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Panorama and the deprivation of liberty safeguards, part 2

Yesterday I posted linksto two blogs asking why the deprivation of liberty safeguards were notapplied at Winterbourne View, the learning disability hospital currently in themidst of an abuse scandal.

I was then swiftly contacted with an answer to that question by RogerHargreaves, author of the Mental Health Alliance’s report on the implementationof the safeguards published last July, a man who is considered something of an authorityon the subject.

Below is what he sent in response:

“My understanding is that Winterbourne View is a hospital providingtreatment for mental disorder and registered to take patients detained underthe Mental Health Act (and that at least some of its patients were detainedunder that Act).

“All the patients would therefore be “mental health patients”for the purposes of the deprivation of liberty safeguards (DoLS) and could bedetained under it only if they weren’t objecting – i.e. if they were completelycompliant with the treatment and care regime and not objecting to being there.Even if they weren’t objecting, the “primacy principle” establishedin the GJ case would still apply, giving precedence to the Mental Health Act.So, if they were being deprived of their liberty, which would require thehospital to have legal authority to detain them, the Mental Health Act ratherthan DoLS would have to be used if that was possible.

“It seems unlikely, given the purpose and nature of the establishment,that there were any patients there who couldn’t have been detained, if necessary,under the Mental Health Act.

“The question that needs to be asked, therefore, is whether there were any”informal” patients who were being deprived of their liberty but whocould and should have been detained under the Mental Health Act.”

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