The Deprivation of Liberty Safeguards are currently being used far less often than the government forecast. Eight months after they were introduced, however, the DoLS have already begun to produce a body of case law.
Some judgments depend entirely on the facts of the case, but some are of much wider relevance. (DCC v KH and others, 11 September 2009; GJ v The Foundation Trust and others, 20 November 2009) In recent weeks, for example, Court of Protection judges have:
* Suggested that to transport an incapable person 100 miles (on a journey that was likely to take 2.5 hours) would be simple restraint, and not a deprivation of liberty, and so be covered by section 5 of the Mental Capacity Act 2005.
* Suggested that where a DoLS authorisation is in place, it will even permit a patient to be returned to the place in which he can be deprived of liberty.
* Ruled that when someone has to decide whether a patient could be detained under the Mental Health Act (and so be fall outside the DoLS), it is his view that counts, not the view of some notional reasonable man.
* Established a procedure to be followed by decision-makers in such circumstances.
* Given guidance on the approach to be taken when deciding whether a mental health patient objects to his care (and therefore can’t be brought within the DoLS).
* Confirmed that someone in a care home (as opposed to a hospital) who is receiving mental health care can be subject to the DoLS, even though he objects to that care.
It's too early, of course, to make generalisations. At the moment, however, the courts do seem to be taking a restrictive approach to what it means to be deprived of liberty. It seems that section 5 of the Mental Capacity Act allows doctors, nurses and social workers to do everything they could have hoped and more besides. Experience suggests, however,that the pendulum will start to swing back at some point. It's likely to be a case that does it, and there's a few of them coming down the line.
Monday, 30 November 2009
Thursday, 5 November 2009
Where a person is in a public place and seems to be suffering from mental disorder, a constable may arrest him and take him to a place of safety. Once there, the person may be held for up to 72 hours, while he is assessed for detention under the Mental Health Act.
The relevant power is contained in section 136 of the Act and there have long been concerns that in some cases, mentally disordered people are present in a public place only because they have been enticed there by the police. Now, we have to ask whether section 136 is being used against people who aren’t even suffering from mental disorder.
This question is raised by the latest statistics on the use of the Mental Health Act. Anyone arrested under the Act may be taken either to a hospital or to a police station. The new statistics concern only the first group of people (which is probably smaller than the second), and they show that in the year to April 2009, the section 136 power was used almost 8,500 times. That represents an increase of 20 per cent on the year before, and of more than 300 per cent over the decade.
Perhaps there are more mentally disordered people outside hospital, and perhaps more of them find their way into public places. And yet the new statistics show that the number of people detained under the Mental Health Act has gone up, by two per cent in a year and by six per cent over the decade.
And the conversion rates are equally troubling, for of the people held in hospital under section 136, almost three-quarters were not detained once they had been assessed. That figure is itself up a quarter on the previous year, and by 330 per cent over the last ten years. Only 1,751 of these people were subsequently detained under section 2 or 3, which means that anyone taken to hospital as a place of safety is almost four times less likely to be discharged than to be detained.
These statistics concern only a minority of people arrested under section 136, yet they beg some uncomfortable questions: are constables really getting it so wrong? Are the signs of mental disorder so hard to discern, or is there another possibility? Could it be that the Mental Health Act arrest-power is being used to deal with people who are merely troublesome or inconvenient; that in many cases, it is directed at public - not mental - disorder?