The human rights. Failure by the government to do

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.

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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.

1 http://www.un.org/en/universal-declaration-human-rights/

2 www.mentalhealth.org.uk

3 https://www.rethink.org/media/2854020/a-mental-health-act-fit-for-tomorrow

 

4 Human
Rights Act 1998

5 https://www.legislation.gov.uk/ukpga/1998/42/schedule/1/part/I/chapter/4

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)

11 www.lawsociety.org.uk

12 Human Rights Act 1998, Article 5

13 www.lawsociety.org.uk

14 The Mental Capacity Act 2005, s.39D

15 P v
Cheshire West and Chester Council 2014 UKSC 19; 2014 A.C. 896

16 http://www.mentalcapacitylawandpolicy.org.uk/cheshire-west-the-supreme-courts-right-hook/

17 http://www.mentalcapacitylawandpolicy.org.uk/cheshire-west-the-supreme-courts-right-hook/

18 https://www.supremecourt.uk/decided-cases/docs/UKSC_2012_0068_Judgment

19 https://www.supremecourt.uk/decided-cases/docs/UKSC_2012_0068_Judgment

20 The Mental Capacity Act 2005