The precarious legal nature and creation of Deprivation of Liberty Safeguards.

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In an age of  gay marriage affecting 1.6% of the population, transgender toilets and a vague Supreme Court pronouncement on wheel chairs on buses, our Local Authorities  encage over a million and increasing.

Before the Court of Protection was created, you had to be convicted of a crime or be so mentally unstable you were sectioned before you lost your liberty.

Now anyone declared ‘incapable’ can have their liberty removed for life and not just as a punishment or for treatment .

And worse still all aspects of their existence controlled.

So what law gives a court such God like power ?

s 4A MCA states;

This Act does not authorise any person (“D”) to deprive any other person (“P”) of his liberty.

But that is subject to the following provisions of this section, and section 4B.
D may deprive P of his liberty if, by doing so,

D is giving effect to a relevant decision of the court [or Protection] … D may deprive P of his liberty if the deprivation is authorised by Schedule A1 (hospital and care home residents: deprivation of liberty)

If it is not to give effect to a court of protection decision nothing in the MCA allows deprivation of a person’s liberty, even where they lack capacity unless it is necessary to provide life-sustaining treatment or to prevent a serious deterioration in their condition and this is the only practical way in the circumstances. See s4 B.

So there we have it, if the Court of Protection  decides it is in your ‘best interests’, they can deprive you of your liberty effectively for life.

The Deprivation of Liberty Safeguards came into force in 2009 included in the 2007 Mental Health Act, as an addition in Schedule A1 to the 2005 Mental Capacity Act.

Created solely on the excuse of the incompatibility between English Common law, not the MCA/MHA, and Article 5 of the European Convention on Human Rights ( right to liberty) revealed by HL v UK, the ‘Bournewood’ case.

The creation of DOLs enabled a procedure, whereby people who lacked ‘capacity’ under the MCA, could, if deemed necessary in their ‘best interests’ be lawfully detained in a hospital or care home.

HL v UK held England’s common law detention on the grounds of necessity was incompatible with Article 5 of ECHR

http://www.communitycare.co.uk/2005/02/07/the-bournewood-case/http://www.communitycare.co.uk/2005/02/07/the-bournewood-case/

The autistic gentleman HL, could not be detained under MHA 1983 as he was autistic and as non verbal deemed incapable of being able to consent to treatment.

HL’s legal loophole has since been remedied by the MHA 2007, definitively making behavioural disorders like autism, mental disorders and then using the MCA to assess ‘capacity’ and decide ‘best interests’.

http://www.communitycare.co.uk/2008/11/11/mental-health-acts-1983-and-2007/

So it would appear HL v UK, ironically, gave the UK government the excuse, to watertight its legislation to remove the liberty of the ‘incapable’ because it was in their ‘best interests’ avoiding any ECHR challenge on its lawfulness.

Article 5 litigation in the ECHR does not appear to inquire into the reasonableness and merits of the process by which liberty is removed, only that it is ’ lawful’..

 

Care Providers applied For Deprivation of Liberty over 0.45% of English Citizens with a 380% success increase since 2013/14.

DOLS PICTURE

Adult Protection Departments appear, on the excuse of ‘safeguarding’, to be facilitating ever more efficient/profitable care by LA commissioned providers.

Remember the horrific effect of  DOLs, removal of any objection as to when or what you eat, who you see, where you live, when you go out and where and even when you wash and how.

Forced medication and encagement.

Yet, once you are deemed MCA ‘incapable’, all that is needed by a private provider to do any of these and more is an effectively a rubber stamped DOL.

195,840 DOLS applications were received by councils from care providers in 2015-16.

The highest number recorded since DOLS were introduced in 2009, representing 454 DOLS per 100,000 adults in England.

As these are applications are by care providers, I assume these will not include new removals to residential care whose DOLs are granted by the Court of Protection.

So these need to be added.

We need statistics for the actual number of those in state ‘care’ subject to DOLS per se.

The statistics show large variations between regions .

The North East had almost three times as many (900 per 100,000) compared to London (319).

The remaining regions between 400 and 500 applications per 100,000 adults in 2015-16.

105,055 successful applications were reported in 2015-16, compared to 62,645 in 2014-15.

An increase of 68%, following a 380 % increase in successful applications between 2013-14, and 2014-15 (from 13,040 in 2013-14).

Of the 105,055 applications in 2015-16, 76,530 (73 per cent) were granted and 28,530 (27 per cent) were not granted.

This may point mainly to the fact, they were not a deprivation of a person’s liberty and therefore not needed.

The North East has the highest rate with 665 applications per 100,000 residents.

This is more than two and a half times the next highest region, the South West (258).

The other eight regions display some variation, with the South East having the lowest rate of 179 per 100,000 residents..

Although the proportion of applications granted was relatively consistent across most regions, only 44 per cent were granted in the South West, whereas 86 per cent were granted in the North East and London.

http://content.digital.nhs.uk/catalogue/PUB21814

Councils are unable to cope with the number of applications and backlogs have resulted in some urgent applications, not being signed off for seven months, rather than the seven days required by law.

Official figures released last week by NHS Digital revealed the DOLS case backlog hit 101,750 in April 2016, up from 75,000 the previous year.

http://www.communitycare.co.uk/2016/09/28/urgent-deprivation-liberty-cases-signed-seven-months/?utm_content=buffera1e8d&utm_medium=social&utm_source=pinterest.com&utm_campaign=buffer
Local Authorities have resorted to the use of desktop assessments, to grant deprivation of liberty orders in a bid to clear a backlog of more than 100,000 referrals
And DOLS trainer and a best interests assessors raised concerns that desktop assessments risked losing a key check and balance in the process.
http://www.communitycare.co.uk/2016/10/04/councils-turn-desktop-assessments-dols-backlog-hits-100000/?utm_content=buffer116d2&utm_medium=social&utm_source=pinterest.com&utm_campaign=buffer

So much for Magna Carta.