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Article
Publication date: 11 May 2009

Max Pickard

The Deprivation of Liberty Safeguards (DoLS) are due to be implemented imminently. This legislation serves as an extension of the Mental Capacity Act designed to close the…

Abstract

The Deprivation of Liberty Safeguards (DoLS) are due to be implemented imminently. This legislation serves as an extension of the Mental Capacity Act designed to close the ‘Bournewood Gap’ and is of particular relevance to learning disability services. This article discusses the DoLS from a legal, philosophical and ethical perspective.

Details

Advances in Mental Health and Learning Disabilities, vol. 3 no. 1
Type: Research Article
ISSN: 1753-0180

Keywords

Article
Publication date: 6 March 2017

Niall O’Kane, Ian Hall and Mo Eyeoyibo

The purpose of this paper is to review a case of a man with a mild learning disability and autistic spectrum disorder who successfully appealed against a Deprivation of Liberty

Abstract

Purpose

The purpose of this paper is to review a case of a man with a mild learning disability and autistic spectrum disorder who successfully appealed against a Deprivation of Liberty Safeguards authorisation under English law.

Design/methodology/approach

The authors wanted to identify the factors contributing to the individual’s deprivation of liberty and subsequent successful appeal. The authors examined the accounts from the experts involved on each side of the case including different views on the person’s capacity to make certain decisions. The authors examined several of the individual’s psychological and psychiatric assessments. The authors interviewed the individual on two occasions: once during the appeals process, and following his successful appeal.

Findings

The authors identified several reasons as to why the individual was successful in appealing against the Deprivation of Liberty Safeguards. First, the individual was able to seek legal support to appeal independently. Second, experts involved on each side of the case had differing opinions regarding capacity to make certain decisions. Third, the indication for the Deprivation of Liberty Safeguards was subsequently declared not valid. Finally, the authors found that the quality of life and psychological well-being for the individual improved following removal of restrictions.

Practical implications

The authors highlight the wider issues relating to an individuals’ rights to challenge authorisations in the Court of Protection as well as to future considerations and directions of the Deprivation of Liberty Safeguards legislation in light of evolving case law.

Social implications

The authors highlight the importance of empowering patients in matters relating to their care and treatment, as well as protecting their human rights, dignity and autonomy.

Originality/value

The authors examine the barriers to challenging Deprivation of Liberty Safeguards authorisation and the ever-evolving Deprivation of Liberty Safeguards process.

Details

Advances in Mental Health and Intellectual Disabilities, vol. 11 no. 2
Type: Research Article
ISSN: 2044-1282

Keywords

Article
Publication date: 28 April 2010

Les Carr

This article examines the Deprivation of Liberty Safeguards (DoLS), specifically in regards to how they relate to individuals with a neurodisability. The DoLS and their operation…

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Abstract

This article examines the Deprivation of Liberty Safeguards (DoLS), specifically in regards to how they relate to individuals with a neurodisability. The DoLS and their operation are described before looking at how they operate in practice by describing two specific assessments. It then looks at some of the authorisations estimated by the Department of Health before examining some of the criticisms of the Deprivation of Liberty Safeguards.

Details

Social Care and Neurodisability, vol. 1 no. 1
Type: Research Article
ISSN: 2042-0919

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Article
Publication date: 14 August 2017

Tim Spencer-Lane

The purpose of this paper is to provide a brief overview of the Law Commission’s final report and recommendations on the reform of the deprivation of liberty safeguards under the…

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Abstract

Purpose

The purpose of this paper is to provide a brief overview of the Law Commission’s final report and recommendations on the reform of the deprivation of liberty safeguards under the Mental Capacity Act.

Design/methodology/approach

Summary of main report.

Findings

The proposals contained in the Law Commision Review and proposals for law reform are outlined.

Originality/value

This is a summary.

Details

The Journal of Adult Protection, vol. 19 no. 4
Type: Research Article
ISSN: 1466-8203

Keywords

Article
Publication date: 3 January 2017

Edmund Marcus Horowicz

The purpose of this paper is to specifically analyse whether parents should have the legal authority to authorise a deprivation of liberty for children with a learning disability…

Abstract

Purpose

The purpose of this paper is to specifically analyse whether parents should have the legal authority to authorise a deprivation of liberty for children with a learning disability. As a result of parental consent being recognised as holding legal authority, these children have their right to liberty under Article 5 engaged. It will be argued that the courts’ failure to support this view stems from the confusing concept of the “zone of parental control”.

Design/methodology/approach

A doctrinal methodology is used, examining domestic law and the European Convention on Human Rights (ECHR), with analysis of relevant literature.

Findings

Decisions regarding deprivation of liberty in children under the age of 16 should undoubtedly include parental consent. The concern expressed here is the sovereignty of parental consent over all else. The law is confusing. In one respect rights under the ECHR are universal. However, both UK and European courts have accepted the premise that it is entirely within the zone of parental control to effectively deprive a child of liberty without procedural or judicial review. Furthermore, there are wider potential issues for children being considered to be deprived of liberty following Cheshire West.

Originality/value

The paper is a discussion piece that is critical of the existing law and uses the literature and original opinions to recommend an alternative approach.

Details

Tizard Learning Disability Review, vol. 22 no. 1
Type: Research Article
ISSN: 1359-5474

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Article
Publication date: 11 May 2012

Ben Troke

This paper aims to review the recent Court of Protection case law on deprivation of liberty and consider whether it will help to achieve the right balance between minimising state…

366

Abstract

Purpose

This paper aims to review the recent Court of Protection case law on deprivation of liberty and consider whether it will help to achieve the right balance between minimising state interference with individuals and families, and protection of the most vulnerable, or risk undermining the core purpose of the system.

Design/methodology/approach

The paper reviews the underlying rationale of the Deprivation of Liberty Safeguards (DOLS), the implications of the recent key Court of Appeal judgment in P v. Cheshire West and Chester.

Findings

There are significant potential adverse effects from the judgment in Cheshire, and the way in which it has been interpreted to date, including a risk of undermining the very purpose of DOLS, and a risk of discriminatory effect.

Originality/value

The paper provides a detailed analysis of Cheshire from the perspective of a Court of Protection practitioner, and advice on a practical approach to dealing with the concerns it raises.

Details

Social Care and Neurodisability, vol. 3 no. 2
Type: Research Article
ISSN: 2042-0919

Keywords

Article
Publication date: 4 November 2014

Chris Lennard

As a healthcare professional caring for people who lack capacity, the author has noted a wide variation in knowledge and awareness by staff of the Deprivation of Liberty Safeguards

Abstract

Purpose

As a healthcare professional caring for people who lack capacity, the author has noted a wide variation in knowledge and awareness by staff of the Deprivation of Liberty Safeguards (DoLS). The purpose of this paper is to examine the DoLS and the background to their coming into being, describes their operation and qualifying requirements, and the continuing problems with their application nationwide.

Design/methodology/approach

Utilising a literature search of government papers, official reports of statutory bodies, and critical studies, it examines the central criticisms of DoLS, particularly the lack of a clear statutory definition of deprivation of liberty, and reports on the wide variation in knowledge of the legislation by staff in health and social care, and uneven application of the safeguards nationwide.

Findings

It cites evidence from studies showing that even professionals with high levels of expertise in the field find the legislation confusing, and presents testimony from legal experts that case law has failed to clarify the issues for professionals.

Originality/value

Finally, it argues that the legislation is now too complex to successfully amend, and tentatively suggests that, pending a government review to make the process more understandable, health care professionals make ‘precautionary’ applications for DoLS. The author argues that, notwithstanding its faults, the process is a worthwhile exercise in care planning and ensuring that people's care is in their best interests and the least restrictive available.

Details

Social Care and Neurodisability, vol. 5 no. 4
Type: Research Article
ISSN: 2042-0919

Keywords

Article
Publication date: 30 November 2012

David Hewitt

This paper's aim is to consider three ways in which, recently, the English courts have sought to define deprivation of liberty (and, maybe, limit the effect of safeguards against…

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Abstract

Purpose

This paper's aim is to consider three ways in which, recently, the English courts have sought to define deprivation of liberty (and, maybe, limit the effect of safeguards against it).

Design/methodology/approach

Two significant decisions of the Court of Appeal were considered, together with one each of the House of Lords and the European Court of Human Rights. Consideration was also given to the context of those decisions, as disclosed in official policy documents and at least one piece of academic research.

Findings

The decisions in question have limited the circumstances that will amount to deprivation of liberty and thereby reduced the scope of the Deprivation of Liberty Safeguards (DoLS). The English courts' understanding of false imprisonment is diverging from their understanding of deprivation of liberty. The English courts differ from the European Court of Human Rights in their understanding of the relevance of “purpose” to the question of deprivation of liberty. If the former are correct, the DoLS – and maybe even the Mental Health Act – are redundant.

Originality/value

This is the first time these cases, and this subject, have been analysed in this way; and that these findings have been published together.

Details

The Journal of Adult Protection, vol. 14 no. 6
Type: Research Article
ISSN: 1466-8203

Keywords

Article
Publication date: 15 June 2012

David Hewitt

This paper seeks to consider the Deprivation of Liberty Safeguards (DoLS) and, in particular, the extent to which the functions of supervisory bodies can, or should be, performed…

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Abstract

Purpose

This paper seeks to consider the Deprivation of Liberty Safeguards (DoLS) and, in particular, the extent to which the functions of supervisory bodies can, or should be, performed as part of wider “safeguarding” responsibilities.

Design/methodology/approach

The paper reports the views of practitioners, given in response to comments made by the Care Quality Commission.

Findings

Some practitioners believe that DoLS and safeguarding functions should be consolidated, and some, that they should remain discrete; most, however, accept that the two functions should work closely together, and also that an understanding of the Mental Capacity Act is important for each; there is a suspicion that DoLS‐activity is greatest where the two functions are kept discrete (and, it is assumed, DoLS practitioners therefore have more to prove); there is also concern about financing, particularly within discrete DoLS services, and, furthermore, some suspicion about the whole business ofsafeguarding”; the Neary case continues to cast a long shadow.

Originality/value

This is believed to be the first time practitioners' views have been sought or at least published on this question.

Details

The Journal of Adult Protection, vol. 14 no. 3
Type: Research Article
ISSN: 1466-8203

Keywords

Article
Publication date: 11 May 2009

Simon Bonell

The Deprivation of Liberty Safeguards are an extension to the Mental Capacity Act (2005). They provide protection for those who lack capacity to make a decision about residing in…

Abstract

The Deprivation of Liberty Safeguards are an extension to the Mental Capacity Act (2005). They provide protection for those who lack capacity to make a decision about residing in a hospital or care home and require a deprivation of their liberty. The following paper is a summary of the safeguards.

Details

Advances in Mental Health and Learning Disabilities, vol. 3 no. 1
Type: Research Article
ISSN: 1753-0180

Keywords

1 – 10 of 357