In this session Ben looks at… Life after Cheshire Article 5 in European Court of Human Rights – Austin Deprivation of Liberty by Police – ZH DOLS case – EM Medical treatment – re E (anorexia) Inherent jurisdiction - DL

1. Mental Capacity Act and DOLS update
•Life after Cheshire…
•Article 5 in European Court of Human Rights – Austin
•Deprivation of Liberty by Police – ZH
•DOLS case – EM
•Medical treatment – re E (anorexia)
•Inherent jurisdiction - DL
•News and resources

2. •concern about the ‘Cheshire’ test in practice
•best to avoid “purpose / motive / intentions / reasons”
•focus on the concrete situation
•err on side of caution

4. lawful
DOL
no DOL
necessary
“purpose”
no
DOL

5. “everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save
in the following cases and in accordance with a
procedure prescribed by law”
Article 5 ECHR
•lawful arrest to bring to court
•lawful detention of … persons of unsound mind

6. lawful
DOL
no
DOL
necessary
“purpose”
no
DOL

7. •European Court of Human Rights
15 March 2012
•rejected appeal – No DOL
•purpose / motive cannot be relevant to whether there is a DOL
•“specific context and circumstances” should be considered … (para 58-59)

8. •no common law “necessity” defence survives if MCA s5-6 applies and is not met

9. •“purpose” and “intention” relevant, but 40 minutes restraint was held a DOL, as “hasty, ill informed and damaging”

10. •need to collaborate between police and carers
•breach of Art 5 and Art 3
•compensation awarded

12. 92 year old man – cognitive impairment
standard authorisation in a care home
EM wants to go home –
saying son will care for him
son, apparently, will not
capacity in dispute

13. Insert image

14. BMI: 11 – death imminent
does not seek death, but above
all does not want to eat or be fed”
OS sought declaration she lacked capacity and for force feeding
commit to force feed to BMI > 17 – over 1-2 years
32yo woman – anorexia, PD & alcohol abuse

15. •previously (but not now) detained under MHA

16. •dealt with under MCA – held lacks capacity

17. •previously purported ADs to refuse feeding – declared invalid due to lack of capacity when made

18. •best interests?
–Autonomy vs Sanctity of Life

20. living with DL - adult son - in Mr L’s property
they all have capacity to make
decisions
LA concerned that DL is aggressive and bullying
“inherent jurisdiction” to make orders to protect Mr & Mrs L
Mr L (85yo)
Mrs L (90yo) - physically disabled

21. •DL argued – MCA is definitive
•LA said could be a new “Bournewood Gap”
•MacFarlane LJ – inherent jurisdiction not explicitly abolished by MCA

22. •inherent jurisdiction not explicitly abolished by MCA, and “continues to be available to act as ‘the great safety net’…”
•when and how?

23. Draft Care and Support Bill
- 11 July 2012
•consultation until 19 October 2012
•duty on LAs to investigate suspected abuse / neglect (cl 34)
•establish SABs (cls 35-36)
•repeal s47 NAA 1948
•but

24. separate consultation on new
“safeguarding power”
•open until 12 October 2012

25. DOLS statistics –
March 2012
•nil applications
•inconsistency

26. CQC report on DOLS –
March 2012

27. “there continue to be cases where people who lack
capacity are deprived of their liberty without regard to
their human rights… the safeguards are no longer new and
both providers and supervisory bodies have had ample
time to train staff and develop policies”
CQC report on DOLS

28. Mental Health Alliance –
May 2012
•“implementation of DOLS has been extremely uneven…”
•recommends “major review”

29. www.bjlegaltraining.com http://thesmallplaces.blogspot.co.uk/ http://autonomy.essex.ac.uk/ http://www.mentalhealthlaw.co.uk/Main_Page

30. Ben Troke | 0115 976 6263 | ben.troke@brownejacobson.com