation of liberty a priority


Care homes and hospitals beware. Unlawfully depriving people of their liberty will not look good on your reports.

Fourth annual report into the use of the Mental Capacity Act. click here
CQC chief executive David Behan said:
‘We expect more focus on reducing the restraint and restriction of vulnerable people lacking capacity.
‘We want to ensure people who are unable to consent to treatment because they lack capacity receive high quality care as a fundamental part of health and care services. While there has been an increase in the use of DoLS there is still much more that needs to be done to ensure people are appropriately cared for.
‘This year, CQC is strengthening its approach to monitoring this legislation and we will be working more closely with local authorities to support them in their roles as supervisory bodies.’

 

Professionals at risk from disciplinary bodies of they do not follow procedures prescribed by law


Making best interests decisions for those who have capacity is unlawful.
Making best interests decisions for those who are deprived of their liberty without authorisation is unlawful.
Holding best interests meetings without firstly establishing incapacity is unlawful.
Giving decision making powers to next of kin per se is unlawful.
 

Very useful links

Here are some useful links for keeping up-to-date with Mental Health & Incapacity legal issues:

Dave Sheppard
39 Essex Street
Lucy Series
Mental Health Law online
Twitter
Twitter
Website
Website
Email
Email
LinkedIn
LinkedIn

Low cost training


 


NEW COURSE


Deprivation of Liberty made simple


9th April

click here

 


2 DAY
LAW SOCIETY APPROVED

ADMISSION TO MHT PANEL



8th and 9th May


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Introduction to Forensic Patients


12th June

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Intensive Introduction to Mental Capacity Act and DOLS


9th July

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Intensive Introduction to Mental Capacity Act and DOLS


9th July

click here
 


MHA for experienced practitioners / legal update


23rd July

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