Conference: Rethinking Deprivation of Liberty in a Health and Social Care Context

30 September 2015, Senate House, Malet Street, London, WC1E 7HU 

This conference brings experts together to consider the Deprivation of Liberty Safeguards (DoLS) and how they may be reformed. Participants will consider the problems that confront health and social care practitioners and those living in care arrangements as a result of the current legal framework.

Drawing on the experience of other jurisdictions and a wide range of expertise, the conference will provide a space for evaluating alternative frameworks for DoLS. In this way, we aim to assist the process of legislative reform in England and Wales and to enhance collaboration in the improvement of care practice in light of cross-disciplinary, comparative and international perspectives.

Deprivation of Liberty Safeguards – context

The Deprivation of Liberty Safeguards were introduced in England and Wales in 2007 and came into force in 2009 to bridge the so-called “Bournewood gap” identified by the European Court of Human Rights in the case of HL v UK [2004] ECHR 471. This decision found that the lack of legal safeguards for incapacitated adults deprived of their liberty in hospitals and care homes was a breach of Art.5 of the ECHR.

In March 2014 the Supreme Court’s decision in Cheshire West [2014] UKSC 19 clarified the legal test for deprivation of liberty in this context. An incapacitated person, whose care arrangements are the state’s responsibility, is to be considered objectively deprived of her liberty if she is subject to continuous supervision and control and is not free to leave.  This is the case irrespective of the person’s compliance or lack of objection and of the relative normality of the placement or the reason behind a particular placement.

This decision has had a number of significant consequences for those living in care arrangements – including people with learning disabilities and people with dementia – and their carers. They include:

  • More people in hospitals and care homes are now considered to be deprived of their liberty.  There is a substantial body of evidence that local authorities’ resources to meet the surge in demand for DoLS assessments are insufficient;
  • Social and health care bodies are being further stretched by the need to make applications to the Court of Protection for authority to deprive individuals of their liberty in environments other than care homes and hospitals, where DoLS cannot be used;
  • There has been a backlash by health and social professionals against the demands of the assessment process and the extent to which that process militates against the delivery of safe and effective care and treatment.

DoLS have constantly been criticised for being overly complex and excessively bureaucratic.  In 2014, a House of Lords Select Committee conducting a post-legislative scrutiny [pdf] of the Mental Capacity Act 2005 found that DoLS are not “fit for purpose” and called for them to be replaced.  In April 2015 the Law Society, commissioned by the Department of Health, issued new practical guidance on DoLS including a range of case studies on care homes, hospitals, supported living, and care for under 18s. The Law Commission has been asked to review the law relating to deprivation of liberty, and the provisions of Schedule A1.  A consultation paper will be issued in the summer of 2015, with a report and draft legislation due in the summer of 2017.

Objectives

  • To identify the problems that confront health and social care practitioners and service users as a result of the current legislative framework in England and Wales;
  • To reflect upon the meaning of liberty and of deprivation of liberty in the health and social care context;
  • To evaluate alternative frameworks for authorising deprivation of liberty based on the experience of other jurisdictions;
  • To assist in the process of legislative reform in England and Wales.

The conference has been organised by Alex Ruck Keene, Catherine Penny, Daniel WangRichard Ashcroft and Ruth Fletcher. They intend to publish papers developed from the conference as a special issue of the International Journal of Mental Health and Capacity Law in 2016.

Programme

Conference schedule [PDF 206KB]

Organisations

Speakers

  • Alex Ruck Keene – Barrister and Honorary Research Lecturer, University of Manchester
  • Colin Harper – Deputy Director of the Law Centre in Northern Ireland
  • Chris Danbury – Honorary Secretary of the Intensive Care Society
  • Eilionoir Flynn – Senior Lecturer, NUI Galway
  • Jill Stavert – Reader, Edinburgh Napier University
  • Laura Dunlop QC – Barrister and former Law Commissioner, Scottish Law Commission
  • Lucy Series – Researcher, Cardiff University
  • Neil Allen – Barrister and Lecturer, University of Manchester
  • Peter Bartlett – Professor, University of Nottingham
  • Richard Ashcroft, Professor, Queen Mary University of London
  • Sara Ryan – Senior Research Lead, University of Oxford, and #JusticeforLB
  • Sheila Wildeman – Associate Professor, Dalhousie University
  • Tim Spencer-Lane – Lawyer at the Law Commission of England and Wales responsible for the project to reform the law relating to deprivation of liberty
  • Walter Boente – Centre of Comparative, European and International Law

How to book

CPD points will be available for attendees. This event is free to attend, but prior registration is required. To register, please visit the School of Law Eventbrite pageby 28 September 2015.

Contact

For further information please contact Daniel Wei L Wang (daniel.wang@qmul.ac.uk)


Photography, video and audio recording

Please note that School of Law events may be photographed or video and audio recorded. These materials will be used for internal and external promotional purposes only by Queen Mary University of London. If you object to appearing in the photographs, please let our photographer know on the day. Alternatively you can email lawevents@qmul.ac.uk in advance of the event that you are attending.

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