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Update (December 2012): These posts are fairly out of date and contain some inaccuracies.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? 

Is Article 12 keeping you awake at night?

Because if you are at all interested in issues around mental capacity and human rights (as I tend to assume readers of this blog are), then Article 12 of the Convention on the Rights of Persons with Disabilities (CRPD) should be giving you pause for thought.  Article 12 is the right to equal recognition before the law of persons with disabilities.  It has been described as the core of the CRPD, and also as a 'paradigm shift', a 'war of ideas' and a 'clash of creeds' (see Quinn, more on this paper below)  Article 12 stands firmly within the tradition of the social model of disability – with a view of disability as a phenomenon that arises out of social barriers, prejudice and discrimination, in contrast to individualised and medicalised accounts.  On this model, what we call ‘mental incapacity’ arises through a combination of discriminatory attitudes and a lack of supports to assist people with disabilities in decision making. Both of these, being social phenomena, are remediable if we undertake work to challenge oppressive attitudes and ensure resources to support decisions are available.  In the final analysis, the strength of Article 12 may rise and fall with the strength of the social model of disability – which, despite its very important insights, is not without its limitations (see Shakespeare, 2006).  In the meantime, however, there is much to be learned from the debates around Article 12, and I hope to explore them more fully in this blog in this post and others yet to come.