The phrase “Human Rights” refersto standard rights of all individuals, regardless of their nationality, race,religion, ethnicity or gender and are viewed as moral rights. Moral rights area natural right that exists from birth, apply to everyone and universal,irrespective of which society someone lives in. These rights cannot be given upor taken away. To have rights implies that others have obligations.
Thegovernment is required to respect and protect human rights. Failure by thegovernment to do so would be a violation of human rights. In contrast to moralrights, legal rights are different as they are created by governments, applyonly to some people in society, are not universal and can be given up oraltered.
The principle of universalrights relevant to everyone was first recognised by a document produced by theUnited Nations, known as the Universal Declaration of Human Rights1.The document was first signed in December 1948 with the intention of improvinghuman rights. Every year people arediagnosed with a mental health illness and require special care and support. Roughly40% of adults in the UK who suffer from a learning disability also have amental health condition.2Depending on an individual’s particular condition and their mental capacity,will determine the most practical care solution.
63,000 people were detainedunder the Mental Health Act in 2015/16 in England. – an increase of 47% overthe past decade.3 Some patientscan be treated in hospitals or care homes while others may have a condition ofa more serious nature and need to be admitted to a mental health ward where theywill receive round the clock care. Hospitals, care homes and mental healthwards 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 notleave and harm themselves or others.
Sometimespatients are unable to consent to be placed into these environments andtherefore are being deprived of their liberty. Article 5 of the Human RightsAct4states that ‘Everyone has the right to liberty and security of person’.5The case of HL v United Kingdom6 (theBournewood 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 cottagein Surrey. Every week HL would take the centre’s transport link to hisplacement. A number of years after he had gone to live with Mr and Mrs E, a newdriver took a different route to his placement. HL was agitated by this andtaken to the hospital where he was detained and his carers were not allowed tovisit him.
The case was unsuccessful in the High Court. The Court of Appealruled in their favour that the informal admission of HL to the hospital wasunlawful. In 1998 the House of Lords overturned the decision ruled by the Courtof Appeal’s ruling that a man who was admitted informally to the hospitalwithout consent had not been unlawfully detained. Mr and Mrs E disputed thatthe hospital had used a phrase from the Mental Health Act7 meaningthey only needed to argue that their actions were in the patient’s bestinterest and so they appealed.
In October 2004, the European Court of HumanRights ruled in HL’s favour. The reasoning for their decision stated that thepatient had been deprived of his liberty and it was a violating his humanrights under Article 5 of the European Convention on Human Rights. The decisionof the court resulted in the government introducing the Deprivation of LibertySafeguards (DoLS) which came into action in April 2009.The Deprivation of LibertySafeguards intends to ensure anyone over the age of eighteen who lacks thecapacity to give their consent in being placed into hospital or a care home forto be cared for or given treatment are only being deprived of liberty if it is decidedto be in their best interest. The DoLS can be found in schedules A1 and 1A ofthe Mental Capacity Act8,added by the Mental Health Act9.A more recent case examplewhich 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 becomeanxious and frightened.
The patient lived with his father however in 2009 he becametoo ill to take care of Steven and therefore Steven was placed into a careunit. His behaviour in the care unit was challenging for the care team andbecause 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 interestto go home. When making this decision they did not inform Steven’s father untilApril 2010. This case is a perfect example of human rights are at risk in theUK. Peter Jackson J ruled the breach of Article8 to be the “nub” of the matter in this case11.Steven’s Article 8 ECHR rights were breached and it can be highlighted thatalthough a court disagreeing with the local authority’s beliefs regarding tohis best interests does not automatically imply a breach of Article 8, the lackof any attempt to assess advantages and disadvantages of care being give fromhome, and the local authority’s reluctance to listen to Mr Neary or listen to hisconcerns, these factors led the judge to presume that Steven’s Article 8 rightshad not been respected.
In relation to Article 512, noDeprivation of Liberty Safeguards had been put into place and therefore had beenno authority to deprive him of his liberty. Peter Jackson J made the point ‘wherebest interest assessments are inadequate and the supervisory body knows orought to know this, the supervisory body is not bound to follow therecommendations’13. It wasalso held that Steven’s rights under Article 5(4) European Convention of Human Rightswere breached due to the failure of appointing an Independent Mental CapacityAdvocate under s.39D Mental Capacity Act14 failure to establish an effective review, andthe delay in applying to the court. It was decided in a settlement that Stevenwould receive £35,000 in damages.In P v Cheshire West and Chester Council15 concernsof the Deprivation of Liberty Safeguards increased considerably when theSupreme Court held that they applied to foster placements and to the placementsthat were ‘relatively normal’.
P had learning difficulties and autism. He wasunable to make his own decisions about his care treatment and livingaccommodation. The place he was living was called Z House.
The staff at Z Househad complete control over P and sometimes put him in a bodysuit to stop himfrom getting his continence pads. The Court of Appeal held that P required thisparticular care for his condition and he had not been deprived of his libertyin any way. Lady Hale makes the point “If it would be a deprivation of myliberty to be obliged to live in a particular place, subject to constantmonitoring and control, only allowed out with close supervision, and unable tomove away without permission even if such an opportunity became available, thenit must also be a deprivation of the liberty of a disabled person.”16. Her comparison of someone with adisability to herself shows her beliefs that no one individual right is worthmore than another. Lord Kerr, agreed with Lady Hale stating that “Liberty meansthe state or condition of being free from external constraint.
It ispredominantly an objective state. It does not depend on one’s disposition toexploit one’s freedom. Nor is it diminished by one’s lack of capacity”17Thiscase altered the definition of who was thought to be deprived of their liberty.It can be questioned whether these such arrangements amount to deprivation ofliberty. By the time of the final hearing in April 2011, Baker J held that Pwas 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 thepresent case and compare them with those of a man of the same age but ofunimpaired health and capacity… the right comparison is with another person ofthe same age and characteristics as P”19In March 2017, the LawCommission suggested an alternative to the Deprivation of Liberty Safeguards(DoLS), and recommended Mental Capacity Act20undergo review. The objective of the changes to the Act was to merge the newarrangement, the Liberty Protection Safeguards (LiPS) and to support anindividual’s rights in areas like best interest decisions. The scheme wouldapply in all health and social facilities, and to anyone sixteen and above. Thescheme also has the intention to introduce a two-tier system of security. Thefirst part of the system involves the “reasonable body” would lead in producingexisting medical assessments, and review an assessment of whether the plannedcare arrangements are necessary.
The second part to the system involves anindependent assessor working for the reasonable body however not involved inthe individuals care, to review the assessments and authorise them ifsatisfied. An approved mental capacityprofessional would be called in on specific cases if patients refuse their carearrangements or have previously implied that they might.Majority of patients who dependon the Deprivation of Liberty Safeguards suffer with dementia. Before 2014where assessments for DoLS were said to have been carried out properly. Many peoplebenefited from the legal protection provided and their quality of life improveddue to the attentive care they were receiving. However, the Supreme Court’sruling has placed staff and organisations under much pressure due to a vastincrease in numbers of people dependent on DoLS.
DoLS have been subject tomuch criticism because they are complicated, both legally and administratively.Before 2014, any understanding of the DoLS was limited and it uncertain as towhat a deprivation of liberty was. The government’s response to the criticism wasto ask the Law Commission to propose alternative, less complicated safeguards. The ruling of the SupremeCourt has increased levels of awareness significantly among care home andhospital staff. The ruling created a drastic increase of assessments, whichsubsequently may result in a loss of quality as the pressure is so high to getso many more assessments done. Therefore, just as people are familiarisingthemselves with the current system of the DoLS, it is possible that it will bealtered or replaced.
Replacing the DoLS with a newsystem, when health and social care fields are experiencing funding pressuresand cuts is likely to raise concerns about training programmes being carriedout properly.It is clear by the evidence presentedthat there is a significant risk to Human Rights in relation to the deprivationof liberty in the United Kingdom and despite provisions such as the Deprivationof Liberty Safeguards and the Liberty Protection Safeguards to reduce the risk,not much has changed. 1 http://www.un.
uk3 https://www.rethink.org/media/2854020/a-mental-health-act-fit-for-tomorrow 4 HumanRights Act 19985 https://www.legislation.
gov.uk/ukpga/1998/42/schedule/1/part/I/chapter/46 HL v UK 2005 40 EHRR 327 The Mental Health Act 19838 The Mental Capacity Act A1 AND 1A9 The Mental Health Act 200710 London Borough of Hillingdon v Neary 2011 EWHC 1377(COP)11 www.lawsociety.org.uk12 Human Rights Act 1998, Article 513 www.lawsociety.org.
uk14 The Mental Capacity Act 2005, s.39D15 P vCheshire West and Chester Council 2014 UKSC 19; 2014 A.C. 89616 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_Judgment19 https://www.supremecourt.uk/decided-cases/docs/UKSC_2012_0068_Judgment20 The Mental Capacity Act 2005