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 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’ 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 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
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’.
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’ 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’..