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Newly introduced deprivation of liberty safeguards: anomalies and concerns

  • Ajit Shah (a1) (a2) and Chris Heginbotham (a1)
Summary

The European Court of Human Rights found that the care and treatment of HL in the ‘Bournewood case’ constituted infringement, in the form of deprivation of liberty, of his rights under Articles 5 (1) and 5 (4) of the European Convention on Human Rights. To prevent the infringement, the Deprivation of Liberty Safeguards were introduced into the Mental Capacity Act 2005 via the Mental Health Act 2007. The recent implementation of the Deprivation of Liberty Safeguards on 1 April 2009 has exposed some anomalies and higlighted some difficulties in its implemention and application, and these are described in the paper.

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Copyright
This is an Open Access article, distributed under the terms of the Creative Commons Attribution (CC-BY) license (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
Corresponding author
Professor Ajit Shah (ajit.shah@wlmht.nhs.uk)
Footnotes
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*

See editorial pp. 217–220, original paper pp. 221–225 and special article pp. 246–247, this issue.

Declaration of interest

Professor Chris Heginbotham was the Chief Executive of the Mental Health Act Commission until 31 March 2008.

Footnotes
References
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1 Times Law Report. Inability to consent makes detention illegal. The Times 1997; 8 December.
2 R v. Bournewood Community and Mental Health NHS Trust ex part L (1998) 3 WLR 108. House of Lords Judgment, A11ER 319.
3 Eastman, N, Peay, J. Bournewood: an indefensible gap in mental health law. Capacity is set to become a major clinicolegal issue. BMJ 1998; 317: 94–5.
4 HL v. UK (2004) European Court of Human Rights (application no. 45508/99).
5 Department of Health. Mental Health Act 2007. Department of Health, 2007 (http://www.opsi.gov.uk/acts/acts2007/pdf/ukpga_20070012_en.pdf).
6 Ministry of Justice. The Mental Capacity Act 2005. Deprivation of Liberty Safeguards. Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice. Ministry of Justice, 2008.
7 JE v DE and Surrey County Council (2006) EWHC 3459 (Fam).
8 Storck v Germany (2006) 43 EHRR 96.
9 Shah, AK, Banner, N, Heginbotham, C, Fulford, B. The early experience of old age psychiatrists in the application of the Mental Capacity Act 2005: a pilot study. Int Psychogeriatr 2009; 22: 147–57.
10 Department of Health. ‘Bournewood Consultation’: The Approach to be taken in Response to Judgement of the European Court of Human Rights in the ‘Bournewood’ case: 4. Department of Health, 2005 (http://www.dh.gov.uk/prod_consum_dh/groups/dh_digitalassets/@dh/@en/documents/digitalasset/dh_4108641.pdf).
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BJPsych Bulletin
  • ISSN: 1758-3209
  • EISSN: 1758-3217
  • URL: /core/journals/bjpsych-bulletin
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Newly introduced deprivation of liberty safeguards: anomalies and concerns

  • Ajit Shah (a1) (a2) and Chris Heginbotham (a1)
Submit a response

eLetters

To convey or not to convey?

Jaspreet S Phull, ST6 Forensic Psychiatry and DOLS Assessor
21 October 2010

Whilst I think that Shah et al produced a helpful overview of anomalies of the deprivation of liberty legislation, I think it is inaccurate to suggest that there is no authority to convey an individual using this legislation.

The process of conveyance with the Deprivation of Liberty Safeguards is an important issue. Conveyance can involve restraint: which does not usually amount to a deprivation of liberty and is covered using the Mental

Capacity Act under sections 5 and 6.

Paragraphs 2.14 and 2.15 of the DOLS Code of Practice attempt to deal with this, although it is worth examining recent case law for an answer.

In DCC v KH (2009), it was suggested that a standard authorisation would be sufficient to return an individual to the care home or hospital (from a place of residence), where the deprivation of liberty has been authorised, without any additional authority (1).

This judgment suggests that permission from the Court is not requiredwhen returning somebody to where there is a standard authorisation for him

or her to be deprived of his or her liberty.

In paragraph 2.14: “In almost all cases, it is likely that a person can be lawfully taken to a hospital or care home under the wider provisions of the Act, as long as it is considered that being in the hospital or care home will be in their best interests.”

Notably, paragraph 2.15 describes "exceptional circumstances" when conveyance could amount to a deprivation of liberty, and an order from the

Court of Protection (to provide a residence order) would be necessary(2).

With the majority of complaints regarding the Court of Protection originating from the length of the process and delays (3), effective planning for conveyance is advisable.

References:

1. DCC v KH (2009) COP 11729380

2. The Mental Capacity Act 2005: Deprivation of Liberty Safeguards. Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice. 2008. Para 2.14-2.15

3. Court of Protection 2009 Report, Judiciary of England and Wales, 2010.

4. Department of Health: Briefings on legal cases (http://www.dh.gov.uk/en/Healthcare/Mentalhealth/DH_111770)
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Conflict of interest: None Declared

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When to use DoLS, a further complication

Tony S Zigmond, Psychiatrist
09 June 2010

Shah and Heginbotham (1) describe a number of issues relating to the DoLS provisions of the Mental Capacity Act. A recent court case, DH NHS Foundation Trust and PS (By her litigation friend, The Official Solicitor), appears to complicate matters further. PS is a 55 year old lady with “a significant impairment in intellectual functioning as a consequence of a learning disability” who developed an endometrial adenocarcinoma . She required major surgery if her life was to be saved. It was agreed that she

lacked the capacity to make decisions about her healthcare and treatment.

She also suffered from hospital and needle phobias. Attempts to explain the need for surgery to PS had failed and on occasions she refused to attend hospital for treatment (even when she had initially agreed).

The Judge, Sir Nicholas Wall, agreed PS could be sedated to ensure that she attended hospital for the operation and did not “leave it prematurely after the operation had taken place”. She would “be given analgesic medication which

would have a sedative effect on her, thereby rendering it unlikely that she would be able to abscond. However, it might be necessary to use force as a last resort to ensure that she returned to her hospital bed”.

Sir Nicholas Wall then said “In my judgment, …… it will be necessary to detain PS in hospital during the period of post-operative recovery. After mature consideration, the Official Solicitor, on PS’s behalf, came to the view that it was not necessary to invoke the Deprivation of Liberty Provisions under Schedule 1 of the Act. I agree with that analysis. If it is in PS’s interests (as it plainly is) to have the operation, it is plainly in her interests to recover appropriately from it”.

Given that it was planned, if necessary, to use sedation and/or forceto prevent this patient leaving hospital she was clearly to be deprived of her liberty. The court determined that because the patient lacked capacity andit was in her best interest (2 necessary criteria for the use of DoLS) the DoL safeguards were unnecessary.

Other articles in this month’s The Psychiatrist (3, 4, 5) discuss theproblems surrounding the definition of Deprivation of Liberty and the interface between the DoLS provisions of the Mental Capacity Act and the Mental Health Act. It now seems there is a further difficulty in determining if the DoLS provisions are needed even if there is clear deprivation of liberty.

References1.Ajit Shah and Chris Heginbotham Newly introduced deprivation of liberty

safeguards: anomalies and concerns The Psychiatrist 2010 v. 34, p. 243-245.2.Thomas Selmes, Julie Robinson, Elizabeth Mills, Tim Branton, and Jeff Barlow Prevalence of deprivation of liberty: a survey of in-patient services The Psychiatrist 2010 v. 34, p. 221-225.3.Ruth Cairns, Genevra Richardson, and Matthew Hotopf Deprivation of liberty: Mental Capacity Act safeguards versus the Mental Health Act The Psychiatrist 2010 v. 34, p. 246-247.
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