Challenging deprivation of liberty: advocating for your rights

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.

Contributing factors to providing an effective community-based forensic service for people with a learning disability: a literature review

“…O' Kane et al (2017) highlight the fact that DOLS can only be applied in that person's best interest and not to prevent them offending. A tribunal may refuse or remove DOLS arrangements when a person is assessed as ready for discharge, has capacity, meaning that best interest decisions cannot be applied and continues to pose a risk to themselves or others (O'Kane et al, 2017). This has specifically been seen in the PJ case law where by the Supreme Court has determined that a responsible clinician is not given the power under the Mental Health Act (1983) to impose condition within a Community Treatment Order which deprives a patient of his liberty (Welsh Ministers (Respondent) v. PJ (Appellant), 2018).…”