Deprivation of Liberty Safeguards
| Author | Michael Butler |
| Pages | 243-257 |
Chapter 23
Deprivation of Liberty Safeguards
23.1 INTRODUCTION
Anyone deprived of his liberty is entitled to expect that his detention is in accordance with a procedure prescribed by law (Article 5(1) of the ECHR) and that he may take proceedings to decide upon its lawfulness (Article 5(4)).
For those mental health patients detained under the MHA 1983, the Act itself provides a prescribed procedure and a means by which detention can be challenged. Article 5 of the ECHR is satisfied. Consider, however, those mental health patients who lack the capacity to make a decision on admission to a hospital or care home, who are passively compliant, and who end up being admitted without resisting and without the use of the MHA 1983. While there is nothing wrong in principle with a person who lacks capacity being admitted informally to a hospital or care home for treatment or care which is in his best interests, the admission becomes problematic if, when looked at objectively, even though the patient is not resisting, the circumstances of the admission amount to a deprivation of liberty. Without a legal framework in place to authorise that deprivation of liberty, the admission will be in breach of the patient’s rights under Article 5.
Historically, the problem has been one of relatively large numbers of patients in hospitals or care homes who lacked the capacity to agree to be there, who were not actively resisting and who were not, therefore, subject to the MHA 1983, but who were, nevertheless, adjudged to be deprived of their liberty with no legal framework to protect them. The landmark case of HL v UK (Application No 45508/99) [2004] ECHR 471 vividly illustrated this significant gap in the law (see para 23.2). The result of the case was to provoke the UK government into creating the DOLS as an entirely new framework, compliant with Article 5 of the ECHR, authorising the admission to hospitals and care homes of incapacitated patients, for use when the MHA 1983 was deemed inappropriate.
244 A Practitioner’s Guide to Mental Health Law
DOLS were introduced by amending the MCA 2005, with the addition of a new Schedule A1 to that Act (see para 23.3). This chapter considers the background to this change in the law, the key principles of the new framework and the procedure which must now be followed whenever a deprivation of liberty occurs in a hospital or care home setting. When reviewing these changes, however, it may be worth considering how long they will remain in place, since the new framework has been the subject of serious and sustained criticism. In its report on the implementation of the MCA 2005 generally (Mental Capacity Act 2005: post-legislative scrutiny, The Stationery Office, 13 March 2014), the House of Lords Select Committee on the MCA 2005 singled out the DOLS provisions for particular criticism. The provisions, it noted, are ‘poorly drafted, overly complex and bear no relationship to the language and ethos of the Mental Capacity Act’. The report expressed concern that the provisions were also poorly implemented, which meant that, ‘thousands, if not tens of thousands, of individuals are being deprived of their liberty without the protection of the law’. The committee’s conclusion was that the DOLS provisions are not fit for purpose, and the only appropriate recommendation is ‘to start again’. The recommendation was for a ‘comprehensive review of the Deprivation of Liberty Safeguards with a view to replacing them with provisions that are compatible in style and ethos to the rest of the Mental Capacity Act’.
23.2 HL v UK
HL was a man in his late 40s who suffered from severe autism. He was cared for in Bournewood Hospital on an informal basis for many years. In 1994, he was discharged into the care of Mr and Mrs E. In 1997, following an incident of self-harm, HL was taken back to Bournewood Hospital and remained there. He lacked the capacity to consent to his admission to hospital or to the treatment that he then received, but he did not resist his admission and nor did he seek to leave hospital. The clinical team were clear, however, that if HL did try to leave hospital then the MHA 1983 would have been employed to prevent him from doing so. He was under their continuous supervision and control.
Mr and Mrs E attempted to secure HL’s discharge from hospital but were refused permission. They were told that HL would only be released when the professionals considered it appropriate. Through his litigation friend, HL challenged the hospital’s refusal to discharge him. His case eventually went to the ECtHR where it was argued by the UK government that HL was not, as a matter of fact, detained but, even if he was, his detention was lawful, according to the common law doctrine of necessity. The ECtHR concluded that, notwithstanding HL’s lack of resistance to being in hospital, there was a deprivation of his liberty and, therefore, a breach of both Articles 5(1) and 5(4) of the ECHR in the absence of any procedure prescribed by law governing the
deprivation of liberty or of any procedure available for HL to challenge the lawfulness of his detention.
23.3 CHANGE IN THE LAW
Following HL v UK (Application No 45508/99) [2004] ECHR 471, new legislation, or at least an amendment to existing legislation, was necessary. Although the MHA 1983 was of course available as a statutory framework for detention, it was felt not to meet the needs of the case in point, or of many cases like it. The starting-point for detention under that Act is resistance to admission or treatment. The Act is used when the patient is non-compliant, whether or not he has capacity. Following HL v UK, however, it was clear that a deprivation of liberty might be adjudged to exist in the case of a patient without capacity who is passively compliant, where there is no non-compliance or resistance, but where there is, nevertheless, continuous supervision and control. It was also clear that the existing framework of the MHA 1983 would not be appropriate for such cases. The UK government’s response to HL v UK was, therefore, to use the MHA 2007 to introduce amendments to the MCA 2005 in order to create a new, additional statutory framework for authorising the detention of patients.
Section 4A(5) of the MCA 2005 now provides that a person ‘may deprive P of his liberty if the deprivation is authorised by Schedule A1’ to that Act, and Schedule A1, entitled ‘Hospital and Care Home Residents: Deprivation of Liberty’, now sets out the procedure for authorising deprivations of liberty in HL v UK type cases.
The amendments to the MCA 2005 also resulted in a new Code of Practice, specific to DOLS provisions, the Deprivation of Liberty Safeguards Code, published in 2008 (DOLS Code).
The DOLS provisions were introduced to supplement the existing legal framework under the MHA 1983, not to replace it. In GJ v The Foundation Trust and Others [2009] EWHC 2972 (Fam), Charles J suggested that (at [60]):
the underlying purpose of the amendments to the MCA 2005 [was] to fill a gap, namely the ‘Bournewood Gap’. This shows that the purpose was not to provide alternative regimes but to leave the existing regime under the MHA 1983 in place with primacy and to fill a gap left by it and the common law.
More recent cases have suggested, however, that the DOLS provisions are there not just to fill a gap, but can, in fact, be seen as an alternative to the MHA 1983 in appropriate cases (see DN v Northumberland Tyne and Wear NHS Foundation Trust [2011] UKUT 327 (AAC) and AM v South...
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