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Report slams unlawful detention of thousands of vulnerable people under mental health laws

House of Lords inquiry concludes Mental Capacity Act is failing some vulnerable adults

Posted on 13 March 2014

Human rights lawyers at Leigh Day have welcomed the report published by a House of Lords Committee that was set up to examine the legislation designed to protect vulnerable adults and to give them more say in their lives.

Deprivation of liberty specialist lawyer Alison Millar, a partner in the human rights team at Leigh Day, is currently representing a number of adults without capacity who say that they have suffered abuse and restrictions whilst in care.

Alison says, ‘we have grave concerns that the deprivations of liberty guidelines are not fit for purpose, leaving vulnerable adults at risk of unlawful detention’.

The workings of the Mental Capacity Act have been scrutinised by a House of Lords Committee that concludes that many professionals involved in looking after vulnerable adults are using the Act to force decisions on them, and to restrict or detain them illegally.

The Committee concludes that the deprivation of liberty safeguards, supposedly designed to protect adults, for example with dementia or learning difficulties from harm, should be scrapped and a new system designed and implemented.

Alison, and solicitor Charlotte Skouby, have represented a number of adults without capacity who have had restraining or containment techniques used on them, with no review structure in place to check on the legality of their use.

Deprivations of Liberty Safeguards (DLS) specifically require a monitoring structure to be put in place when such techniques are used. This applies to patients without capacity in hospitals, or in residential care homes.

Today’s report makes a number of recommendations and draws a conclusions including:

  • Recommending the setting up of an independent body with responsibility for oversight of the Mental Capacity Act
  • That the Deprivation of Liberty Safeguards (DLS) are not fit for purpose
  • That the DLS be replaced with new legislation in keeping with the language and ethos of the Mental Capacity Act

Other key recommendations in the report include ensuring that the importance of the Act is given more prominence in training, standard setting and inspections; that more staff are used at the Court of Protection to handle non-controversial cases; that the government reconsiders the provision of non-means tested legal aid to those who lack capacity, especially in cases of deprivation of liberty; more Independent Mental Capacity Advocates should be appointed by local authorities; Government addresses the poor levels of awareness and understanding of Lasting Powers of Attorney and advance decisions to refuse treatment among professionals in the health and social care sectors; Government review the criminal law provision for ill-treatment or neglect of a person lacking capacity to ensure that it is fit for purpose.

The chairman of the Committee, Lord Hardier, said:

"Our other key finding concerns the Deprivation of Liberty Safeguards. The intention of the safeguards is to provide legal protection for people who are being deprived of their liberty for their own safety. The evidence suggests that tens of thousands of people are being deprived of their liberty without the protection of the law, and without the protection that Parliament intended. The Government needs to go back to the drawing board to draft replacement provisions that are easy to understand and implement, and in keeping with the style and ethos of the Mental Capacity Act."

Alison Millar said:

“It is of deep concern that the very system intended to protect some of the most vulnerable members of society has been assessed as being, at the very least, unhelpful towards such people. 

“We know from our own clients that health staff who deal with challenging behaviour sometimes use wholly inappropriate techniques to make their work lives easier.

“We welcome the recommendations from the House of Lords Committee and look to the Government to introduce changes as quickly as possible.”

The Supreme Court is currently considering the definition of what constitutes a deprivation of liberty in the case of two severely mentally impaired sisters, aged around 21 and 22, known as P and Q, and a separate case of a man in his forties with severe physical and learning disabilities, known as P. 

If the Court finds that the individuals concerned are deprived of their liberty this could have a wide-ranging impact on many other people in similar situations throughout the country who would then be covered by the additional procedural safeguards provided by the ECHR. Judgment is awaited.

Sarah Westoby was instructed by the AIRE Centre (Advice on Individual Rights in Europe) in their intervention before the Supreme Court in October last year when the case was heard, as the AIRE Centre was been granted permission to provide assistance to the court on deprivation of liberty in the international and comparative law context.

Ms Westoby said:

“We hope the awaited judgment of the Supreme Court will provide clarity on when a deprivation of liberty arises.  However, in the light of the worrying findings in today’s report, it appears new and straightforward provisions are required to protect those deprived of their liberty, who are some of the most vulnerable members of our society.”