Government responds to the Parliamentary Health Committee's post-legislative scrutiny of DoLS

Earlier this year, the Parliamentary Health Committee conducted post-legislative scrutiny of the Mental Health Act 2007.  The Committee described the situation regarding the deprivation of liberty safeguards as ''profoundly depressing and complacent' and gave the government a year to conduct a review and develop an action plan.  The government has published its response to the Committee.

The best element of the response is that they have set up a Mental Capacity Act Steering Group to review the evidence heard by the Committee.  This is great, and hopefully it might go some way towards restoring the vacuum of leadership in relation to the Mental Capacity Act and the deprivation of liberty safeguards, which has been a recurring theme in evidence to the House of Lords Select Committee.

Remembering John

Some readers will have had the privilege to have met, perhaps even worked alongside, John Leighton.  John was a DOLS team leader, he also worked with the Social Care Institute of Excellence on matters relating to the Mental Capacity Act and DOLS, and he was a remarkable, thoughtful and wonderful person.  He wrote this lovely and refreshingly creative commentary on DoLS judgment, which I recommend anybody with an interest in DoLS take a look at.

John died at the beginning of this year.  His absence is sorely felt, I'm sure most of all by those close to him and his immediate colleagues, but those of us who encountered him at meetings and conferences on the DoLS miss him too.  I miss chatting with him, his insights and wisdom, and have frequently wondered what he would have made of the developments of this year - the House of Lords Committee, the comments of the Health Committee on DoLS, the progress being made by CQC in their monitoring of DoLS and - of course - the Cheshire case, and the case of MH.  If you are reading this and you also knew and miss John, you might be pleased to know that a website has been set up to share memories and celebrate his life.  His family have kindly said I can link to it here.  It is a beautiful and wonderful tribute to a beautiful and wonderful person. 

MH v UK: Implications for the deprivation of liberty safeguards

Whilst 18 barristers fought it out over the Cheshire case in the Supreme Court this week, the European Court of Human Rights (ECtHR) handed down a judgment which could have equally dramatic consequences for the Mental Capacity Act 2005 deprivation of liberty safeguards (MCA DoLS): MH v UK.  MH v UK confirmed what I have suspected for a long time, that the DoLS fall short of the requirements of Article 5(4) ECHR - the right to 'take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful'.  The key issue is that without the assistance of a third party a person detained under the DoLS is unable (in practice) to be able to exercise their right of appeal, but there is no failsafe means by which the DoLS guarantee the requisite support.  In essence, there may be duties upon various entities to assist a person in exercising their right of appeal under the DoLS, arising via the Human Rights Act 1998 (HRA).  But it is not entirely clear who, and few people - at present - are interpreting them in that way.  The million dollar question is - how do we respond to this?

The rule of personal presence - implications for the Court of Protection

A chance conversation at the ever-excellent Taking Stock conference has me thinking, once again, about the implications of some recent case law from the European Court of Human Rights (ECtHR), regarding what it calls the ‘rule of personal presence’. The ‘rule of personal presence’ is a well established element of Strasbourg jurisprudence relating to when the requirements of Article 6 (the right to a fair trial) require courts to hold an oral hearing, and when parties to a case should be allowed to attend in person. Recent judgments have considered how this applies in cases concerning a person’s legal capacity, and this will have important implications for proceedings in the Court of Protection in England and Wales.

The general rule of personal presence
The Council of Europe has published a marvellous guide to fair trial guarantees under the European Convention on Human Rights (ECHR); they summarise the circumstances in which a person has a right to an oral hearing and to be present personally. The following summary is taken from their helpful guide.

The Cheshire case – a beginner’s guide

In one week's time the UK Supreme Court will hear a case which could impact upon the human rights of tens of thousands of older people and people with disabilities living in care services. The case is actually two conjoined cases which originated in the Court of Protection about a man called ‘P’, whose care was arranged by Cheshire West and Chester Council and two sisters called ‘MIG’ (also known as ‘P’, rather confusingly’) and ‘MEG’ (called ‘Q’ by the Court of Appeal). P lived in ‘supported living’ accommodation, but was subject to close supervision by staff and restrictions on his freedom of movement to prevent him from trying to tear up and ingest his incontinence pads, which had resulted in him being admitted to hospital in the past. MIG (aged 19) and MEG (aged 18) had been removed from their family home as children due to concerns about their wellbeing there, and MIG now lived with a foster carer and MEG lived in a small children’s care home. Like P, both young women were subject to close supervision by their carers to keep them safe, and MEG was sometimes restrained and given Risperidone. The Supreme Court will be asked to decide whether or not P, MIG and MEG are ‘deprived of their liberty’ as a result of restrictions imposed by those caring for them.

The meaning of ‘deprivation of liberty’ might sound like a topic better suited to a political theory debating club, but the case could have significant implications for local authorities, care providers and people like P, MIG and MEG. The term ‘deprivation of liberty’ relates to Article 5 of the European Convention on Human Rights (ECHR), the right to liberty and security of the person. Article 5 is what is known as a ‘limited right’ – that means that people have a right to liberty except in certain carefully specified situations, and they must have safeguards.

United Nations Committee publishes draft General Comment on legal capacity and human rights

The United Nations Committee on the Rights of Persons with Disabilities is the monitoring body (and the body that hears complaints) for the UN Convention on the Rights of Persons with Disabilities (CRPD). One of the most important provisions of the CRPD (to me, and probably to readers of this blog as well) is Article 12 – the right to equal recognition before the law. The drafting of Article 12 was said to be among the most controversial of all the Articles of the CRPD, and it has posed some of the greatest problems for ratification by states. The core issues are whether or not states can use what the Committee calls ‘substituted decision making’ mechanisms, and what 'supported decision making' regimes might look like.

In their most recent session, the Committee published a draft General Comment on Article 12, which aims to throw light on the Committee’s position regarding equal recognition before the law and legal capacity. It is a very important document, and the Committee are inviting comments on it before a final version is adopted, to be submitted before the end of January 2014.

Big hearted lawyers and the Rule of Law

Usually on this blog I try to only write about something where I (hope I) have something new to add to the debate (ideally at length, and on an obscure topic of fairly ‘niche’ interest). Today I’m not going to say anything new or difficult to grasp, just something that needs saying again and again and again and shouting from the rooftops in the hope that one day somebody in government listens and does something about it: the cuts to legal aid suck, big time, and are hurting real people.