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Newly introduced deprivation of liberty safeguards: anomalies and concerns

Newly introduced deprivation of liberty safeguards: anomalies and concerns SPECIAL ARTICLES Newly introduced deprivation of liberty safeguards: anomalies and concerns 1,2 1 Ajit Shah, Chris Heginbotham The Psychiatrist (2010), 34,243-245, doi: 10.1192/pb.bp.109.026831 University of Central Lancashire, Summary The European Court of Human Rights found that the care and treatment Preston; West London Mental Health of HL in the ‘Bournewood case’ constituted infringement, in the form of deprivation of NHS Trust, London liberty, of his rights under Articles 5 (1) and 5 (4) of the European Convention on Correspondence to Professor Ajit Shah Human Rights. To prevent the infringement, the Deprivation of Liberty Safeguards ([email protected]) were introduced into the Mental Capacity Act 2005 via the Mental Health Act 2007. The recent implementation of the Deprivation of Liberty Safeguards on 1 April 2009 has exposed some anomalies and higlighted some difficulties in its implemention and application, and these are described in the paper. Declaration of interest Professor Chris Heginbotham was the Chief Executive of the Mental Health Act Commission until 31 March 2008. Background and treatment of HL in the Bournewood Community and Mental Health NHS Trust during a period in which he was There have been four judicial judgments on the not formally detained under the Mental Health Act 1983 ‘Bournewood case’ over the last decade: in the High Court, constituted infringement, in the form of deprivation of October 1997; the Court of Appeal, December 1997; the liberty, of his rights under Articles 5(1) and 5(4) of the House of Lords, June 1998; and the European Court of European Convention on Human Rights. Article 5(1) was Human Rights, 2004. A man with autism (HL), with no breached because the manner in which HL was deprived of ability to communicate consent or dissent to hospital liberty was not in accordance with ‘a procedure prescribed admission was admitted informally to the mental health by law’ (i.e. not under either mental health or other relevant unit of the Bournewood Community and Mental Health legislation). Article 5(4) was breached because HL was not NHS Trust following agitated behaviour at a day centre. He able to apply to a court to ascertain whether the deprivation was allowed to stay in hospital informally because he made of liberty was lawful. no attempts to leave. In September 1997, the High Court rejected the application for Judicial Review of the hospital’s decision to admit him informally, concluding that he had Deprivation of liberty safeguards not been detained and he had been admitted lawfully in accordance with the common law doctrine of necessity. An To prevent future breaches of the European Convention on application was made for a Judicial Review to quash the Human Rights or the Human Rights Act 1998, the Mental Trust’s decision to detain him. The Court of Appeal, on 2 Capacity Act has been amended via the Mental Health Act December 1997, concluded that the appellant had been 2007 amendments, to provide safeguards for people who unlawfully detained. This judgment was subsequently lack capacity, are at least 18 years old, have a mental overturned by the House of Lords on 25 June 1998, but disorder as defined in the amended Mental Health Act, and this was felt to be based on a legal technicality because it whose care or treatment involves deprivation of liberty considered whether the patient was ‘detained’ and if so within the framework of Article 5 of the European whether the detention could be justified under the common Convention on Human Rights, but who are not detained law doctrine of necessity. Despite this judgment finding HL under the Mental Health Act or a court order. These to be lawfully detained, Lord Steyn alluded to an ethical and safeguards are referred to as the deprivation of liberty a legal gap for the following reasoning, that ‘there can be no safeguards. Although the European Court of Human Rights justification for not giving to compliant incapacitated judgment on the Bournewood case referred to admission patients the same quality and degree of protection as is into hospital, the deprivation of liberty safeguards also given to patients admitted under the Act of 1983’. apply to people living in care homes. These safeguards may The European Court of Human Rights, on 5 October apply to those living in care homes because the issues 2004, found that the circumstances surrounding the care related to deprivation of liberty are similar in both settings, although length of stay, the purpose of admission and inspection processes are different in the two settings. The See editorial pp. 217-220, original paper pp. 221-225 and special article pp. 246-247, this issue. deprivation of liberty safeguards are supported by a Code of 243 SPECIAL ARTICLES Shah & Heginbotham Deprivation of liberty safeguards Practice. Six ‘qualifying requirements’ must be met before that the individual is under their continuous supervision 4,7,8 such individuals can be deprived of their liberty under the and control and is not free to leave. This absence of an safeguards. These may be considered as the Mental Capacity agreed legal definition of deprivation of liberty and potential Act equivalent of the criteria used for detention under the confusion with the less coercive ‘restriction’ of liberty is Mental Health Act. The recent implementation of the already creating difficulties for practitioners in determining safeguards on 1 April 2009 has exposed some anomalies what constitutes the threshold for deprivation of liberty, and higlighted some difficulties in its implemention and and was highlighted in a study of the Mental Capacity Act prior to the implementation of the deprivation of liberty application. safeguards. The statutory provisions under the deprivation of Who does the deprivation of liberty safeguards liberty safeguards do not include procedural protection for apply to? practitioners and patients similar to that in the Mental Health Act. There is no provision in the safeguards to The deprivation of liberty safeguards applies only to those ensure a power of entry where an individual refuses to be in hospital or care homes. Individuals living in supported assessed. Moreover, this legislation does not give practi- accommodation or in their own homes are excluded. tioners statutory powers to convey an individual to the Acutely mentally ill people are increasingly being treated designated care home or hospital, or to return those subject at home by home treatment teams, and many such to the safeguards to these settings after having left without individuals may be deprived of their liberty. Similarly, agreed leave. Absence of these provisions places many individuals with dementia looked after by family practitioners in a difficult position to ensure that members may also be deprived of their liberty (e.g. people individuals potentially eligible for the deprivation of liberty with dementia who are at risk of wandering and getting lost safeguards are assessed for authorisation and those subject may not be allowed to leave their home by family members). to the safeguards are resident in the designated setting. Theoretically, family members involved in such situations The government had estimated that 50 000 people could make a formal application to the Court of Protection lacking capacity are being unlawfully deprived of their to ensure that the rights of the individual are protected. liberty in care homes. Assuming that the governmental However, in practice, this is rarely done because the time estimate of 50 000 individuals requiring authorisation and expense involved make this unrealistic. under the deprivation of liberty safeguards is accurate, Deprivation of liberty safeguards only applies to those two to three times more individuals may need to be assessed with a ‘mental disorder’ as defined in the Mental Health Act, to filter out those not requiring authorisation under the whereas the Mental Capacity Act generally applies to safeguards. Another potential problem is that practitioners, anyone who is incapacitated because of ‘an impairment or managers and proprietors in hospital and care home disturbance of the mind or brain’. It is unclear, therefore, if settings may not be risk averse - in other words, they the safeguards can be applied to individuals lacking capacity may use the deprivation of liberty safeguards as a form of to consent to their stay in hospitals or care homes because insurance against being found in breach of the requirements of neurological disorders such as strokes. A similar of the Mental Capacity Act. Thus, many more individuals argument could be rehearsed for delirium, but the definition may be referred for assessment for authorisation under the of mental disorder in the Mental Health Act, used for deprivation of liberty safeguards. More and more anecdotal deprivation of liberty safeguards purposes, appears to evidence suggests that local authorities, primary care trusts, incorporate delirium. Clearly, if the safeguards do not care homes and hospitals are not sufficiently organised and apply in such circumstances then a large number of resourced to carry out that task. vulnerable individuals will be denied protection afforded The expectation was that on 1 April 2009, when the by the safeguards. deprivation of liberty safeguards were implemented, all Individuals with intellectual disability can only be individuals over the age of 18 years with a mental disorder subject to the provisions of the Mental Health Act if they in hospitals and care homes, who lacked the capacity to display abnormally aggressive or seriously irresponsible consent to their stay in those settings and were deprived of conduct. However, for the purpose of the deprivation of their liberty, would be referred for authorisation under the liberty safeguards these special provisions are disregarded. safeguards. Prior to 1 April 2009, such individuals were Thus, those with intellectual disability who do not display likely to have been cared for under the Mental Capacity Act abnormally aggressive or seriously irresponsible conduct in their best interests. Further anecdotal evidence suggests cannot be detained in hospital under the Mental Health Act, that a significant number of such individuals have failed the but they could be detained for up to 12 months under the eligibility test under the deprivation of liberty safeguards deprivation of liberty safeguards. (under this test the assessor determines if the individual should be detained under the Mental Health Act as opposed to the deprivation of liberty safeguards), but have Some anomalies and concerns subsequently required assessment for detention under the Deprivation of liberty is not defined clearly in the relevant Mental Health Act, thus possibly increasing the number of legislation and the accompanying Code of Practice. In the individuals detained under the Act. This has also created the three leading cases, the courts have said that the decisive additional difficulty of those individuals assessed not to be factor was whether the professionals exercise complete and suitable for detention under the deprivation of liberty effective control over the person’s care and movements, so safeguards because they fail the eligibility test and are also 244 SPECIAL ARTICLES Shah & Heginbotham Deprivation of liberty safeguards assessed not to fulfil the criteria for detention under the Box 1 Summary of concerns Mental Health Act. . Deprivation of liberty safeguards are not user friendly Thus, some individuals who are deprived of their . Deprivation of liberty safeguards are open to wide interpretation liberty are at potential risk of not being afforded protection . New assessment needed every time hospital or care home under the deprivation of liberty safeguards or the Mental changes Health Act; the safeguards and the amended Act are not designed in such a manner that one or the other has to be . Annual assessment needed even for individuals with dementia applied as a default position. The Code of Practice for both who have a progressive disorder do not formally address this anomaly, which suggests that . No automatic review of the type afforded in the Mental Health the Court of Protection may be required to intervene in Act such individual cases. . Legal aid scheme for application to Court of Protection limited The deprivation of liberty safeguards legislation is not . Does not provide any mechanism for short-term deprivation of user friendly and is open to a wide range of individual liberty such as for respite admissions into hospital or care interpretations by those who apply it (Box 1). A new homes assessment for the deprivation of liberty safeguards must be obtained whenever a person is transferred between care homes or hospitals. For example, elderly people with vulnerable individuals from the protection afforded by it. It dementia, who are the highest risk group to require is important that those who are involved in the implementa- detention under the safeguards and who are at high risk tion and application of the safeguards are aware of these of medical morbidity, may require regular moves between issues as they may lead to diversion of scarce resources and care homes and hospitals. Additionally, the whole process possible disruption and damage to services. It is likely that must be repeated at least at yearly intervals, and this may be many of the issues highlighted in this paper may only be important in those with dementia because it is a progressive resolved with emerging case law. disorder where cognitive impairment increases over time; and the circumstances leading to the original detention under deprivation of liberty safeguards are unlikely to change over time. Moreover, although individuals detained About the authors under the safeguards, their representative and their Professor Ajit Shah is Professor of Ageing, Ethnicity and Mental Health at independent mental capacity advocate can apply to their the International School for Communities, Rights and Inclusion, University local authority, primary care trust or the Court of of Central Lancashire, Preston, and also a Consultant Psychiatrist at the West London Mental Health NHS Trust. Professor Chris Heginbotham is Protection for a review of detention under the safeguards, Professor of Mental Health Policy and Management at the Institute for they are not afforded automatic reviews of the type required Philosophy, Diversity and Mental Health, Centre for Ethnicity and Health, from the mental health review tribunals for those detained University of Central Lancashire, Preston. under the Mental Health Act. Furthermore, although the European Convention on Human Rights requires legal representation and access to a References court that can review the lawfulness of the detention, the legal aid scheme for the deprivation of liberty safeguards is 1 Times Law Report. Inability to consent makes detention illegal. The Times 1997; 8 December. minimal. Also, there is no clear provision in the safeguards to cover short periods of deprivation of liberty for 2 R v. Bournewood Community and Mental Health NHS Trust ex part L (1998) 3 WLR 108. House of Lords Judgment, A11ER 319. individuals needing regular respite care, which is not infrequently used in the clinical management of people 3 Eastman N, Peay J. Bournewood: an indefensible gap in mental health law. Capacity is set to become a major clinicolegal issue. BMJ 1998; 317: with dementia, other than an assessment for authorisation 94-5. underthe safeguards forevery respite admission.Institutions that deprive incapacitated persons of their liberty must be 4 HL v. UK (2004) European Court of Human Rights (application no. 45508/99). subject to supervision by the state, but the Mental Health Act Commission was abolished on the day the deprivation of 5 Department of Health. Mental Health Act 2007. Department of Health, 2007 (http://www.opsi.gov.uk/acts/acts2007/pdf/ukpga_20070012_ liberty safeguards were implemented, and the new Care en.pdf). Quality Commission responsible for this task only came into force on the same day. This poor timing may have important 6 Ministry of Justice. The Mental Capacity Act 2005. Deprivation of Liberty Safeguards. Code of Practice to supplement the main Mental Capacity Act implications for the effective and accurate implementation 2005 Code of Practice. Ministry of Justice, 2008. of the safeguards. 7 JE v DE and Surrey County Council (2006) EWHC 3459 (Fam). 8 Storck v Germany (2006) 43 EHRR 96. Conclusion 9 Shah AK, Banner, N, Heginbotham C, Fulford B. The early experience of old age psychiatrists in the application of the Mental Capacity Act The principles that lie behind the deprivation of liberty 2005: a pilot study. Int Psychogeriatr 2009; 22:147-57. safeguards are ambitious and admirable. However, there are 10 Department of Health. ‘Bournewood Consultation’: The Approach to be a number of problems: several anomalies are likely to taken in Response to Judgement of the European Court of Human Rights in exclude vulnerable individuals from the protection afforded the ‘Bournewood’ case: 4. Department of Health, 2005 (http:// by the safeguards; and a range of practical issues related to www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/ the direct application of the safeguards may also exclude documents/digitalasset/dh_4108641.pdf). http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The Psychiatrist Unpaywall

Newly introduced deprivation of liberty safeguards: anomalies and concerns

Shah, Ajit; Heginbotham, Chris
The Psychiatrist – Jun 1, 2010
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10.1192/pb.bp.109.026831
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SPECIAL ARTICLES Newly introduced deprivation of liberty safeguards: anomalies and concerns 1,2 1 Ajit Shah, Chris Heginbotham The Psychiatrist (2010), 34,243-245, doi: 10.1192/pb.bp.109.026831 University of Central Lancashire, Summary The European Court of Human Rights found that the care and treatment Preston; West London Mental Health of HL in the ‘Bournewood case’ constituted infringement, in the form of deprivation of NHS Trust, London liberty, of his rights under Articles 5 (1) and 5 (4) of the European Convention on Correspondence to Professor Ajit Shah Human Rights. To prevent the infringement, the Deprivation of Liberty Safeguards ([email protected]) were introduced into the Mental Capacity Act 2005 via the Mental Health Act 2007. The recent implementation of the Deprivation of Liberty Safeguards on 1 April 2009 has exposed some anomalies and higlighted some difficulties in its implemention and application, and these are described in the paper. Declaration of interest Professor Chris Heginbotham was the Chief Executive of the Mental Health Act Commission until 31 March 2008. Background and treatment of HL in the Bournewood Community and Mental Health NHS Trust during a period in which he was There have been four judicial judgments on the not formally detained under the Mental Health Act 1983 ‘Bournewood case’ over the last decade: in the High Court, constituted infringement, in the form of deprivation of October 1997; the Court of Appeal, December 1997; the liberty, of his rights under Articles 5(1) and 5(4) of the House of Lords, June 1998; and the European Court of European Convention on Human Rights. Article 5(1) was Human Rights, 2004. A man with autism (HL), with no breached because the manner in which HL was deprived of ability to communicate consent or dissent to hospital liberty was not in accordance with ‘a procedure prescribed admission was admitted informally to the mental health by law’ (i.e. not under either mental health or other relevant unit of the Bournewood Community and Mental Health legislation). Article 5(4) was breached because HL was not NHS Trust following agitated behaviour at a day centre. He able to apply to a court to ascertain whether the deprivation was allowed to stay in hospital informally because he made of liberty was lawful. no attempts to leave. In September 1997, the High Court rejected the application for Judicial Review of the hospital’s decision to admit him informally, concluding that he had Deprivation of liberty safeguards not been detained and he had been admitted lawfully in accordance with the common law doctrine of necessity. An To prevent future breaches of the European Convention on application was made for a Judicial Review to quash the Human Rights or the Human Rights Act 1998, the Mental Trust’s decision to detain him. The Court of Appeal, on 2 Capacity Act has been amended via the Mental Health Act December 1997, concluded that the appellant had been 2007 amendments, to provide safeguards for people who unlawfully detained. This judgment was subsequently lack capacity, are at least 18 years old, have a mental overturned by the House of Lords on 25 June 1998, but disorder as defined in the amended Mental Health Act, and this was felt to be based on a legal technicality because it whose care or treatment involves deprivation of liberty considered whether the patient was ‘detained’ and if so within the framework of Article 5 of the European whether the detention could be justified under the common Convention on Human Rights, but who are not detained law doctrine of necessity. Despite this judgment finding HL under the Mental Health Act or a court order. These to be lawfully detained, Lord Steyn alluded to an ethical and safeguards are referred to as the deprivation of liberty a legal gap for the following reasoning, that ‘there can be no safeguards. Although the European Court of Human Rights justification for not giving to compliant incapacitated judgment on the Bournewood case referred to admission patients the same quality and degree of protection as is into hospital, the deprivation of liberty safeguards also given to patients admitted under the Act of 1983’. apply to people living in care homes. These safeguards may The European Court of Human Rights, on 5 October apply to those living in care homes because the issues 2004, found that the circumstances surrounding the care related to deprivation of liberty are similar in both settings, although length of stay, the purpose of admission and inspection processes are different in the two settings. The See editorial pp. 217-220, original paper pp. 221-225 and special article pp. 246-247, this issue. deprivation of liberty safeguards are supported by a Code of 243 SPECIAL ARTICLES Shah & Heginbotham Deprivation of liberty safeguards Practice. Six ‘qualifying requirements’ must be met before that the individual is under their continuous supervision 4,7,8 such individuals can be deprived of their liberty under the and control and is not free to leave. This absence of an safeguards. These may be considered as the Mental Capacity agreed legal definition of deprivation of liberty and potential Act equivalent of the criteria used for detention under the confusion with the less coercive ‘restriction’ of liberty is Mental Health Act. The recent implementation of the already creating difficulties for practitioners in determining safeguards on 1 April 2009 has exposed some anomalies what constitutes the threshold for deprivation of liberty, and higlighted some difficulties in its implemention and and was highlighted in a study of the Mental Capacity Act prior to the implementation of the deprivation of liberty application. safeguards. The statutory provisions under the deprivation of Who does the deprivation of liberty safeguards liberty safeguards do not include procedural protection for apply to? practitioners and patients similar to that in the Mental Health Act. There is no provision in the safeguards to The deprivation of liberty safeguards applies only to those ensure a power of entry where an individual refuses to be in hospital or care homes. Individuals living in supported assessed. Moreover, this legislation does not give practi- accommodation or in their own homes are excluded. tioners statutory powers to convey an individual to the Acutely mentally ill people are increasingly being treated designated care home or hospital, or to return those subject at home by home treatment teams, and many such to the safeguards to these settings after having left without individuals may be deprived of their liberty. Similarly, agreed leave. Absence of these provisions places many individuals with dementia looked after by family practitioners in a difficult position to ensure that members may also be deprived of their liberty (e.g. people individuals potentially eligible for the deprivation of liberty with dementia who are at risk of wandering and getting lost safeguards are assessed for authorisation and those subject may not be allowed to leave their home by family members). to the safeguards are resident in the designated setting. Theoretically, family members involved in such situations The government had estimated that 50 000 people could make a formal application to the Court of Protection lacking capacity are being unlawfully deprived of their to ensure that the rights of the individual are protected. liberty in care homes. Assuming that the governmental However, in practice, this is rarely done because the time estimate of 50 000 individuals requiring authorisation and expense involved make this unrealistic. under the deprivation of liberty safeguards is accurate, Deprivation of liberty safeguards only applies to those two to three times more individuals may need to be assessed with a ‘mental disorder’ as defined in the Mental Health Act, to filter out those not requiring authorisation under the whereas the Mental Capacity Act generally applies to safeguards. Another potential problem is that practitioners, anyone who is incapacitated because of ‘an impairment or managers and proprietors in hospital and care home disturbance of the mind or brain’. It is unclear, therefore, if settings may not be risk averse - in other words, they the safeguards can be applied to individuals lacking capacity may use the deprivation of liberty safeguards as a form of to consent to their stay in hospitals or care homes because insurance against being found in breach of the requirements of neurological disorders such as strokes. A similar of the Mental Capacity Act. Thus, many more individuals argument could be rehearsed for delirium, but the definition may be referred for assessment for authorisation under the of mental disorder in the Mental Health Act, used for deprivation of liberty safeguards. More and more anecdotal deprivation of liberty safeguards purposes, appears to evidence suggests that local authorities, primary care trusts, incorporate delirium. Clearly, if the safeguards do not care homes and hospitals are not sufficiently organised and apply in such circumstances then a large number of resourced to carry out that task. vulnerable individuals will be denied protection afforded The expectation was that on 1 April 2009, when the by the safeguards. deprivation of liberty safeguards were implemented, all Individuals with intellectual disability can only be individuals over the age of 18 years with a mental disorder subject to the provisions of the Mental Health Act if they in hospitals and care homes, who lacked the capacity to display abnormally aggressive or seriously irresponsible consent to their stay in those settings and were deprived of conduct. However, for the purpose of the deprivation of their liberty, would be referred for authorisation under the liberty safeguards these special provisions are disregarded. safeguards. Prior to 1 April 2009, such individuals were Thus, those with intellectual disability who do not display likely to have been cared for under the Mental Capacity Act abnormally aggressive or seriously irresponsible conduct in their best interests. Further anecdotal evidence suggests cannot be detained in hospital under the Mental Health Act, that a significant number of such individuals have failed the but they could be detained for up to 12 months under the eligibility test under the deprivation of liberty safeguards deprivation of liberty safeguards. (under this test the assessor determines if the individual should be detained under the Mental Health Act as opposed to the deprivation of liberty safeguards), but have Some anomalies and concerns subsequently required assessment for detention under the Deprivation of liberty is not defined clearly in the relevant Mental Health Act, thus possibly increasing the number of legislation and the accompanying Code of Practice. In the individuals detained under the Act. This has also created the three leading cases, the courts have said that the decisive additional difficulty of those individuals assessed not to be factor was whether the professionals exercise complete and suitable for detention under the deprivation of liberty effective control over the person’s care and movements, so safeguards because they fail the eligibility test and are also 244 SPECIAL ARTICLES Shah & Heginbotham Deprivation of liberty safeguards assessed not to fulfil the criteria for detention under the Box 1 Summary of concerns Mental Health Act. . Deprivation of liberty safeguards are not user friendly Thus, some individuals who are deprived of their . Deprivation of liberty safeguards are open to wide interpretation liberty are at potential risk of not being afforded protection . New assessment needed every time hospital or care home under the deprivation of liberty safeguards or the Mental changes Health Act; the safeguards and the amended Act are not designed in such a manner that one or the other has to be . Annual assessment needed even for individuals with dementia applied as a default position. The Code of Practice for both who have a progressive disorder do not formally address this anomaly, which suggests that . No automatic review of the type afforded in the Mental Health the Court of Protection may be required to intervene in Act such individual cases. . Legal aid scheme for application to Court of Protection limited The deprivation of liberty safeguards legislation is not . Does not provide any mechanism for short-term deprivation of user friendly and is open to a wide range of individual liberty such as for respite admissions into hospital or care interpretations by those who apply it (Box 1). A new homes assessment for the deprivation of liberty safeguards must be obtained whenever a person is transferred between care homes or hospitals. For example, elderly people with vulnerable individuals from the protection afforded by it. It dementia, who are the highest risk group to require is important that those who are involved in the implementa- detention under the safeguards and who are at high risk tion and application of the safeguards are aware of these of medical morbidity, may require regular moves between issues as they may lead to diversion of scarce resources and care homes and hospitals. Additionally, the whole process possible disruption and damage to services. It is likely that must be repeated at least at yearly intervals, and this may be many of the issues highlighted in this paper may only be important in those with dementia because it is a progressive resolved with emerging case law. disorder where cognitive impairment increases over time; and the circumstances leading to the original detention under deprivation of liberty safeguards are unlikely to change over time. Moreover, although individuals detained About the authors under the safeguards, their representative and their Professor Ajit Shah is Professor of Ageing, Ethnicity and Mental Health at independent mental capacity advocate can apply to their the International School for Communities, Rights and Inclusion, University local authority, primary care trust or the Court of of Central Lancashire, Preston, and also a Consultant Psychiatrist at the West London Mental Health NHS Trust. Professor Chris Heginbotham is Protection for a review of detention under the safeguards, Professor of Mental Health Policy and Management at the Institute for they are not afforded automatic reviews of the type required Philosophy, Diversity and Mental Health, Centre for Ethnicity and Health, from the mental health review tribunals for those detained University of Central Lancashire, Preston. under the Mental Health Act. Furthermore, although the European Convention on Human Rights requires legal representation and access to a References court that can review the lawfulness of the detention, the legal aid scheme for the deprivation of liberty safeguards is 1 Times Law Report. Inability to consent makes detention illegal. The Times 1997; 8 December. minimal. Also, there is no clear provision in the safeguards to cover short periods of deprivation of liberty for 2 R v. Bournewood Community and Mental Health NHS Trust ex part L (1998) 3 WLR 108. House of Lords Judgment, A11ER 319. individuals needing regular respite care, which is not infrequently used in the clinical management of people 3 Eastman N, Peay J. Bournewood: an indefensible gap in mental health law. Capacity is set to become a major clinicolegal issue. BMJ 1998; 317: with dementia, other than an assessment for authorisation 94-5. underthe safeguards forevery respite admission.Institutions that deprive incapacitated persons of their liberty must be 4 HL v. UK (2004) European Court of Human Rights (application no. 45508/99). subject to supervision by the state, but the Mental Health Act Commission was abolished on the day the deprivation of 5 Department of Health. Mental Health Act 2007. Department of Health, 2007 (http://www.opsi.gov.uk/acts/acts2007/pdf/ukpga_20070012_ liberty safeguards were implemented, and the new Care en.pdf). Quality Commission responsible for this task only came into force on the same day. This poor timing may have important 6 Ministry of Justice. The Mental Capacity Act 2005. Deprivation of Liberty Safeguards. Code of Practice to supplement the main Mental Capacity Act implications for the effective and accurate implementation 2005 Code of Practice. Ministry of Justice, 2008. of the safeguards. 7 JE v DE and Surrey County Council (2006) EWHC 3459 (Fam). 8 Storck v Germany (2006) 43 EHRR 96. Conclusion 9 Shah AK, Banner, N, Heginbotham C, Fulford B. The early experience of old age psychiatrists in the application of the Mental Capacity Act The principles that lie behind the deprivation of liberty 2005: a pilot study. Int Psychogeriatr 2009; 22:147-57. safeguards are ambitious and admirable. However, there are 10 Department of Health. ‘Bournewood Consultation’: The Approach to be a number of problems: several anomalies are likely to taken in Response to Judgement of the European Court of Human Rights in exclude vulnerable individuals from the protection afforded the ‘Bournewood’ case: 4. Department of Health, 2005 (http:// by the safeguards; and a range of practical issues related to www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/ the direct application of the safeguards may also exclude documents/digitalasset/dh_4108641.pdf).

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The Psychiatrist – Unpaywall

Published: Jun 1, 2010

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