The horrific treatment of Winterbourne View residents brought the vulnerability of those in care into sharp focus. One instance of abuse at a care home or hospital is shocking but it wasn’t a lone exception and the recent spate of revelations is a scandal.
Mental capacity law has the potential to touch us all at some point in our lives. It affects everyone from those born with learning disabilities, to the elderly and those temporarily struck down by injury or illness.
In 1997 a dispute arose about an autistic man’s detention in hospital. The case lifted the lid on a legal system where hospital staff assumed total control of his freedom, leaving him entirely exposed to any professional misjudgements or lapses.
The European Court ruled his detention was arbitrary and breached his right to liberty; Deprivation of Liberty Safeguards were belatedly brought forward to plug this gap. And they sounded like a good thing: they apply to those in hospitals or care homes with a mental disorder who lack capacity to give informed consent to their care and where the hospital or care home manager considers it in their best interests they be detained.
Though designed to strengthen rights protections, they have roundly failed. They don’t reflect our Human Rights Act, and Liberty has been calling for their complete overhaul. Authorities are supposed to review deprivations of liberty, and individuals are technically able to apply for review themselves. But can you imagine how difficult it is to make a successful application for yourself while trapped in a hospital against your will, suffering from mental illness? Individuals’ autonomy isn’t put front and centre of authorities’ decision-making. What does this mean? Huge numbers of people detained without legal authorisation or the proper ability to challenge this detention, trapped in a web of complexity and bureaucracy.
Winterbourne View version 2.0 is something we mustn’t ever allow and today the Committee’s message is clear: current law and practice has failed. Those lacking mental capacity are let down by the very legislation designed to protect them. The Lords Committee have called for independent oversight and proper training and – yes – these are vital to make rights realisable. But they have also called for real legal reform. Let’s hope the Government listens – and puts human rights at the heart of the new framework.
Shami Chakrabarti is director of LibertyReuse content