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Deprivation of liberty: ‘I fear more unnecessary detentions’

Prison by .jpgLucy Series, blogger and researcher in law at the University of Exeter, argues today’s court ruling to free an autistic man from social care control may not be the last if social care professionals don’t expand their knowledge of the system that took his liberty.

The deprivation of liberty safeguards contain many rights for families of people lacking capacity, but they’re not much help if they, or the professionals supporting them, don’t know about them. That’s why it took Steven Neary’s father a year to get his son returned home, as reported today.

The safeguards were established following a similar detention of man at Bournwood hospital in 1997, but in that instance it only took five months for the young man to be returned home to his parents.

Steven Neary was detained under the new safeguards, but they are complex and difficult to understand.  The Mental Health Alliance has reported that even the professionals who are meant to understand them have difficulty – so what chance do families have?

 

When people are formally deprived of their liberty, like Steven, they and their ‘personal representatives’ have a right to independent advocacy services to help support them.  Professionals acting on behalf of supervisory bodies are meant to refer representatives or detainees to advocacy services where they think they are having trouble accessing their rights. But the Mental Health Alliance has found widespread failure to do this, and said ‘the vast majority of family representatives are receiving no support in grappling with an opaque and impenetrable system’.

Neary’s case also highlights widespread shortage of legal expertise in this area – Mark Neary, Steven’s father, called over 50 law firms before he found one who could take his case. The Independent reported that one solicitor had told Mark Neary he wasn’t entitled to legal aid. Personal representatives automatically qualify for legal aid under the safeguards, whatever their income, but families could be easily deterred by solicitors misinforming them.

Where there are serious disputes about where a person should live, it is good practice for local authorities to refer the case to the Court of Protection to decide. Steven’s case was finally brought to court in December by Mark’s solicitors, rather than the local authority.  Highly unusually, the judge immediately ordered that Steven could return home, and a hearing in May will determine whether the council acted unlawfully when it deprived Steven of his liberty.

Situations like Mark and Steven’s could be resolved more quickly if accessible information and advice was more widely available to families. But until the system is more widely understood by those charged with administering it I fear we may see yet more heartbreaking cases like Neary’s.

Image by derekskey on Flickr

One Response to Deprivation of liberty: ‘I fear more unnecessary detentions’

  1. Jess 12 April , 2013 at 2:40 am #

    I absolutely agree with this. The advocacy services are fantastic, but this isn’t of much use unless those who have a right to their support (under statute) know that they can access it!

    There is little public awareness of the DOLS framework, but what is most worrying, is the lack of awareness within the care industry itself. And if they are aware, a lack of understanding of how to actually go about imposing the framework correctly and lawfully, in a way that is actually in the individuals best interests.

    I am a legal aid practitioner, who advises on, and represents clients, in challenges to Standard Authorisations in the South. Although free representation is available, my understanding it that this can only be accessed via a Law Firm who has the relevant Legal Aid Contract. With Legal Aid contracts being significantly reduced on top of all the other cuts, forcing some firms to stop carrying out legal aid work, it is likely that it will continue to get more difficult for individuals and their family members to access the legal advice to which they are entitled.

    Work must be carried out to increase public, and professional awareness of the use and scope of the DOLS framework, otherwise, some individuals could still end up in the same situation as in the Bournewood case.