Indermeet Sawhney: Incapacitated patients and rights to liberty

Article 5 (4) of the European Convention on Human Rights (ECHR) underpins everyone’s right to liberty. This fundamental principle dictates the rights of patients under the statute of the UK Mental Health Act and the Mental Capacity Act Deprivation of Liberty. There are safeguards in both pieces of  legislation to ensure patients are able to exercise this fundamental right and challenge their detention. The law is universal and makes no distinction for any patient irrespective of their capacity to appeal. However, if incapacitated patients have no access to the safeguards in place they are in reality meaningless and tokenistic.

The European Court of Human Right judgement in the case of  MH v the United Kingdom,  held that “special safeguards” need to be in place in order to protect the rights of persons who lack capacity to challenge the lawfulness of their detention under the Mental Health Act.

About “MH”

MH was a woman with Down’s Syndrome and severe learning disabilities who lived with her mother and was admitted to hospital under Section 2 of the Mental Health Act. The consultant psychiatrist blocked her mother’s application for MH’s discharge and MH was unable to challenge her own discharge.

The same message was echoed in the judgment in the case of AJ for a local authority legislation. The court flagged up the obligations of the local authorities in facilitating and ensuring patients deprived of their liberty have access to the Court of Protection to secure their rights of appeal under Article 5(4). AJ, an 88 year old woman with dementia, had moved to live with her niece and her husband (“Mr and Mrs C”) to whom she had given lasting powers of attorney in respect of both welfare and financial affairs.

She objected to a decision to move her to a care home on a long-term basis after a respite placement when Mr and Mrs C were on holiday. The council appointed Mr C as AJ’s Relevant Person’s Representative. These are appointed for the duration of a deprivation of liberty safeguard when there is no one in a person’s life who is willing or able to act as his or her representative.

Yet despite AJ’s known opposition to the care home placement, no legal challenge was made to the deprivation of liberty authorisation until more than six months after she was admitted into residential careThe judge held that as Mr C supported her being placed in the care home long term he should not have been appointed relevant person’s representative, and the steps taken by the local authority to ensure that AJ’s challenge to the deprivation of her liberty was brought before the court were inadequate.

Intuitively, one would think that those without capacity are the most vulnerable and hence need greater protection of these rights. It is ironic how this very group of defenceless patients are unable to exercise those very rights. These recent case laws have underscored the same message of enabling and protecting the fundamental rights of liberty for incapacitated patients.  

The decision is significant and ensures equality of access of safeguards for patients who are deemed to be incapacitated. This impacts patients in psychiatric hospitals, general hospitals, and the community, who are under the framework of Mental Health Act or Deprivation of Liberty Safeguards.

As professionals working with the vulnerable group we need to ensure that detention is not a default position for them.

For patients detained under the Mental Health Act the treating consultant psychiatrist needs to assess the capacity of patients to apply to the tribunal at the outset of admission and on renewal of their section.

As a safeguard for this group of  incapacitated patients, referrals need to be made to the tribunals as a routine without exceptions by the hospital managers.

Implementing the ruling in practice has ramifications in terms of resources and costs. 

For the Mental Health Act it implies a huge surge in the number of tribunal hearings and setting up tribunal panels for the already stretched tribunal services and the treating team having to devote time to prepare reports and attend the hearings will be challenge.

For the DOLS it implies local authorities will have to rely on paid advocacy services to undertake take the role of relevant persons representative as opposed to family members.

However, resource implications cannot and should not be a reason to deny the most marginalised in society their basic human rights. It’s no good being just aware of the gap, its high time it is bridged too.

Indermeet Sawhney is a consultant psychiatrist at Hertfordshire Partnership University NHS Foundation Trust.

Competing interests: None declared.