The aim of this essay is to critically evaluate the development of procedural safeguards regarding deprivation of incapacitated patients’ liberty in institutional care. It will assess the extent to which the law is successful in protecting patients’ rights against arbitrary detention, and led to the conclusion that neither the past law nor the current law have adequately safeguarded people’s rights against arbitrary detainment.
To do so, it will start by evaluating the development of the protection of liberty frameworks in the UK, and how their inadequacy led to the implementation of DOLS in hospitals and care homes. Consequently, there will be an evaluation of three main criticisms. Firstly, it will look at the level of complexity of DOLS, both on a politico-legal plane and on a practical medical plane. Secondly, it will look at what is held to constitute as a deprivation of liberty, and how there are significant gaps in this definition.
Thirdly, it will take a closer look at the implications of the Cheshire West judgment and evaluate the consequences of broadening the scope for DOLS. This essay will thus reach the conclusion that the law relating to the admission of incapacitated patients has failed to properly assess individuals’ rights to protection from arbitrary detention.
Table of Contents
1. Introduction
2. Development of the Protection of Liberty Framework
3. MCA 2005 and the Deprivation of Liberty Safeguards
4. Unnecessary Complexity and Draconian Language
5. No Definition of Deprivation of Liberty
6. The Broadening of Deprivations of Liberty and its Consequences
7. Concluding Remarks
Research Objectives and Topics
This essay critically evaluates the development and effectiveness of procedural safeguards regarding the deprivation of liberty of incapacitated patients in institutional care within the UK, specifically assessing whether these legal frameworks succeed in protecting individuals from arbitrary detention.
- The historical development of protection of liberty frameworks in the UK.
- The implementation and subsequent failures of the Deprivation of Liberty Safeguards (DOLS).
- The impact of landmark legal cases, such as the Cheshire West judgment, on current practice.
- The legal and practical challenges in defining and identifying a deprivation of liberty.
- The administrative burdens and consequences for local authorities and medical institutions.
Excerpt from the Book
Unnecessary Complexity and Draconian Language
When describing what judging a DOLS case was like, Charles J held it was ‘as if you [had] been in a washing machine and spin dryer’. Similarly, Lady Hale said that ‘the safeguards have the appearance of bewildering complexity’, making them widely impenetrable by lay people. This is a significant problem for the implementation of DOLS, as it means institutions often need expert legal advice to understand their duties and the necessary procedures. This is particularly worrying for small care homes, which are left ‘marooned with all the responsibility’ to apply for the specified authorisation with a severe lack of guidance. The complexity of Schedule A1 imposes ‘an enormous administrative burden’ on understaffed and undertrained local authorities, as well as draining an already over stretched budget. As the process is so inherently complex, it is not surprising that local authorities have raised difficulties in their implementation. This is in direct correlation with the reality that local authorities and small care homes often attempt to make shortcuts or ways to avoid going through the procedures, which proves that DOLS do not effectively protect the right to liberty, but rather simply serve as a bureaucratic measure.
Summary of Chapters
1. Introduction: Outlines the essay's goal to evaluate the procedural safeguards for incapacitated patients and introduces the central criticisms regarding DOLS complexity and arbitrary detention.
2. Development of the Protection of Liberty Framework: Reviews the history of the Mental Capacity Act 2005 and the Mental Health Act 1983 in the context of legal gaps that historically left patients vulnerable to arbitrary confinement.
3. MCA 2005 and the Deprivation of Liberty Safeguards: Details the specific requirements introduced by the Mental Health Act 2007 to regulate the deprivation of liberty and the procedural duties placed on managing authorities.
4. Unnecessary Complexity and Draconian Language: Discusses the practical difficulties, administrative burdens, and lack of guidance faced by institutions when attempting to navigate the DOLS framework.
5. No Definition of Deprivation of Liberty: Critiques the legal ambiguity surrounding the term "deprivation of liberty" and explores how common law tests, such as the "acid test," attempt to fill this legislative void.
6. The Broadening of Deprivations of Liberty and its Consequences: Analyzes the policy implications of the Cheshire West judgment and the resulting practical and financial strain on the NHS and local authorities.
7. Concluding Remarks: Synthesizes the argument that the current DOLS framework is ineffective, overly bureaucratic, and fails to provide the intended protection for vulnerable adults.
Keywords
Deprivation of Liberty Safeguards, DOLS, Mental Capacity Act 2005, Human Rights, Article 5 ECHR, Cheshire West, Bournewood gap, Arbitrary detention, Institutional care, Incapacitated patients, Procedural safeguards, Best interest test, Clinical care, Legal protection, Administrative burden
Frequently Asked Questions
What is the primary focus of this research paper?
The paper focuses on critically evaluating how the UK legal system protects incapacitated patients in institutional care from arbitrary detention, specifically examining the effectiveness of the Deprivation of Liberty Safeguards (DOLS).
What are the core thematic areas discussed in the work?
The core themes include the evolution of mental health law, the failure of procedural safeguards, the confusion surrounding the legal definition of deprivation of liberty, and the operational burdens placed on care institutions.
What is the main research question or objective?
The objective is to determine whether current law, specifically the DOLS framework, provides effective protection against arbitrary detention for individuals with mental disabilities.
Which scientific or legal methods does the author utilize?
The author employs a legal research method, analyzing statutory provisions (MCA 2005, MHA 1983), European Convention on Human Rights articles, and landmark case law such as Cheshire West and Bournewood.
What is addressed in the main body of the work?
The main body examines the history of detention frameworks, the detailed process of DOLS applications, the criticisms of its complexity, the lack of a statutory definition for "deprivation of liberty," and the practical consequences of judicial decisions on care provision.
Which key terms characterize this study?
The study is characterized by terms such as DOLS, arbitrary detention, procedural safeguards, mental capacity, and institutional care.
How does the "Bournewood gap" impact current legal protections?
The "Bournewood gap" refers to the historical lack of legal procedure for incapacitated persons to challenge their detention, which highlighted the urgent need for the safeguards that were later implemented but ultimately deemed insufficient.
What does the "acid test" mean in the context of this paper?
The "acid test" is a legal standard established to determine if a patient is under continuous supervision and control and whether they are truly free to leave, helping clarify when a deprivation of liberty is occurring.
Why are care homes and local authorities struggling with DOLS?
They struggle because the DOLS framework is perceived as overly complex, administratively burdensome, under-funded, and lacking in clear, concise guidance for the lay people tasked with its implementation.
Does the author conclude that the DOLS framework is successful?
No, the author concludes that the system is in crisis, ineffective, and ultimately fails to provide the protection it was intended to offer to mentally disabled adults.
- Arbeit zitieren
- Sara Vincenzotti (Autor:in), 2020, Admission of a mental disabled people to institutional care. Effective protection or arbitrary detention?, München, GRIN Verlag, https://www.grin.com/document/900993
