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Objection, purpose and normality: three ways in which the courts have inhibited safeguarding

Objection, purpose and normality: three ways in which the courts have inhibited safeguarding Purpose – This paper's aim is to consider three ways in which, recently, the English courts have sought to define deprivation of liberty (and, maybe, limit the effect of safeguards against it). Design/methodology/approach – Two significant decisions of the Court of Appeal were considered, together with one each of the House of Lords and the European Court of Human Rights. Consideration was also given to the context of those decisions, as disclosed in official policy documents and at least one piece of academic research. Findings – The decisions in question have limited the circumstances that will amount to deprivation of liberty and thereby reduced the scope of the Deprivation of Liberty Safeguards (DoLS). The English courts' understanding of false imprisonment is diverging from their understanding of deprivation of liberty. The English courts differ from the European Court of Human Rights in their understanding of the relevance of “purpose” to the question of deprivation of liberty. If the former are correct, the DoLS – and maybe even the Mental Health Act – are redundant. Originality/value – This is the first time these cases, and this subject, have been analysed in this way; and that these findings have been published together. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The Journal of Adult Protection Emerald Publishing

Objection, purpose and normality: three ways in which the courts have inhibited safeguarding

David Hewitt
The Journal of Adult Protection , Volume 14 (6): 7 – Nov 30, 2012
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Publisher
Emerald Publishing
Copyright
Copyright © 2012 Emerald Group Publishing Limited. All rights reserved.
ISSN
1466-8203
DOI
10.1108/14668201211286057
Publisher site
See Article on Publisher Site

Abstract

Purpose – This paper's aim is to consider three ways in which, recently, the English courts have sought to define deprivation of liberty (and, maybe, limit the effect of safeguards against it). Design/methodology/approach – Two significant decisions of the Court of Appeal were considered, together with one each of the House of Lords and the European Court of Human Rights. Consideration was also given to the context of those decisions, as disclosed in official policy documents and at least one piece of academic research. Findings – The decisions in question have limited the circumstances that will amount to deprivation of liberty and thereby reduced the scope of the Deprivation of Liberty Safeguards (DoLS). The English courts' understanding of false imprisonment is diverging from their understanding of deprivation of liberty. The English courts differ from the European Court of Human Rights in their understanding of the relevance of “purpose” to the question of deprivation of liberty. If the former are correct, the DoLS – and maybe even the Mental Health Act – are redundant. Originality/value – This is the first time these cases, and this subject, have been analysed in this way; and that these findings have been published together.

Journal

The Journal of Adult Protection – Emerald Publishing

Published: Nov 30, 2012

Keywords: Deprivation of liberty; Objection; Purpose; Normality; Law courts; United Kingdom; Court of Appeal; Mental illness

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