A Triumph for Social Justice
‘The most far-reaching human rights case heard in the UK for a decade’ (Burrows, 2014)
The Fog Clears:
This judgment reunites us with our Bournewood roots, established by the European Court. Namely, that the ‘acid test’ in determining a deprivation of liberty, is whether the person concerned is under continuous supervision and control and is not free to leave.
Many are concerned that the aftermath of this judgment will effectively capsize existing DoLS and Court of Protection infrastructures. Whilst I agree that this presents an enormous challenge. I cannot accept that it is proportionate to subject many thousands of adults at risk, to the unscrutinised use of restrictive practice, in a manner that resembles this judgment’s ‘acid test’. Surely, equitable access to a right of review by an independent body ‘should be effectively afforded to all those who properly require it’ (Ruck Keene, 2014). Rather than punish adults at risk by reducing access to vital protection; why not lobby the Government for meaningful and effective investment in safeguarding human rights in this country (perhaps some re-distribution of the £4.26 billion allocated to the HS2 project, (BBC News, 2014).
Few involved in the complex, heart-wrenching, labyrinthine process of assessing deprivation of liberty, would refute the complexity and inaccessibility of the scheme. Most acknowledge the need to protect individuals’ right to liberty and security of person, in accordance with Article 5 of the European Convention on Human Rights (ECHR). The sticking point it seems, is how best to achieve this.
For me, any extension of the sound, person- centred principles of the MCA 2005 will suffice, provided it achieves what has to be the founding safeguard:
‘…that those whom we commit to the complete and effective control of others, enjoy safeguards to ensure it is exercised in a legitimate and proportionate fashion’ (Series, 2013).
Whilst we await a response from Government as to the House of Lords Select Committee recommendations concerning MCA/DoLS. We continue to rely upon case law as guidance for practice. Gladly, now at least, we have case law that is itself fit for purpose.
Dawn Whitaker was the Independent Social
Worker in the Cheshire West case, and is a
Lecturer in Social Work in the Department of Sociology at Lancaster University.