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 to lose your liberty.
Now, it is increasingly being removed from anyone deemed ‘incapable’ under a vague MCA test for life and not 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 Mental Capacity Act 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’ you lose every decision for life.
The Deprivation of Liberty Safeguards came into force in 2009 in the 2007 Mental Health Act, as an addition in Schedule A1 to the 2005 Mental Capacity Act.
Created 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 those who lacked ‘capacity’ under the MCA could, if in their ‘best interests’, be lawfully detained in a hospital or care home with every decision made for them, medication, who they see, where they go, when they wash.
HL v UK held England’s common law detention on the grounds of ‘necessity’ was incompatible with Article 5 of ECHR
This 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.
Neither could he be detained under the MCA as incapable, as this was not in force in 2004.
So the Bournewood Gap , as it is known , HL’s legal loophole was remedied by the MHA 2007, defining autism and learning disability as mental disorders, and the use of the MCA to assess an autistic /LD as ‘incapable’ and detainment in their ‘best interests’.
So, it would appear HL v UK gave the UK government the excuse to watertight its legislation to remove the liberty of the ‘incapable’ if in their ‘best interests’ thus avoiding any ECHR challenge on 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’..