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

policy-process-procedure-red-dice-company-rules-practices-words-three-to-illustrate-organization-s-regulations-41368615

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’..

 

Advertisements

14 Comments

  1. Brilliant exposition.

    This situation might be due to the fact that 1.6% of the population are in Government or involved in the application of secondary legislation.

    When we get 1.6% of the population that have autism, learning disabilities, disabilities in Government or involved in secondary legislation then we will see a comparable outcome.

    Reply

  2. Reblogged this on | truthaholics and commented:
    “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’.”

    Reply

  3. Therefore, when the inept CoP and it’s incompetent so-called professionals {who “unfairly” objects to P seeing his/her Family and returning to his/her much loved Family Home} wilfully “fabricates” P’s capacity wrongfully using the MCA to prevent him from going home/seeing his Family. Isn’t that a Deprivation of Liberty” in a covert manner? They then mislead and say “P has capacity and he chose not to see his/her Family and not to return home”. While, on the other hand, he does not have such capacity and when he met a Family member {that they say he did not want to see}, he was happy to see him/her and even went back to the Family home and spent a lot enjoyable of time there. They are then became very upset about this. How can this be proportionate in any Democratic Society? This bears all the hallmarks of HL v the UK. This is with Strasbourg now. I’m hoping and praying for Justice.

    Reply

  4. The means by which the care provider excludes the ‘incapable’s family is largely irrelevant .

    Normally family are excluded, as an alternative to them regaining capacity to reject, is on the basis, it is in the incapacitated’s ‘best interests’ that visits are stopped, as they upset the incapacitated and/or interfere with his care or even ‘independence’.

    Even if it were a DOLs issue, which I doubt, unless he requests to visit family and it is refused, as we see it with be very easy to tick box a DOLs on the annual DOL review.

    I should imagine after only a very short time of ‘care’, families are being totally excluded, as they may cause problems with efficient ‘care’ and are the only independent oversight.

    As for justice, I do not understand what you mean by HLV UK is with Strasbourg ?

    The case went to the Court of Human Rights, as I posted under Article 5, and there was held to be a breach of Art 5, but since then, this has been remedied by England’s Law, as stated by MHA and MCA specially dealing with autistic /LD, and there is no need to use common law necessity detention, so today such detentions would be lawful and not in breach of Article 5.

    The best mode of attack would be here s8 HRA, right to family life, but no doubt on expert evidence exclusion would be held to be a proportionate intervention by the state in ‘best interests’.

    What we need, is the number of family members excluded, which could be found out by FOIA Notices on the local Health and Social Care Trusts that are providing the residential care.

    Although the care per se is provided by private companies and they may try to plead commercial confidentiality as an excuse for not revealing this information..

    Anyone with a mentally disabled relative and/or that relative themselves effectively have no
    rights. And certainly no justice or even humanity.

    Thank you for your comment it is very much appreciated.

    Best wishes, Finola

    Reply

    1. Fiona, In response to both you and Truthaholic remarks on HL v the UK, you all give incorrect information. Since HL v the UK ended in 2004 in the ECHR and since that No Changes were made by the UK Government to “watertight” similar breaches occurs. This is evidenced by:
      {1} G v E and Manchester City Council (Deputies and Litigation Friend) [2010] EWHC 2512. Article 8 breach.
      {2} Steven Neary; LB Hillingdon v Steven Neary [2011] EWHC 1377 (COP). Articles 5 and 8 of the ECHR breached.
      {3}Cheshire West and Chester Council v P [2011] EWCA Civ 1257. Article 5 was breached.
      {4} Re P and Q; P and Q v Surrey County Council; sub nom Re MIG and MEG [2011] EWCA Civ 190. Article 5 was breached.
      I am sure there are many more that eludes me now but, you all are wrong and when you add my son’s case case. It is yet another as UK JUdges shows no respect for opur Human Rights whatsoever.
      You also state that Families are excluded as they “upset the incapacitated and/or interfere with his care or even ‘independence’’. This might be true but, in my case, there was “No Evidence” of myself or his brother doing that. We supported his independece 100%. The problem was the dishonest relative {that LIED to them whilst crying false tears} was wrongfully believed given access to him by the CoP and did “every possible damage anyone can do to him, the SW and care providers” while,, breaching court orders and asking for my son to removed and placed in him/her care. Therefore, what was their concrete reason for severing our strong family bond? It just does not add up Fiona as the collusion, fabrication of capacity, discrimination against men, favouritism, prevention of contact and articles: 5, 6 and 8 breaches are “clear”. It’s in the hands of the ECHR tho.
      You state that “Anyone with a mentally disabled relative and/or that relative themselves effectively have no rights. And certainly no justice or even humanity”? This is a question I ask because of my sad experience but, this cannot also be lawful according this from Re R [2016] EWCOP 33
      27/7/2016. The Judgement clearly states ” R, now aged 23, has intellectual disabilities, epilepsy and autism. He is non-verbal, self-harms and requires a high level of support from others on a daily basis. Decision
      It was held that R was being deprived of his liberty, that deprivation being directly imputable to the State. As it was appropriate to consult R’s family, the views of the court appointed deputies were accounted for by the State. Therefore it was the State who were ultimately determining what was in R’s best interests. R was NOT free to leave the placement to return home. This is the same inhumane treatement that my son gets.

      I’ll appraciate your comments.
      Dan

      Reply

  5. Dear Dan,

    When I said the government ‘water tighted’ after 2004, it was in respect to similar cases to HL v UK , by passing the MCA in 2005 and amending the MHA, so that similar cases ie non verbal autistics/LD, could be lawfully detained, so that there was not a breach of Art 5 Right to Liberty.

    As you say, the COP is ignoring the HRA in so far as, they do not appear, to be applying it proportionately, particularly in respect to removal from family, and often/usually excluding even visits from family, therefore not a proportional interference with Article 8 right to family life.

    Also, in view of the almost invariable appointment of an Official Solicitor to represent the ‘incapacitated’, instead of a family member, and the fact that there is no other independent of state input into either COP hearing or ‘best interests’ decision making, the state appear to be disproportionately interfering with s6 Art 6 Right to a fair hearing.

    So I totally agree with you, that human rights are being disproportionately interfered with and even the MCA per se, is not being complied with, as it states as overriding principles, that wherever possible wishes of incapacitated should be taken into consideration, the least restrictive practice used, and that decisions should only be made if time and nature specific and need to be made at that time in an incapacitated’s ‘best interests’.

    The cases you quote have more flagrantly breached s5 and s8 by care providers not applying for Dols safeguards in respect to their care and are therefore not for not ‘lawful’.

    Thank you for your comment it is most appreciated.

    Best Wishes, Finola

    Reply

  6. Finola try Schwer on Care Mr Justice Charles comments on the family being RPR and costs. I have told Martin’s paid RPR that I do not want legal aid for Martin, I want to pay the barrister for Martin under my EPA, She has ignored me

    Reply

    1. Sorry Shirley can’t find your reference.

      Has your EPA been revoked ?

      The COP usually contacts Guardian Office and gets these revoked on grounds of RETROPECTIVE incapacity, if the COP declare a person incapable.

      if NOT then technically you rule…………….

      The problem as you know is, the state appoints all the players, and cuts the family out and pays them, and commissions and checks the care provider, so where is the independence- none, just a staggering amount of conflicts of interests, but all this is politically and legally created and allowed.

      Reply

      1. The EPA is not registered. as Martin has capacity (fluctuating). Martin’s epilepsy consultant has assumed capacity for the last 9 years as far as health is concerned, and as far as finances are concerned his brother and I assume capacity, and give him all the practical help possible. He has run his own bank account since he was 18 without a problem. The LA have over ruled the EPA CORRUPT and are now appointee CORRUPT CORRUPT AND MORE CORRUPT

      2. even if you had registered it it would have been voided on the court’s declaration. As is already too clear from Martin’s situation they do what they want to provide the ‘care’ they choose for profit. They ignore Martin’s clear capacity, the MCA ‘s law on when capacity should be assessed and as you have seen the individual’s right even to appoint a person you to deal with his affairs. And no one can or is even trying to stop them.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s