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Deprivation of Liberty safeguards

08 October 2014

Recently Community Care has published several news items relating to the surge in deprivation of liberty safeguard requests

This surge is due to a Supreme Court decision, which considered the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty.

The Court decided that there was a deprivation liberty where support arrangements involved continuous supervision and control and where the disabled person was not free to leave whatever arrangements were in place. The Court held that this is against Article 5 of the European Convention on Human Rights (the Right to liberty and security) which applies to everyone, regardless of their disability.

Where a deprivation of liberty is thought necessary it must be authorised by a court or by the procedures known as the deprivation of liberty safeguards (DOLS) in the Mental Capacity Act 2005 (‘the Act’) and subject to regular independent checks.

Liz Sayce, CEO of Disability Rights UK said:

“We believe that anyone deprived of their liberty should have strong human rights protections. It should not ‘just happen’ that people are deprived of their freedom - placed in a care or nursing home with no option to leave - because neither they nor their family have the knowledge or confidence to object. People who are struggling with capacity to make decisions may want to live in their own home with intensive support – as some people with dementia do, for instance – and placing them in a care or nursing home when it is not where they want to be raises profound questions of human rights.

We hope that when the UN Committee on the Rights of Persons with Disabilities examines the UK in 2015 they will look at whether the Deprivation of Liberty Safeguards are assuring people’s rights effectively enough. More broadly, we support the initiative in Northern Ireland to create one capacity law to give a clear, fair framework for decision-making when anyone faces challenges in making decisions, whatever the reason (from dementia to coma, from a mental health crisis to a learning difficult). This means getting rid of separate mental health law (which is discriminatory per se – why should you be treated against your will if you are perfectly capable of deciding yourself?) and also improves mental capacity law to meet the requirements of the UN Convention on the Rights of Persons with Disabilities.”  

Philip J Connolly, Policy and Communications Manager, Disability Rights UK said:

“Disability Rights UK are working on their response to the United Nations Committee’s investigation of UK Government record on implementing the convention on the rights of disabled people. We are concerned that these cases of deprivation of liberty are counter to article 14 on security of the person. The cases also add to our concerns that people may be becoming separated from family members by being placed in more remote institutional settings than the family home. We expect the committee and any inquiry to wish to examine this when it makes its own deliberations.” 

The Community Care articles highlight some of the fallout from this decision: