The United Kingdom6 (the Bournewood case) changed
The phrase “Human Rights” refers to standard rights of all individuals, regardless of their nationality, race, religion, ethnicity or gender and are viewed as moral rights. Moral rights are a natural right that exists from birth, apply to everyone and universal, irrespective of which society someone lives in. These rights cannot be given up or taken away. To have rights implies that others have obligations. The government is required to respect and protect human rights. Failure by the government to do so would be a violation of human rights. In contrast to moral rights, legal rights are different as they are created by governments, apply only to some people in society, are not universal and can be given up or altered.
The principle of universal rights relevant to everyone was first recognised by a document produced by the United Nations, known as the Universal Declaration of Human Rights1. The document was first signed in December 1948 with the intention of improving human rights.
Every year people are diagnosed with a mental health illness and require special care and support. Roughly 40% of adults in the UK who suffer from a learning disability also have a mental health condition.2 Depending on an individual’s particular condition and their mental capacity, will determine the most practical care solution. 63,000 people were detained under the Mental Health Act in 2015/16 in England. – an increase of 47% over the past decade.3 Some patients can be treated in hospitals or care homes while others may have a condition of a more serious nature and need to be admitted to a mental health ward where they will receive round the clock care. Hospitals, care homes and mental health wards are all considered to be a safe environment for both patients and their relatives. Their safety is the primary reason for this but also to ensure they do not leave and harm themselves or others. Sometimes patients are unable to consent to be placed into these environments and therefore are being deprived of their liberty. Article 5 of the Human Rights Act4 states that ‘Everyone has the right to liberty and security of person’.5
The case of HL v United Kingdom6 (the Bournewood case) changed the law and emphasised how rights were being abused. HL was an autistic man who lived with his carers, Mr and Mrs E in their cottage in Surrey. Every week HL would take the centre’s transport link to his placement. A number of years after he had gone to live with Mr and Mrs E, a new driver took a different route to his placement. HL was agitated by this and taken to the hospital where he was detained and his carers were not allowed to visit him. The case was unsuccessful in the High Court. The Court of Appeal ruled in their favour that the informal admission of HL to the hospital was unlawful. In 1998 the House of Lords overturned the decision ruled by the Court of Appeal’s ruling that a man who was admitted informally to the hospital without consent had not been unlawfully detained. Mr and Mrs E disputed that the hospital had used a phrase from the Mental Health Act7 meaning they only needed to argue that their actions were in the patient’s best interest and so they appealed. In October 2004, the European Court of Human Rights ruled in HL’s favour. The reasoning for their decision stated that the patient had been deprived of his liberty and it was a violating his human rights under Article 5 of the European Convention on Human Rights. The decision of the court resulted in the government introducing the Deprivation of Liberty Safeguards (DoLS) which came into action in April 2009.
The Deprivation of Liberty Safeguards intends to ensure anyone over the age of eighteen who lacks the capacity to give their consent in being placed into hospital or a care home for to be cared for or given treatment are only being deprived of liberty if it is decided to be in their best interest. The DoLS can be found in schedules A1 and 1A of the Mental Capacity Act8, added by the Mental Health Act9.
A more recent case example which shows how human rights are at risk in the UK was established in London Borough of Hillingdon v Neary10. The patient was autistic and suffered with learning difficulties also. Similarly to Bournewood, changes to his daily routine would cause him to become anxious and frightened. The patient lived with his father however in 2009 he became too ill to take care of Steven and therefore Steven was placed into a care unit. His behaviour in the care unit was challenging for the care team and because of this, it was decided that Steven would be happier if he were at home. The London Borough of Hillingdon decided that it was not in his best interest to go home. When making this decision they did not inform Steven’s father until April 2010. This case is a perfect example of human rights are at risk in the UK. Peter Jackson J ruled the breach of Article 8 to be the “nub” of the matter in this case11. Steven’s Article 8 ECHR rights were breached and it can be highlighted that although a court disagreeing with the local authority’s beliefs regarding to his best interests does not automatically imply a breach of Article 8, the lack of any attempt to assess advantages and disadvantages of care being give from home, and the local authority’s reluctance to listen to Mr Neary or listen to his concerns, these factors led the judge to presume that Steven’s Article 8 rights had not been respected.
In relation to Article 512, no Deprivation of Liberty Safeguards had been put into place and therefore had been no authority to deprive him of his liberty. Peter Jackson J made the point ‘where best interest assessments are inadequate and the supervisory body knows or ought to know this, the supervisory body is not bound to follow the recommendations’13. It was also held that Steven’s rights under Article 5(4) European Convention of Human Rights were breached due to the failure of appointing an Independent Mental Capacity Advocate under s.39D Mental Capacity Act14 failure to establish an effective review, and the delay in applying to the court. It was decided in a settlement that Steven would receive £35,000 in damages.
In P v Cheshire West and Chester Council15 concerns of the Deprivation of Liberty Safeguards increased considerably when the Supreme Court held that they applied to foster placements and to the placements that were ‘relatively normal’. P had learning difficulties and autism. He was unable to make his own decisions about his care treatment and living accommodation. The place he was living was called Z House. The staff at Z House had complete control over P and sometimes put him in a bodysuit to stop him from getting his continence pads. The Court of Appeal held that P required this particular care for his condition and he had not been deprived of his liberty in any way. Lady Hale makes the point “If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person.”16. Her comparison of someone with a disability to herself shows her beliefs that no one individual right is worth more than another. Lord Kerr, agreed with Lady Hale stating that “Liberty means the state or condition of being free from external constraint. It is predominantly an objective state. It does not depend on one’s disposition to exploit one’s freedom. Nor is it diminished by one’s lack of capacity”17
This case altered the definition of who was thought to be deprived of their liberty. It can be questioned whether these such arrangements amount to deprivation of liberty. By the time of the final hearing in April 2011, Baker J held that P was under the control of the staff at Z House, that he could not “go anywhere, or do anything, without their support or assistance”18. Lloyd LJ said it, “It is meaningless to look at the circumstances of P in the present case and compare them with those of a man of the same age but of unimpaired health and capacity… the right comparison is with another person of the same age and characteristics as P”19
In March 2017, the Law Commission suggested an alternative to the Deprivation of Liberty Safeguards (DoLS), and recommended Mental Capacity Act20 undergo review. The objective of the changes to the Act was to merge the new arrangement, the Liberty Protection Safeguards (LiPS) and to support an individual’s rights in areas like best interest decisions. The scheme would apply in all health and social facilities, and to anyone sixteen and above. The scheme also has the intention to introduce a two-tier system of security. The first part of the system involves the “reasonable body” would lead in producing existing medical assessments, and review an assessment of whether the planned care arrangements are necessary. The second part to the system involves an independent assessor working for the reasonable body however not involved in the individuals care, to review the assessments and authorise them if satisfied. An approved mental capacity professional would be called in on specific cases if patients refuse their care arrangements or have previously implied that they might.
Majority of patients who depend on the Deprivation of Liberty Safeguards suffer with dementia. Before 2014 where assessments for DoLS were said to have been carried out properly. Many people benefited from the legal protection provided and their quality of life improved due to the attentive care they were receiving. However, the Supreme Court’s ruling has placed staff and organisations under much pressure due to a vast increase in numbers of people dependent on DoLS.
DoLS have been subject to much criticism because they are complicated, both legally and administratively. Before 2014, any understanding of the DoLS was limited and it uncertain as to what a deprivation of liberty was. The government’s response to the criticism was to ask the Law Commission to propose alternative, less complicated safeguards.
The ruling of the Supreme Court has increased levels of awareness significantly among care home and hospital staff. The ruling created a drastic increase of assessments, which subsequently may result in a loss of quality as the pressure is so high to get so many more assessments done. Therefore, just as people are familiarising themselves with the current system of the DoLS, it is possible that it will be altered or replaced.
Replacing the DoLS with a new system, when health and social care fields are experiencing funding pressures and cuts is likely to raise concerns about training programmes being carried out properly.
It is clear by the evidence presented that there is a significant risk to Human Rights in relation to the deprivation of liberty in the United Kingdom and despite provisions such as the Deprivation of Liberty Safeguards and the Liberty Protection Safeguards to reduce the risk, not much has changed.
4 Human Rights Act 1998
6 HL v UK 2005 40 EHRR 32
7 The Mental Health Act 1983
8 The Mental Capacity Act A1 AND 1A
9 The Mental Health Act 2007
10 London Borough of Hillingdon v Neary 2011 EWHC 1377 (COP)
12 Human Rights Act 1998, Article 5
14 The Mental Capacity Act 2005, s.39D
15 P v Cheshire West and Chester Council 2014 UKSC 19; 2014 A.C. 896
20 The Mental Capacity Act 2005