What price freedom? Counting the cost when DoLS goes wrong – UK Human Rights Blog

‘Twenty years on from Bournewood, the case that prompted the introduction of DoLS, and as the Mental Capacity Amendment Bill tolls the death knell for DoLS and introduces as their replacement Liberty Protection Safeguards, the High Court (HHJ Coe sitting as a Deputy High Court Judge) has given a sharp reminder of the human and financial cost of what happens when a hospital fails properly to discharge its obligations under the Mental Capacity Act and as a result, falsely imprisons (in a hospital) a patient.’

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UK Human Rights Blog, 5th February 2019

Source: ukhumanrightsblog.com

New Judgment: Welsh Ministers v PJ [2018] UKSC 66 – UKSC Blog

‘This appeal considered whether a statutory power to impose conditions amounting to a deprivation of liberty can ever lawfully be ‘implied’ and whether the framework for Community Treatment Orders provides practical and effective protection for patients’ rights under the ECHR rights. It also considered what the scope is of a tribunal’s power to take into account ECHR rights.’

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UKSC Blog, 17th December 2018

Source: ukscblog.com

Supreme Court rules on CTOs, conditions and deprivations of liberty – Local Government Lawyer

‘There is no power for a responsible clinician to impose conditions in a community treatment order (CTO) which have the effect of depriving a patient of his liberty, the Supreme Court has ruled.’

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Local Government Lawyer, 17th December 2018

Source: www.localgovernmentlawyer.co.uk

Deprivation of Liberty and Consent- the Supreme Court decides – Doughty Street Chambers

Posted December 12th, 2018 in consent, deprivation of liberty safeguards, detention, mental health, news by sally

‘The Supreme Court has handed down judgment in the case of MM. This was an appeal against the Court of Appeal’s decision in the Secretary of State for Justice v MM [2017] EWCA Civ 194 (29 March 2017).Both PJ and MM appealed to the Supreme Court but for administrative reasons MM’s appeal was heard first. MM’s appeal has been dismissed.MM was detained under sections 37/41 Mental Health Act (“MHA”) and sought a conditional discharge from hospital to conditions which would objectively give rise to a deprivation of his liberty, to which he had capacity to consent. Although no placement had been identified the First Tier Tribunal (Mental Health) (“the FtT”) was asked whether as a matter of principle it would be lawful to discharge him conditionally on such conditions. The FtT ruled that it could not. At the Upper Tribunal Charles J held that he could give a valid consent to this and as such Article 5 would not be engaged. (A similar issue was in play in Secretary of State v KC [2015] UKUT 0376 (AAC, where Charles J held that the FtT could impose conditions on a discharge that objectively deprived a patient of his or her liberty and that the Court of Protection and/or a decision maker could consent to).’

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Doughty Street Chambers, 28th November 2018

Source: insights.doughtystreet.co.uk

MPs and peers demand changes to Mental Capacity (Amendment) Bill – Local Government Lawyer

‘The Mental Capacity (Amendment) Bill requires further changes to protect the human rights of vulnerable people, MPs and peers have warned.’

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Local Government Lawyer, 31st October 2018

Source: www.localgovernmentlawyer.co.uk

Liberty protection safeguards to protect vulnerable people in care – Family Law

Posted August 10th, 2018 in deprivation of liberty safeguards, mental health, news by sally

‘Amendments to mental health legislation aim to correct some of the current system’s obvious failings. Ben Troke, solicitor at Browne Jacobson LLP, discusses the Mental Capacity (Amendment) Bill, which introduces new law to protect the rights of people who do not have the mental capacity to make decisions about their care, and replaces the much-criticised deprivation of liberty safeguards (DoLS).’

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Family Law, 9th August 2018

Source: www.familylaw.co.uk

Depriving children of their liberty: Resources and Reform – Family Law Week

Posted August 8th, 2018 in children, deprivation of liberty safeguards, news by tracey

‘Michael Jones, barrister, Deans Court Chambers, Manchester, considers the use of the court’s inherent jurisdiction in some deprivation of children’s liberty cases and calls for urgent reform.’

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Family Law Week, 7th August 2018

Source: www.familylawweek.co.uk

New law to protect people with dementia and learning disabilities announced – Law Commission

‘Thousands of vulnerable people with dementia and learning disabilities will be given better protection by a new law announced today by the Government. The new Mental Capacity (Amendment) Bill, based on Law Commission recommendations, brings in extra protections for those who lack the mental capacity to make decisions about their care.’

Full press release

Law Commission, 3rd July 2018

Source: www.lawcom.gov.uk

Daedalus, Ariadne and the Minotaur: Where are we now? – Family Law Week

‘Alex Laing of Coram Chambers re-visits the use of the inherent jurisdiction to deprive children of their liberty in the light of recent judgments.’

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Family Law Week, 15th May 2018

Source: www.familylawweek.co.uk

Analysing the Government response to the review of the law on deprivation of liberty – Family Law

Posted April 25th, 2018 in deprivation of liberty safeguards, Law Commission, news by sally

‘Local Government analysis: On 14 March 2018, the Government’s final response to the Law Commission review of the law on deprivation of liberty was published, which broadly agrees with most of the proposals, and more significantly, agrees to replace the current Deprivation of Liberty Safeguards (DoLS) system. Ben Troke, partner at Browne Jacobson LLP, discusses the Government’s proposals and assesses whether they go far enough, as well as the likely timescales involved in implementing them.’

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Family Law, 23rd April 2018

Source: www.familylaw.co.uk

Government to legislate for replacement of Deprivation of Liberty Safeguards – Local Government Lawyer

‘The government has said this month that it broadly agrees with the Liberty Protection Safeguards model proposed by the Law Commission to replace the Deprivation of Liberty Safeguards.’

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Local Government Lawyer, 21st March 2018

Source: www.localgovernmentlawyer.co.uk

Deprivation of liberty and administration of medication by a local authority to a child – Zenith Chambers

‘Local Government analysis: Louise McCallum, barrister, and Emily Ross, pupil barrister, both of Zenith Chambers, Leeds, consider the case of T (A Child: Care Order: Beyond Parental Control: Deprivation of Liberty: Authority to Administer Medication), which dealt with issues of deprivation of liberty and administration of medication by a local authority to a child.’

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Zenith Chambers, 1st March 2018

Source: www.zenithchambers.co.uk

Guidance on Art 5 compliance when a child in local authority care is deprived of their liberty – Family Law

‘In Re A-F (Children) (Care Orders: Restrictions on Liberty) [2018] EWHC 138 (Fam) the court gave guidance on when Art 5 of the European Convention on Human Rights (ECHR) is engaged in relation to a child in the care of the local authority, and the procedures necessary to ensure the deprivation of liberty is lawful.’

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Family Law, 13th March 2018

Source: www.familylaw.co.uk

Judicial Authorisation of Deprivation of Liberty – 39 Essex Chambers

‘A procedure has been established by the courts to enable the authorisation of the deprivation of liberty of an individual over the age of 16 who lacks capacity to consent to their confinement. This procedure, usually called the Re X procedure after the decision of Re X and others (Deprivation of Liberty) [2014] EWCOP 25 (and No 2 [2014] EWCOP 37), can be used in any setting where the DOLS authorisation procedure in Schedule A1 to the MCA 2005 cannot be used, and also where the person is between the age of 16 and 18.’

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39 Essex Chambers, December 2017

Source: www.39essex.com

Court of Appeal Overturns Birmingham CC v D: 16-17 Year Olds Who Lack Capacity Not Deprived of Their Liberty Within Art 5 Where Parents Consent to Their Confinement – Garden Court Chambers

‘This is the appeal from the decision of Keehan J in Birmingham CC v D [2016] EWCOP 8.’

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Garden Court Chambers, 10th November 2017

Source: www.gardencourtchambers.co.uk

Government starts work on Law Commission health care and mental capacity recommendations – Law Commission

‘The Government has launched a new consultation looking at the regulation of health care professionals, based on recommendations from a 2014 report by the UK Law Commissions.’

Full press release

Law Commission, 1st November 2017

Source: www.lawcom.gov.uk/

Mental Capacity and Deprivation of Liberty: Law Commission Report Summary – Halsbury’s Law Exchange

‘Thousands of vulnerable people with dementia and learning disabilities are being detained in hospitals and care homes without the appropriate checks, due to a law unfit for purpose according to the Law Commission.’

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Halsbury’s Law Exchange, 13th March 2017

Source: www.halsburyslawexchange.co.uk

People with dementia ‘failed’ by deprivation of liberty law – BBC News

‘People with dementia and learning difficulties are being detained in care without checks due to a ‘failing’ law, the Law Commission has said.’

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BBC News, 13th March 2017

Source: www.bbc.co.uk

Court of Appeal delivers landmark ruling in ‘state detention’ inquest case – Local Government Lawyer

‘A woman with a learning disability who died whilst in the intensive care unit of a hospital was not in ‘state detention’, the Court of Appeal has ruled.’

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Local Government Lawyer, 27th January 2017

Source: www.localgovernmentlawyer.co.uk

The Mental Capacity Act 2005: an opportune time to reflect – OUP Blog

‘More than a decade has passed since the Mental Capacity Act (‘MCA’) received royal assent. Described as a ‘visionary piece of legislation’, the MCA was a significant landmark on the legal landscape. It represented a triumph of autonomy by recognising that, as far as possible, people should play an active role in decisions about their welfare. At the core of the MCA is the fundamental principle that a person must be assumed to have decision making capacity unless it is established that he lacks it. The law therefore assumes that everyone has the ability to act and take decisions in accordance with their own interests, and affords primacy to individual priorities over paternalistic imperatives. Where a person lacks capacity – whether for reasons of learning disability, dementia, brain injury, or some other impairment of or disturbance in the functioning of the mind or brain – the MCA permits decision-makers to act on behalf of the person in accordance with his ‘best interests’. This means that, amongst other things, decision-makers must take into account the person’s past and present wishes and feelings, his beliefs and values, and any other factors that the person would be likely to consider, in order to act in a way which would likely give expression to the person’s autonomy. In this way, the MCA sought to empower people to make decisions for themselves, protect the vulnerable from the excesses of paternalism, and engineer a cultural shift in attitudes to mental impairment and incapacity.’

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OUP Blog, 17th January 2017

Source: www.blog.oup.com