In December 1997 the Appeal Court ruled that HL (L) was being deprived of his liberty. In July 1998 Lord Steyn in his judgment at the House of Lords stated “in my view ‘L’ was detained because the health care professionals intentionally assumed control over him to such a degree as to amount to complete deprivation of his liberty’” and “‘The only comfort is that counsel for the Secretary of State has assured the House that reform of the law is under active consideration.’”
Six years on and with no ‘reform of the law’ in sight the ECHR in HL ruled: “Accordingly, the concrete situation was that the applicant was under continuous supervision and control and was not free to leave. Any suggestion to the contrary was, in the Court's view, fairly described by Lord Steyn as ‘stretching credulity to breaking point’ and as a ‘fairy tale’.”
Ten years further on and after 5 months deliberation the Supreme Court says of the acid test for deprivation of liberty, analysing the ‘concrete situation’ that “the answer lies….in the jurisprudence which started under HL v UK ‘that the person concerned was under continuous supervision and control and was not free to leave.’”
The HoL Report on MCA particularly in relation to DoLS contains nothing that we haven’t said to DoH over many years. The apparent unwillingness of managing authorities and local authorities to engage must not continue. Information and support for families/carers also needs to significantly improve. Whether safeguards remain as they are or are ‘simplified’ there needs to be a penalty for non-compliance with the law. The proliferation of supported living arrangements many of which are nothing more than unregistered care homes requires that their vulnerable occupants are protected under the same safeguards.
Seventeen years on since ‘Bournewood’ and the dithering looks likely to continue as professionals look for more ‘clarification’ rather than get on and make things work.
Mr and Mrs E – the carers of Mr L