Monthly Archives: August 2013

The Right to Review of a Deprivation of Liberty – Amanda Keeling

The House of Lords has recently established a Committee to review the Mental Capacity Act 2005 and the accompanying Deprivation of Liberty Safeguards.  They are examining many aspects (see the call for evidence here), but one thing that I really think needs reconsidering is the review mechanism.

Briefly, there are two mechanisms for review of a DoLS authorisation set out under schedule A1 to the MCA.  The initial approach should be an application for review to the supervisory body, which can request the review of any of the 6 qualifying criteria for the DoLS authorisation, to ensure they are still met.  The problem here, is that the supervisory body is the body which authorised the application in the first place; if they have done their job correctly, and not simply ‘rubber stamped’ the application, then they should have already checked that these criteria have been met.  If this is a case of disagreeing with the original assessments, rather than a review on the basis that the circumstances have changed (such as the individual regaining capacity), then this begins to seem like a weak process.  The supervisory body are not independent, and relies on good practice from everyone concerned.  As Mark and Steven Neary found out, the absence of external scrutiny on such a process, can result in collusion and abuse of the process.

The second route of appeal is directly to the Court of Protection.  This is an external mechanism, and as such should be unbiased and objective.  It is, however, costly and lengthy, and can take some time before anything is resolved.  Further, the court’s judgments on what constitutes a deprivation of liberty have been narrowing over the past few years (such as Cheshire West and P and Q), which the cynical amongst us could interpret as a policy decision to attempt to reduce the number of cases coming before an already-overworked court.

The right to a review of a deprivation of liberty is set out in the European Convention on Human Rights (ECHR), which is directly binding in domestic law by the Human Rights Act 1998.  Article 5(4) sets out that individuals who are deprived of their liberty ‘be entitled 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’.  Recently, the European Court on Human Rights (ECtHR) has had cause to consider this provision in considerable depth, as it has heard a number of striking cases on issues of capacity and guardianship from Eastern Europe.

The recent cases are Kedzior v Poland, Stanev v Bulgaria, DD v Lithuania and Lashin v Russia.  All four applicants had a diagnosis of schizophrenia and had been found totally or partially incapacitated by a domestic court, and appointed a guardian.  The nuances of guardianship law are slightly different in each Member State, but the basic premise of incapacitation and guardianship is that the individual is no longer considered a legal person, and their guardian is their representative for the purposes of legal decision-making.  This includes the making of applications to a court of both their incapacitation and guardianship status, and their deprivation of liberty.

All four were found to be deprived of their liberty under article 5(1) of the ECHR, and that they had not had sufficient access to a review of that deprivation of liberty.  Mr Stanev was not permitted to bring a case for review of his placement in a social care home, as his guardian had not authorised his representation by a lawyer.  Though his guardian was not opposed to his making an application, the paperwork had not been completed correctly.  Ms DD was not permitted to make an application at all, only her guardian was permitted to do so; in her case, her guardian was opposed to her making any such application for review of her status.  The situation was similar for Mr Kedzior.  In the case of Mr Lashin, the Psychiatric Care Act in Russia provides for automatic review of the detention of people held under compulsory detention every 6 months.  Mr Lashin was considered a voluntary patient due to being placed there under consent of his guardian, and therefore did not have access to these automatic reviews.  He was not able to apply directly himself due to his incapacitated status.  In all four cases, the Court found a violation of article 5(4).

The position here is different to that in the ECHR cases.  The DoLS makes it very clear that the relevant person is automatically eligible to make a request for a review (para. 102((3) (a)), and the main MCA states in s.50 (1) (a) that an individual who lacks capacity does not require permission to make an application to the Court of Protection.  However, why there are no barriers in law, it must be considered whether, in practice and in reality, article 5(4) is met by the DoLS.  People who are subject to a DoLS authorisation may not be able to make an application themselves – they may have profound intellectual disabilities or advanced dementia, or another mental impairment which makes it difficult for them to communicate with others, and to formulate their objections.  In these instances, how can they ensure they have effective review of their deprivation of liberty?  Who is to take the complaint?

An individual subject to a DoLS authorisation is not alone; they have a representative, appointed as part of the authorisation process.  The individual themselves may also be supported by an IMCA, and s. 39D(8) requires that an IMCA must take steps to help the individual apply to court or for review by the supervisory body ‘if it appears to the advocate that P or R wishes to exercise that right’.  However, there are several problems with both of these mechanisms.  Firstly, the representative may well agree with the managing authority and the supervisory body as to the best interests of the individual.  Certainly, figures from the Department of Health suggest that just under a third of authorisations were reviewed last year, and only 3.3% of these were brought by RPRs.  Secondly, the IMCA support may only happen if an IMCA is appointed in the first place; s.39D(5) does require the appointment of an IMCA if the supervisory body does not feel that either the individual or their representative would be able to exercise their rights without such support.  On this basis, if it seems that the individual is protesting or objecting, then an IMCA should be appointed to help exercise their right to review or appeal.  However, this does not deal with the issue of those who appear passive, or are not objecting.  Either way, only 0.7% of the reviews were instigated by the individual themselves.

People who are subject to a DoLS authorisation may well be in the best place for them, but as the facts of Cheshire West show, the restrictions on their freedom of movement may be extreme, and should be subject to external scrutiny on a regular basis.  It is hard to understand why there is an automatic review mechanism for people with mental disorders, who may retain capacity to make an appeal themselves, and no parallel mechanism under DoLS, for people who arguably may be more vulnerable and in need of automatic review.  Even if they do not object, it is hard to understand why these restrictions should not be reviewed automatically, in the same way as they are for people detained under the MHA.

The justification, perhaps, for DoLS as opposed to the MHA is that someone deprived of their liberty under DoLS is not going to ‘get better’; if a deprivation of liberty is necessary at one time, it will always be necessary, as nothing is going to change.  Yet, the Code of Practice is very clear that authorisations should be issued for as short a time as possible, and everything should be done to reduce the restrictions to a level below the threshold of deprivation.

The recent ECtHR judgments should give us pause for thought.  While there are no direct legal bars on review of a deprivation of liberty by a court, there are a variety of practical restrictions which may make the exercise of that right difficult.  An automatic review process through the Court of Protection would be unwieldy and impractical, but we should consider an independent tribunal process, like that under the MHA.  It does not seem consistent for one form of deprivation of liberty to have this mechanism and not another.


Amanda Keeling

PhD Student, School of Law, University of Nottingham


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Mental health nurses to join police on the beat

This week’s IMH Blog Post is from GOV.UK and was originally posted on 27 June 2013.  

Mental health nurses to join police on the beat

Mental health nurses will patrol with police officers in four new pilot sites to improve responses to mental health emergencies, Care and Support Minister Norman Lamb announced today at the Black Mental Health UK Conference.

The street triage scheme sees mental health nurses accompany officers to incidents where police believe people need immediate mental health support.

The innovative scheme, funded by the Department of Health and backed by the Home Office, helps people with mental health problems who are sometimes detained in the wrong environment.

Today the first four areas have been chosen to pilot the mental health scheme, which will start in the summer. The police force areas working with Department of Health are:

  • North Yorkshire
  • Devon and Cornwall
  • Sussex
  • Derbyshire

Two street triage services in Cleveland and Leicestershire have already shown that nurses and police can work together to achieve better results for patients by making sure they receive the treatment they need. This also reduced demands on valuable police time.

Last month, the Home Secretary announced that the Department of Health would be working with the Home Office to pilot ‘street triage’ with the police this year. This is part of a wider Department of Health and Home Office work plan on policing and mental health.

The Department of Health has secured further funding to extend this pilot scheme to more police forces and a number of further areas have already expressed an interest. More announcements are planned in the near future.

Care and Support Minister, Norman Lamb said:

“In some areas the police already do an excellent job in terms of their handling of situations involving people with mental health problems and work well with health colleagues to make sure that mentally ill people in crisis get the care and attention they need, but we need to make that the reality everywhere.

“We are launching these pilots to make sure that people with mental health issues get the right care, at the right time and in the right place.

“We know the barriers often lie at the crossroads between police and health services. That is why we are working with the Home Office and leaders of the police to look at how we can improve services for the very vulnerable people involved.”

This work is part of wider work that the Department of Health and its stakeholders are making to improve crisis care for mental health patients. Other work includes:

  • an urgent assessment of the availability of places of safety across England by mid-July
  • an inspection of the quality of all places of safety by the Care Quality Commission
  • reviewing the provision of ambulance services for mental health emergencies later this year
  • a concordat in place this Autumn to improve the treatment of people with a mental health crisis

Minister of State for Policing and Criminal, Justice Rt Hon Damian Green said:

“All too often the police encounter vulnerable people with mental health issues who need immediate care or longer term support which only the health service can provide.

“As the Home Secretary announced recently, the rollout of these street triage pilots are a step forward in our on-going work with the Department of Health and police to ensure people with mental health issues are dealt with by the right emergency service.”

Background Information

  1. Places of safety should typically be hospitals, residential care homes or the home of a relative or friend of the person. A police station should only be used as a “place of safety” as a last resort.
  2. For more information please contact the Department of Health press office on 0207 210 5317.


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Falling Into the Fire: A Psychiatrist’s Encounters with the Mind in Crisis

A new book which may be of interest to IMH members: 

Falling Into the Fire is psychiatrist Christine Montross’s thoughtful
investigation of the gripping patient encounters that have challenged and
deepened her practice. The majority of the patients Montross treats in Falling
Into the Fire are seen in the locked inpatient wards of a psychiatric hospital;
all are in moments of profound crisis. We meet a young woman who habitually
commits self-injury, having ingested light bulbs, a box of nails, and a steak
knife, among other objects. Her repeated visits to the hospital incite the
frustration of the staff, leading Montross to examine how emotion can interfere
with proper care. A recent college graduate, dressed in a tunic and declaring
that love emanates from everything around him, is brought to the ER by his
concerned girlfriend. Is it ecstasy or psychosis? What legal ability do doctors
have to hospitalize-and sometimes medicate-a patient against his will? A new
mother is admitted with incessant visions of harming her child. Is she psychotic
and a danger or does she suffer from obsessive thoughts? Her course of
treatment-and her child’s future-depends upon whether she receives the correct
diagnosis. Each case study presents its own line of inquiry, leading  Montross to seek relevant psychiatric knowledge from diverse sources. A doctor of uncommon curiosity and compassion, Montross discovers lessons in medieval dancing plagues, in leading forensic and neurological research, and in moments from her own life. Beautifully written, deeply felt, Falling Into the Fire brings us inside the doctor’s mind, illuminating the grave human costs of mental illness as well as the challenges of diagnosis and treatment. Throughout, Montross confronts the larger question of psychiatry: What is to be done when a patient’s experiences cannot be accounted for, or helped, by what contemporary medicine knows about the brain? When all else fails, Montross finds, what remains is the capacity to abide, to sit with the desperate in their darkest
moments. At once rigorous and meditative, Falling Into the Fire is an intimate
portrait of psychiatry, allowing the reader to witness the humanity of the
practice and the enduring mysteries of the mind.

An early review of the book from the Los Angeles Times can be read here:,0,2386923.story

The book can be ordered via:

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