School Papers

The human rights. Every year people are diagnosed

The phrase “Human Rights” refers
to standard rights of all individuals, regardless of their nationality, race,
religion, ethnicity or gender and are viewed as moral rights. Moral rights are
a natural right that exists from birth, apply to everyone and universal,
irrespective of which society someone lives in. These rights cannot be given up
or taken away. To have rights implies that others have obligations. The
government is required to respect and protect human rights. Failure by the
government to do so would be a violation of human rights. In contrast to moral
rights, legal rights are different as they are created by governments, apply
only to some people in society, are not universal and can be given up or
altered.

The principle of universal
rights relevant to everyone was first recognised by a document produced by the
United Nations, known as the Universal Declaration of Human Rights1.

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The document was first signed on in December 1948 with the intention of
improving human rights.

 

Every year people are
diagnosed with a mental health illness and need special care and support. Roughly
40% of adults in the UK who suffer from a learning disability also have a
mental health condition.2
Depending on an individual’s particular condition and their mental capacity,
will determine the most practical care solution. Some patients can be treated in
hospitals or care homes while others may have a condition of a more serious
nature and need to be admitted to a mental health ward where they will receive round
the clock care. Hospitals, care homes and mental health wards 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 not leave and
harm themselves or others.  Sometimes
patients are unable to consent to being placed into these environments and
therefore are being deprived of their liberty. Article 5 of the Human Rights
Act3
states that ‘Everyone has the right to liberty and security of person’.4

The case of HL v United
Kingdom5 (the
Bournewood 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 cottage
in Surrey. Every week HL would take the centre’s transport link to his
placement. A number of years after he had gone to live with Mr and Mrs E, a new
driver took a different route to his placement. HL was agitated by this and
taken to hospital where he was detained and his carers were not allowed to
visit him. The case was unsuccessful in the High Court. The Court of Appeal
ruled in their favour that the informal admission of HL to hospital was
unlawful. In 1998 the House of Lords overturned the decision ruled by the Court
of Appeal’s ruling that a man who was admitted informally to hospital without
consent had not been unlawfully detained. Mr and Mrs E disputed that the
hospital had used a phrase form the Mental Health Act6 meaning
they only needed to argue that their actions were in the patient’s best
interest and so they appealed. In October 2004, the European Court of Human
Rights ruled in HL’s favour. The reasoning for their decision stated that the
patient had been deprived of his liberty and it was a violating his human
rights under Article 5 of the European Convention on Human Rights. The decision
of the court resulted in the government introducing the Deprivation of Liberty
Safeguards (DoLS) which came into action in April 2009.

The Deprivation of Liberty
Safeguards intends to ensure anyone over the age of eighteen who lacks the
capacity to give their consent in being placed into hospital or a care home for
to be cared for or given treatment are only being deprived of liberty if it is decided
to be in their best interest. The DoLS can be found in schedules A1 and 1A of
the Mental Capacity Act7,
added by the Mental Health Act8.

A more recent case example
which shows how human rights are at risk in the UK was established in London
Borough of Hillingdon v Neary9. The
patient was autistic and suffered with learning difficulties also. Similarly to
Bournewood, changes to his daily routine would cause him to become anxious and frightened.

The patient lived with his father however in 2009 he became too ill to take
care of Steven and therefore Steven was placed into a care unit. His behaviour
in the care unit was challenging for the care team and because 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 interest to go home. When making this
decision they did not inform Steven’s father until April 2010. This case is a
perfect example of human rights are at risk in the UK.  Peter Jackson J ruled the breach of Article 8 to
be the “nub” of the matter in this case10.

Steven’s Article 8 ECHR rights were breached and it can be highlighted that
although a court disagreeing with the local authority’s beliefs regarding to
his best interests does not automatically imply a breach of Article 8, the lack
of any attempt to assess advantages and disadvantages of care being give from
home, and the local authority’s reluctance to listen to Mr Neary or listen to his
concerns, these factors led the judge to presume that Steven’s Article 8 rights
had not been respected.

In relation to Article 511, no
Deprivation of Liberty Safeguards had been put into place and therefore had been
no authority to deprive him of his liberty. Peter Jackson J made the point ‘where
best interest assessments are inadequate and the supervisory body knows or
ought to know this, the supervisory body is not bound to follow the
recommendations’12. It was
also held that Steven’s rights under Article 5(4) European Convention of Human Rights
were breached due to the failure of appointing an Independent Mental Capacity Advocate
under s.39D Mental Capacity Act13  failure to establish an effective review, and
the delay in applying to the court. It was decided in a settlement that Steven
would receive £35,000 in damages.

In P v Cheshire West and Chester Council14 concerns
of the Deprivation of Liberty Safeguards increased considerably when the
Supreme Court held that they applied to foster placements and to the placements
that were ‘relatively normal’. Lady Hale makes the point “If it would be a
deprivation of my liberty to be obliged to live in a particular place, subject
to constant monitoring and control, only allowed out with close supervision,
and unable to move away without permission even if such an opportunity became
available, then it must also be a deprivation of the liberty of a disabled
person.”15. Lord Kerr, agreed with Lady Hale
stated that “Liberty means the state or condition of being free from external
constraint. It is predominantly an objective state. It does not depend on one’s
disposition to exploit one’s freedom. No is it diminished by one’s lack of
capacity”16

It
can be questioned whether these arrangements amounted to deprivation of liberty.

By the time of the final hearing in April 2011, Baker J held that P was under
the control of the staff at Z House, that he could not “go anywhere, or do
anything, without their support or assistance”17.

Lloyd LJ said it, “It is meaningless to look at the circumstances of P in the
present case and compare them with those of a man of the same age but of
unimpaired health and capacity… the right comparison is with another person of
the same age and characteristics as P”18

In March 2017, the Law
Commission suggested an alternative to the Deprivation of Liberty Safeguards
(DoLS), and recommended Mental Capacity Act19
undergo review. The objective of the changes to the Act was to merge the new
arrangement, the Liberty Protection Safeguards (LiPS) and to support an
individual’s rights in areas like best interest decisions. The scheme would
apply in all health and social facilities, and to anyone sixteen and above. The
scheme also has the intention to introduce a two-tier system of security. The
first part of the system involves the “reasonable body” would lead in producing
existing medical assessments, and review an assessment of whether the planned
care arrangements are necessary. The second part to the system involves an
independent assessor working for the reasonable body however not involved in
the individuals care, to review the assessments and authorise them if
satisfied.  An approved mental capacity
professional would be called in on specific cases if patients refuse their care
arrangements or have previously implied that they might.

Based on the evidence it’s
clear that there is significant risk to Human Rights in relation to the
deprivation of liberty in the United Kingdom and despite provisions such as the
Deprivation of Liberty Safeguards and the Liberty Protection Safeguards to
reduce the risk, not much has changed.

1 http://www.un.org/en/universal-declaration-human-rights/

2 www.mentalhealth.org.uk

3 Human
Rights Act 1998

4 https://www.legislation.gov.uk/ukpga/1998/42/schedule/1/part/I/chapter/4

5 HL v UK 2005 40 EHRR 32

6 The Mental Health Act 1983

7 Mental Capacity Act A1
AND 1A

8 Mental Health Act 2007

9 London Borough of Hillingdon v Neary 2011 EWHC 1377
(COP)

10 www.lawsociety.org.uk

11 Human Rights Act 1998
Article 5

12 www.lawsociety.org.uk

13 Mental Capacity Act 2005, s.39D

14 P v
Cheshire West and Chester Council 2014 UKSC 19; 2014 A.C. 896

15 http://www.mentalcapacitylawandpolicy.org.uk/cheshire-west-the-supreme-courts-right-hook/

16 http://www.mentalcapacitylawandpolicy.org.uk/cheshire-west-the-supreme-courts-right-hook/

17 https://www.supremecourt.uk/decided-cases/docs/UKSC_2012_0068_Judgment

18 https://www.supremecourt.uk/decided-cases/docs/UKSC_2012_0068_Judgment

19 The Mental Capacity Act 2005

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