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Chapter 4 - Deprivation of Liberty Safeguards: Past, Present and Future
- Edited by Rebecca Jacob, University of Cambridge, Michael Gunn, Staffordshire University, Anthony Holland, University of Cambridge
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- Book:
- Mental Capacity Legislation
- Published online:
- 17 June 2019
- Print publication:
- 27 June 2019, pp 56-73
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Summary
The DoLS framework is contained in Schedule 1A to the Mental Capacity Act (MCA) 2005 and applies to all hospitals (general and psychiatric) and care homes (including private care homes) but not to deprivation of liberty in supported living, shared lives, and private and domestic settings. The hospital and care home must apply for authorisation of deprivation of liberty from the ‘supervisory body’ (local authorities in England and in Wales but to the Local Health Board for hospital deprivation of liberty in Wales).
4 - Provisions of the Mental Capacity Act 2005
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- By Susan F. Welsh, Fulbourn Hospital, Cambridgeshire & Peterborough NHS Foundation Trust, Cambridge, UK
- Edited by Rebecca Jacob, Michael Gunn, Anthony Holland
-
- Book:
- Mental Capacity Legislation
- Published by:
- Royal College of Psychiatrists
- Published online:
- 25 February 2017, pp 54-77
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Summary
This chapter provides a summary of the Mental Capacity Act 2005 (MCA) and its Code of Practice in certain areas detailed under Part 1 of the Act. More comprehensive details about each aspect of the Act can be found in the relevant sections of the Act and the corresponding summaries in the Code of Practice (Department for Constitutional Affairs, 2007). Referencing is provided where aspects of this chapter stray from the details of the Act and its Code.
Part 1 of the legislative framework of the MCA contains a number of provisions, including those relating to:
• acts in connection with care and treatment – a general (statutory) authority to act reasonably when providing care and treatment (sections 5 and 6)
• provisions for paying for necessities (sections 7 and 8)
• lasting powers of attorney (sections 9–14)
• the jurisdiction of the Court of Protection (sections 15–23)
• advance decisions to refuse treatment (sections 24–26)
• excluded decisions (sections 27–29), including treatment for mental disorder under Part 4 of the Mental Health Act 1983
• research (sections 30–34)
• the independent mental capacity advocate service (sections 35–41)
• codes of practice (section 42)
• codes of practice: procedure (section 43)
• the offence of ill-treatment or neglect (section 44), the ill-treatment or wilful neglect of a person who lacks capacity carries a term of imprisonment of up to 5 years.
Part 2 of the MCA establishes:
• a new superior court of record called the Court of Protection, with its judges and procedures (sections 45–56); this Court provides a definitive legal judgment when necessary, and can determine: the validity or otherwise of any document or decision made regarding a person lacking capacity; an individual's capacity or otherwise to make a particular decision; ‘best interests’
• a new statutory official, the Public Guardian, to support the work of the Court (sections 57–60)
• Court of Protection visitors (section 61).
In accordance with sections 42–43 of the MCA, the Code of Practice was issued by the Department of Constitutional Affairs (now the Ministry of Justice) in April 2007, after a period of consultation.
5 - The Deprivation of Liberty Safeguards
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- By Susan F. Welsh, Fulbourn Hospital, Cambridgeshire & Peterborough NHS Foundation Trust, Cambridge, UK, Amanda Keeling, University of Nottingham, Nottingham, UK
- Edited by Rebecca Jacob, Michael Gunn, Anthony Holland
-
- Book:
- Mental Capacity Legislation
- Published by:
- Royal College of Psychiatrists
- Published online:
- 25 February 2017, pp 78-95
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- Chapter
- Export citation
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Summary
In terms of their introduction to the statute book, the Deprivation of Liberty Safeguards (DoLS) were created as an amendment to the Mental Capacity Act 2005 through the vehicle of revision of the Mental Health Act 1983 in 2007. They came into statutory force on 1 April 2009 in England and Wales. The legislation puts in place a procedure through which adults over the age of 18, who are shown to lack capacity to decide on their care and treatment, can be deprived of their liberty in a hospital or care home.
The purpose of the safeguards was to deal with an issue highlighted in litigation by Mr HL that concluded in the European Court of Human Rights. This issue, which became known as the Bournewood gap, concerns the rights of individuals whom it has not been considered necessary to detain under sections 2 or 3 of the MHA, but who are in hospital as informal patients without having consented to such admission.
The essence of Mr HL's claim was that he had been unlawfully detained in hospital without the use of the Mental Health Act (MHA). The counterclaim was that he was an uncomplaining man, who was not capable of making decisions and who was lawfully present in hospital by virtue of section 131 of the MHA, which provides for informal admission, and it was felt that the ‘doctrine of necessity’ justified the treatment and restrictions imposed on him by Bournewood Hospital. The European Court found in favour of Mr HL because it took the view that there was a breach of Article 5 of the European Convention on Human Rights, which is part of English law by virtue of the Human Rights Act 1998 (HL v The United Kingdom, 2004). Article 5(1) provides that: ‘Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law’. The cases listed include: ‘the lawful detention of persons for the prevention of the spreading of infectious disease, of persons of unsound mind, alcoholics or drug addicts, or vagrants’ [italics added].
Crossing the Rubicon? Legal developments in assisted suicide
- Susan F. Welsh
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- Journal:
- Advances in Psychiatric Treatment / Volume 20 / Issue 6 / November 2014
- Published online by Cambridge University Press:
- 02 January 2018, pp. 369-377
- Print publication:
- November 2014
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- Article
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UK law on assisted suicide and euthanasia is very clear: it is unlawful. However, there have been successive proposals for changes to legislation in this area (in England and Scotland) and a series of individual challenges to current legislation in the courts. This article does not seek to debate the profound ethical arguments that surround this emotive subject, but instead to portray how the law, through court judgment and legislative proposals, has wrestled with opposing views, particularly over the past decade or so, as the impact of the Human Rights Act has presented unique challenges. Some of our closest European neighbours have diverse legislation that could influence our own legislature, and, from across the Atlantic, the Oregon Death with Dignity Act is being mirrored in proposals to change the law in the UK.
Learning Objectives• Be able to recognise the impact of the Human Rights Act on challenges to legislation relating to assisted suicide.
• Understand proposals for statute.
• Appreciate how certain other countries legislate in this area.
4 - Provisions of the Mental Capacity Act
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- By Susan F. Welsh, Consultant Psychiatrist in Older People's Mental Health, Fulbourn Hospital, Cambridgeshire & Peterborough NHS Foundation Trust, Cambridge, UK
- Edited by Rebecca Jacob, Michael Gunn, Anthony Holland
-
- Book:
- Mental Capacity Legislation
- Published online:
- 01 January 2018
- Print publication:
- 01 July 2013, pp 54-77
-
- Chapter
- Export citation
-
Summary
This chapter provides a summary of the Mental Capacity Act 2005 (MCA) and its Code of Practice in certain areas detailed under Part 1 of the Act. More comprehensive details about each aspect of the Act can be found in the relevant sections of the Act and the corresponding summaries in the Code of Practice (Department for Constitutional Affairs, 2007). Referencing is provided where aspects of this chapter stray from the details of the Act and its Code.
Part 1 of the legislative framework of the MCA contains a number of provisions, including those relating to:
• acts in connection with care and treatment – a general (statutory) authority to act reasonably when providing care and treatment (sections 5 and 6)
• provisions for paying for necessities (sections 7 and 8)
• lasting powers of attorney (sections 9–14)
• the jurisdiction of the Court of Protection (sections 15–23)
• advance decisions to refuse treatment (sections 24–26)
• excluded decisions (sections 27–29), including treatment for mental disorder under Part 4 of the Mental Health Act 1983
• research (sections 30–34)
• the independent mental capacity advocate service (sections 35–41)
• codes of practice (section 42)
• codes of practice: procedure (section 43)
• the offence of ill-treatment or neglect (section 44), the ill-treatment or wilful neglect of a person who lacks capacity carries a term of imprisonment of up to 5 years.
Part 2 of the MCA establishes:
• a new superior court of record called the Court of Protection, with its judges and procedures (sections 45–56); this Court provides a definitive legal judgment when necessary, and can determine: the validity or otherwise of any document or decision made regarding a person lacking capacity; an individual's capacity or otherwise to make a particular decision; ‘best interests’
• a new statutory official, the Public Guardian, to support the work of the Court (sections 57–60)
• Court of Protection visitors (section 61).
In accordance with sections 42–43 of the MCA, the Code of Practice was issued by the Department of Constitutional Affairs (now the Ministry of Justice) in April 2007, after a period of consultation. It explains the day-today operation of the Act and provides useful real-life examples for professionals and non-professionals on how to apply the legislation in practice. The Code has statutory force.
5 - The Deprivation of Liberty Safeguards
-
- By Susan F. Welsh, Consultant Psychiatrist in Older People's Mental Health, Fulbourn Hospital, Cambridgeshire & Peterborough NHS Foundation Trust, Cambridge, UK, Amanda Keeling
- Edited by Rebecca Jacob, Michael Gunn, Anthony Holland
-
- Book:
- Mental Capacity Legislation
- Published online:
- 01 January 2018
- Print publication:
- 01 July 2013, pp 78-95
-
- Chapter
- Export citation
-
Summary
In terms of their introduction to the statute book, the Deprivation of Liberty Safeguards (DoLS) were created as an amendment to the Mental Capacity Act 2005 through the vehicle of revision of the Mental Health Act 1983 in 2007. They came into statutory force on 1 April 2009 in England and Wales. The legislation puts in place a procedure through which adults over the age of 18, who are shown to lack capacity to decide on their care and treatment, can be deprived of their liberty in a hospital or care home.
The purpose of the safeguards was to deal with an issue highlighted in litigation by Mr HL that concluded in the European Court of Human Rights. This issue, which became known as the Bournewood gap, concerns the rights of individuals whom it has not been considered necessary to detain under sections 2 or 3 of the MHA, but who are in hospital as informal patients without having consented to such admission.
The essence of Mr HL's claim was that he had been unlawfully detained in hospital without the use of the Mental Health Act (MHA). The counterclaim was that he was an uncomplaining man, who was not capable of making decisions and who was lawfully present in hospital by virtue of section 131 of the MHA, which provides for informal admission, and it was felt that the ‘doctrine of necessity’ justified the treatment and restrictions imposed on him by Bournewood Hospital. The European Court found in favour of Mr HL because it took the view that there was a breach of Article 5 of the European Convention on Human Rights, which is part of English law by virtue of the Human Rights Act 1998 (HL v The United Kingdom, 2004). Article 5(1) provides that: ‘Everyone has the right to liberty and security of the person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law’. The cases listed include: ‘the lawful detention of persons for the prevention of the spreading of infectious disease, of persons of unsound mind, alcoholics or drug addicts, or vagrants’ [italics added].
Contributors
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- By Joanne R. Adler, David A. Alexander, Laurence Alison, Catherine C. Ayoub, Peter Banister, Anthony R. Beech, Amanda Biggs, Julian Boon, Adrian Bowers, Neil Brewer, Eric Broekaert, Paula Brough, Jennifer M. Brown, Kevin Browne, Elizabeth A. Campbell, David Canter, Michael Carlin, Shihning Chou, Martin A. Conway, Claire Cooke, David Cooke, Ilse Derluyn, Robert J. Edelmann, Vincent Egan, Tom Ellis, Marie Eyre, David P. Farrington, Seena Fazel, Daniel B. Fishman, Victoria Follette, Katarina Fritzon, Elizabeth Gilchrist, Nathan D. Gillard, Renée Gobeil, Agnieszka Golec de Zavala, Jane Goodman-Delahunty, Lynsey Gozna, Don Grubin, Gisli H. Gudjonsson, Helinä Häkkänen-Nyholm, Guy Hall, Nathan Hall, Roisin Hall, Sean Hammond, Leigh Harkins, Grant T. Harris, Camilla Herbert, Robert D. Hoge, Todd E. Hogue, Clive R. Hollin, Lorraine Hope, Miranda A. H. Horvath, Kevin Howells, Carol A. Ireland, Jane L. Ireland, Mark Kebbell, Michael King, Bruce D. Kirkcaldy, Heidi La Bash, Cara Laney, William R. Lindsay, Elizabeth F. Loftus, L. E. Marshall, W. L. Marshall, James McGuire, Neil McKeganey, T. M. McMillan, Mary McMurran, Joav Merrick, Becky Milne, Joanne M. Nadkarni, Claire Nee, M. D. O’Brien, William O’Donohue, Darragh O’Neill, Jane Palmer, Adria Pearson, Derek Perkins, Devon L. L. Polaschek, Louise E. Porter, Charlotte C. Powell, Graham E. Powell, Martine Powell, Christine Puckering, Ethel Quayle, Vernon L. Quinsey, Marnie E. Rice, Randall Richardson-Vejlgaard, Richard Rogers, Louis B Schlesinger, Carolyn Semmler, G. A. Serran, Ralph C. Serin, John L. Taylor, Max Taylor, Brian Thomas-Peter, Paul A. Tiffin, Graham Towl, Rosie Travers, Arlene Vetere, Graham Wagstaff, Helen Wakeling, Fiona Warren, Brandon C. Welsh, David Wexler, Margaret Wilson, Dan Yarmey, Susan Young
- Edited by Jennifer M. Brown, London School of Economics and Political Science, Elizabeth A. Campbell, University of Glasgow
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- Book:
- The Cambridge Handbook of Forensic Psychology
- Published online:
- 06 July 2010
- Print publication:
- 29 April 2010, pp xix-xxiii
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