New Deprivation Of Liberty Safeguards Introduced

"But I don't want to go among mad people," Alice


"Oh, you can't help that," said the Cat.

"We're all mad here. I'm mad. You're


"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


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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