Challenging deprivation of liberty: advocating for your rights
| Published date | 06 March 2017 |
| DOI | https://doi.org/10.1108/AMHID-11-2016-0032 |
| Pages | 47-53 |
| Date | 06 March 2017 |
| Author | Niall O’Kane,Ian Hall,Mo Eyeoyibo |
| Subject Matter | Health & social care,Learning & intellectual disabilities |
Challenging deprivation of liberty:
advocating for your rights
Niall O’Kane, Ian Hall and Mo Eyeoyibo
Abstract
Purpose –The purpose of this paper is to review a case of a man with a mild learning disability and autistic
spectrum disorder who successfully appealed against a Deprivation of Liberty Safeguards authorisation
under English law.
Design/methodology/approach –The authorswanted to identify the factors contributing to the individual’s
deprivation of liberty and subsequent successful appeal. The authors examined the accounts from the
experts involved on each side of the case including different views on the person’s capacity to make certain
decisions. The authors examined several of the individual’s psychological and psychiatric assessments.
The authors interviewed the individual on two occasions: once during the appeals process, and following his
successful appeal.
Findings –The authors identified several reasons as to why the individual was successful in appealing
against the Deprivation of Liberty Safeguards. First, the individual was able to seek legal support to appeal
independently. Second, experts involved on each side of the case had differing opinions regarding capacity
to make certain decisions. Third, the indication for the Deprivation of Liberty Safeguards was subsequently
declared not valid. Finally, the authors found that the quality of life and psychological well-being for the
individual improved following removal of restrictions.
Practical implications –The authors highlight the wider issues relating to an individuals’rights to challenge
authorisations in the Court of Protection as well as to future considerations and directions of the Deprivation
of Liberty Safeguards legislation in light of evolving case law.
Social implications –The authors highlight the importance of empowering patients in matters relating to
their care and treatment, as well as protecting their human rights, dignity and autonomy.
Originality/value –The authors examine the barriers to challenging Deprivation of Liberty Safeguards
authorisation and the ever-evolving Deprivation of Liberty Safeguards process.
Keywords Autism, Advocacy, Intellectual disability, Human rights, Mental capacity, Deprivation of liberty
Paper type Case study
Introduction
In this paper, we review a case of a man with a mild learning disability and autistic spectrum
disorder who successfully appealed against a Deprivation of Liberty Safeguards authorisation
under English Mental Capacity Act. We highlight the wider issues relating to an individuals’rights
to challenge authorisations under the Mental Capacity Act, comparing this process to the much
more straightforward process of appeals under Mental Health legislation. We also consider
future directions of the Deprivation of Liberty Safeguards legislation in light of evolving case law.
The man we describe has capacity to consent to publication of this case study and he agreed to
its publication.
Daniel (a pseudonym) is a man in his 30s with a mild intellectual disability and autistic spectrum
disorder who was residing in a 24 hour supported residential care home. He was deprived of his
liberty in that the home was locked, and he was not free to go out when he wished to.
The deprivation of liberty was authorised under the Deprivation of Liberty Safeguards of the English
Mental Capacity Act 2005 (Department of Health, 2007). The “supervisory body”(the local authority)
concluded that the deprivation of liberty would enable Daniel to receive the appropriate care and
Received 2 November 2016
Revised 27 March 2017
Accepted 3 April 2017
Niall O’Kane is a Psychiatry
Doctor at the Camden Learning
Disabilities Service, Camden
and Islington NHS Foundation
Trust, London, UK.
Ian Hall is a Consultant
Psychiatrist at the Community
Learning Disability Service,
East London NHS Foundation
Trust, London, UK.
Mo Eyeoyibo is a Consultant
Psychiatrist at the Mental
Health of Learning Disability,
Kent and Medway NHS and
Social Care Partnership Trust,
Dartford, UK.
DOI 10.1108/AMHID-11-2016-0032 VOL. 11 NO. 2 2017, pp.47-53, © Emerald Publishing Limited, ISSN 2044-1282
j
ADVANCESIN MENTAL HEALTH AND INTELLECTUAL DISABILITIES
j
PAGE47
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