New Deprivation Of Liberty Safeguards Introduced
"But I don't want to go among mad people," Alice
remarked.
"Oh, you can't help that," said the Cat.
"We're all mad here. I'm mad. You're
mad."
"How do you know I'm mad?" said Alice.
"You must be," said the Cat, "or you wouldn't
have come here."
-- Lewis Carroll
Despite the views of the Cheshire Cat (and disregarding his
somewhat old fashioned terminology), not every patient treated in a
mental health unit falls within the scope of the Mental Health Act
(MHA). Consequently, until recently it was possible for such a
patient to argue that if his treatment was overly restrictive, then
the detention was unlawful.
Deprivation Of Liberty
Article 5 of the European Convention of Human Rights provides
that "Everyone has the right to liberty and security
of person" save in specified cases, and even then the
deprivation of liberty must "be in accordance with a
procedure prescribed by law". Thus, it can be
breached by the state, but only in limited situations which are
closely regulated, and which provide for a review of the detention
process and a right of appeal against that detention.
By way of illustration, where an offence is committed which is
punishable by a period of imprisonment, then the perpetrator will
be sent to jail and will be deprived of his or her liberty.
However, the duration of that sentence will be known: the period of
detention kept under review and can be subject to appeal.
Similarly, if an individual is detained under the MHA, the
detention is governed by strict regulations which provide for a
formal assessment process, a formal review, and a right of
appeal.
However, no such safeguards protect large numbers of vulnerable
patients who are not detained under the MHA.
Case 11
HL was autistic, with severe learning difficulties. He was
sent to Bournwood Hospital (Bournwood) following a violent episode
in a day centre. He was compliant, and there was no need to
section him. After a period of detention, his carers
requested that he be discharged but his treating doctors refused.
Proceedings were commenced to compel his discharge, and the case
ultimately went before the European Court of Human Rights
(ECHR). The ECHR had no difficulty in finding that HL had
been deprived of his liberty and that the deprivation of liberty
was unlawful given that it was entirely unregulated.
Case 2
Similar problems arose in the case of JE v
DE2. JE and DE were married. DE was
blind with short-term memory impairment and was heavily dependent
upon his wife. After a period, JE, exasperated by the
shortcomings in the care provided by the Local Authority, left her
husband on the street where he was found by the...
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