Human Rights - What's not to love?

Human rights are not perfect, but we should defend them against this onslaught. 

Political scientist Wendy Brown, quoting Gayatri Spivak, calls human rights ‘that which we cannot not want’. Spivak’s formulation is reminiscent of the late Lord Bingham’s rhetorical question: ‘Which of these rights, I ask, would we wish to discard? Are any of them trivial, superfluous, unnecessary?’ Or Liberty’s simpler formulation: What’s not to love?

Brown goes on to say that Spivak calls human rights ‘that which we cannot not want’ in the context of knowing their limitations, in the context of knowing what ‘hidden cruelties’ and ‘unemancipatory relations of power’ are concealed within liberalism’s ‘sunny formulations of freedom and equality’. She gives a carefully articulated account of the paradoxes and limitations of human rights law as a tool of emancipation for subjugated groups. Ben Golder also explores the ‘limits and possibilities’ of human rights through the writings of Foucault and others (see, for example, this great lecture or this paper; and I just found another great free paper on this topic by Souter). I hope I’m not butchering their carefully formulated arguments when I summarise them thus: the problem with human rights is that they attenuate, soften, and tinker round the edges of the problems of inequality and oppression in our society, but they do not rupture the status quo to affect the structural background to these concerns. 

Mr Stanev's fine achievement

The European Court of Human Rights has delivered a landmark ruling for issues around mental capacity and detention in social care.

Ever since I watched the Webcast of the Grand Chamber hearing of Stanev v Bulgaria in February last year, I've checked the ECtHR webpages on a weekly basis for the judgment in case I missed it.  The European Court of Human Rights  issued its judgment on Monday of this week.  The case goes to the very heart of many central themes in human rights in social care: poverty, isolation, instutionalisation, incapacity and access to justice.  The story of the claimant, Rusi Stanev, could hardly fail to move.  He was placed by his guardian in a social care institution with no explanation, having never met them and them never having sought his views.  He has family, but there is little sense that they were interested in his plight in this ruling. The institution was pronounced by the Council of Europe Committee for the Prevention of Torture as creating 'a situation which could be said to amount to inhuman and degrading treatment', you can see photos of similar institutions in Eastern Europe here.  Despite the institution's isolation in the Rila mountains, Rusi Stanev made repeated attempts to find work in a village several miles away, to escape, to create a life beyond the oppressive and stultifying world offered within the institution's walls.  The care home's director kept hold of his identity papers, required for travel, and so the police would apprehend him, call the care home, and they would bring him back.

Costing the deprivation of liberty safeguards

Even though the number of applications are far lower than anticipated, even though the proportion of those appealing is far lower than anticipated, the cost of the DoLS is ballooning far beyond the predictions of the impact assessment.

One of the criticisms that are frequently levied against the deprivation of liberty safeguards (DoLS) is that they are enormously expensive.  However, there appears to be no official data on how much they are actually costing in contrast with predictions, and so it is hard to know whether this criticism is fair.  Certainly a variety of significant rulings on the scope of Article 5 (and hence the DoLS) have mentioned the wider resource implications of finding that a particular situation amounts to a deprivation of liberty (e.g. Re RK [2011] [8], [44], [45]; Cheshire West and Chester Council v P [2011] (on costs) [8]; P & Q v Surrey County Council [2011] [4] –[5]).  And many of these hearings on deprivation of liberty are currently being heard in the High Court; a function which they have been allocated no additional resources for.  It seems likely that this additional workload must have knock-on consequences for the ordinary family law work of the court, and I expect the judiciary must be feeling the strain.  Because of the dearth of official data on the cost of the DoLS, I have tried to put together some costings on the legal process.  And what I found is not pretty at all.  The headline is this: even though the number of applications are far lower than anticipated, even though the proportion of those appealing is far lower than anticipated, the cost of the DoLS is ballooning far beyond the predictions of the impact assessment.  Furthermore, whereas the impact assessment anticipated that the number of applications, authorisations and appeals would decrease after the first year, all the evidence is that applications and appeals - and their associated costs - will continue to rise.  The overall cost to the public purse is not being monitored centrally, but if these estimates are correct then it could be very significant indeed.

And meanwhile in the Czech Republic...

...The Czech Ombudsman has issued the opinion that the placement of a person who is deprived of their legal capacity in a care home must be authorised by a court.  This ruling awaits review by the Czech Constitutional Court, but will potentially affect over 30,000 people subject to guardianship laws in the Czech Republic, and rather puts into perspective the squealing of courts in England and Wales about having to review a few hundred deprivation of liberty authorisations.  According to the Mental Disability Advocacy Centre (MDAC) the Ombudsman issued this opinion on the basis that placement in a social care institution by a guardian, without any means to challenge it, was a violation of human rights.  I would love to know more about his legal reasoning, if anyone in the Czech Republic is reading this...

Guest post by Sam Smith: Imprisonment is the new liberty

I've not been able to give as much time to commenting on the recent ruling in C v Blackburn and Darwen Borough Council as I would have liked.  The judgment is quite short, and for those with an interest in the evolving meaning of 'deprivation of liberty' it's a must read, as the meaning seems to be even further narrowed than Cheshire, P&Q and others would have suggested.  Fortunately, Sam Smith has stepped into the breach and written a guest post on the ruling for you to read.  Guest posts from a range of perspectives are very welcome here, if anyone would like to respond or offer other thoughts.

If a person is locked in a care home and supervised all day, and only allowed out under supervision - if they cry and beg and shout and kick the door down (literally) in order to be let out - if they tell a judge they hate it there, they want to leave and they are 'stressed', are they deprived of their liberty?

'No' says Jackson J in a recent Court of Protection public judgement C v Blackburn with Darwen Borough Council [2011] EWHC 3321 (COP), which is one of the first cases to rely on the Court of Appeal's widely excoriated Cheshire judgement.

The Spartacus Report

Wherever you stand on the political spectrum, I urge you to read the report, Responsible Reform, on changes to welfare system currently going through parliament – and in particular changes to Disability Living Allowance (DLA). It was launched today by an independent coalition of sick and disabled people, who self-organised through social media, including well known campaigners like Sue Marsh, Kaliya Franklin and others from The Broken of Britain. The report was written independently of any disability organisations or charities, but it has been backed by the Disability Alliance, Mind, The Papworth Trust, Scope, Bert Massie CBE & Ekklesia. Their research made a splash over the weekend when it emerged that even Boris Johnson had expressed concerns about these reforms, managing to achieve the impossible – getting the Telegraph and the Daily Mail to take notice of the risks and incoherence of these proposals. 

3. DoLS v Guardianship - Summary and discussion

Update (December 2012): These posts are fairly out of date and contain some inaccuracies.  I've given them an overhaul, and you can read and download and updated and corrected version at DoLS v Guardianship - Redux.

Several knowledgeable bodies and individuals have suggested that guardianship under the Mental Health Act 1983 (MHA) might be a preferable framework for community based detention than the deprivation of liberty safeguards (DoLS). I have compared the two frameworks on a range of issues in two previous posts (Part 1, and Part 2).  For those of you who prefer a printer-friendly word document, and would rather read this in one piece, here's a pdf version of all three documents that I've prepared (very kindly hosted by Celtic Knot Solicitors, so you don't have to create a Google Acount to read it).  And, two days after writing this post here's a brand new DoLS and guardianship case, with a very interesting comment from Jackson J:

It is a truly unhappy state of affairs that the law governing the fundamental rights and welfare of incapacitated people should be so complex. As this case shows, its intricacies challenge the understanding of professionals working in the field and are completely inaccessible to those for whose benefit the legislation has been devised, including those with a relatively high level of understanding, such as Mr C. This judgment, while keeping citation from statute, regulation, codes of practice and reported cases to the necessary minimum, still remains more focused on technical issues than I would like

If you’ve skipped to the end of these three posts, here’s what you’ve missed in a nutshell: 

2. DoLS v Guardianship: Appeal and review mechanisms

This is the second post in a series of three comparing guardianship under the Mental Health Act 1983 (MHA) with the Mental Capacity Act 2005 deprivation of liberty safeguards (DoLS).  The first post explains why some people have argued that guardianship would offer better safeguards than the DoLS against arbitrary detention.  In that post I explore the criteria for entry into each regimes, the coercive powers each regime affords public bodies, and the role they give to families.  In this, the second post, I will look in detail at the appeal mechanisms, and consider whether they are compliant with Article 5(4) of the European Convention on Human Rights.  If you are short of time, I strongly recommend you skip to the third and final post, which offers a summary and some thoughts on why both regimes for community based detention will have significant difficulties in practice.

1. DoLS v Guardianship: Applications, criteria and powers

Having written my thank you card to blog readers, I thought I’d kick of 2012 with a long-promised post on the deprivation of liberty safeguards (DoLS) and Guardianship. In true Small Places style, this will be not be a short one... in fact, it’s such a monster that I’ve decided to break things up into three separate posts. The first (this one) is on the criteria and powers of DoLS and guardianship; the second is on the appeal mechanism.  These are very long, and if you're pressed for time I recommend you skip to the third and final post which provides a summary and a general discussion of the issues.  Even so, I have a horrible feeling this might be one of those posts I spend hours on, and about 3 geeks like me actually read... Still, all fodder for the thesis, and this way I can kid myself I’m working.  I'm very aware that I'm much more familiar with DoLS than I am guardianship, so please alert me to any glaring errors, and I'd also welcome any guest posts or comments on people's views on these issues.

The question: Would guardianship have been better than the DoLS? 

Happy new year, and thank you

The Small Places blog is a year old this month, and a year ago if anyone had told me that the number of readers would exceed double digits I would have been very surprised. I only started the blog because my friends’ and family’s eyes started to glaze over every time I mentioned the deprivation of liberty safeguards, but I needed an outlet for all the things I’d found out, or that annoyed me. I’m still a little astonished (and delighted) that anyone else shares my interest in this obscure area of law... In this the final year of my PhD, I’m not sure I’ll be able to write with the same frequency as I did in 2011, but I’ll try to post what I can.