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Deprivation of liberty and Mental Capacity Act – Europe beats Supreme Court to the punch?

The ECHR judgment in MH v UK is out today, even as we all await the Supreme Court deliberations and decision in Cheshire West.

I honestly can’t put it better than Lucy Series does, and if I can send a few people interested in mental capacity / civil liberties over to her sensational blog, I’ll count that as a very good day, so here it is.


I’ll give you her opening, to whet your appetite

Whilst 18 barristers fought it out over the Cheshire case in the Supreme Court this week, the European Court of Human Rights (ECtHR) handed down a judgment which could have equally dramatic consequences for the Mental Capacity Act 2005 deprivation of liberty safeguards (MCA DoLS): MH v UK.  MH v UK confirmed what I have suspected for a long time, that the DoLS fall short of the requirements of Article 5(4) ECHR – the right to ‘take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful’.  The key issue is that without the assistance of a third party a person detained under the DoLS is unable (in practice) to be able to exercise their right of appeal, but there is no failsafe means by which the DoLS guarantee the requisite support.  In essence, there may be duties upon various entities to assist a person in exercising their right of appeal under the DoLS, arising via the Human Rights Act 1998 (HRA).  But it is not entirely clear who, and few people – at present – are interpreting them in that way.  The million dollar question is – how do we respond to this?


Her beginners guide to Cheshire West is also very good


(See folks, this is what law writing actually looks like when it is done properly rather than my sarcasm and cut-and-paste.  Even if you aren’t involved in adult social care law, Lucy’s stuff is good for the brain)

About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

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