Right to Freedom & Safety

An opportunity to contribute to a change in the law!68525046 - silhouette bird go out of cage in freedom concept in sunset

The Joint Committee [of the House Lords and the House of Commons] on Human Rights  (“JCHR”) yesterday issued a Call for Evidence for its inquiry, ‘Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards‘.

This is a rare opportunity for patients, carers and families affected  by The Mental Capacity Act 2005 and associated Deprivation of Liberty Safeguards (“DoLS”) to make their views known to a highly influential Parliamentary Committee. This probably includes many readers of and contributors to this blog and that of Dr Sara Ryan.

These are extracts from the Committee’s announcement:

“The right to personal liberty is one of the most fundamental human rights, and can be traced back to Magna Carta. Article 5 ECHR provides that everyone has the right to be free to come and go. No one may be deprived of liberty without a legitimate reason. If a person is deprived of liberty, certain safeguards must be provided; these include entitlement to take proceedings by which the lawfulness of the detention is decided speedily by a court, and the person’s release if the detention is not lawful.

“The Deprivation of Liberty Safeguards (DoLS) scheme, set out in the Mental Capacity Act 2005 (MCA), safeguards against arbitrary detention for people who are deemed to lack capacity to consent to their care or treatment. The DoLS aim to ensure that people are only deprived of their liberty when it is in their best interests and there is no other less restrictive way to provide necessary care and treatment.

“In 2014 the Supreme Court decision in the case of Cheshire West significantly widened the definition of a deprivation of liberty. The judgment has resulted in a tenfold increase in the number of DoLS applications being made in recent years. Local Authorities have struggled to cope with the resource implications of the judgment and a very large backlog of cases has built up.

“Immediately prior to the Cheshire West judgment, the House of Lords Select Committee on the Mental Capacity Act had concluded ‘[…] far from [DoLS] being used to protect individuals and their rights, they are sometimes used to oppress individuals, and to force upon them decisions made by others without reference to the wishes and feelings of the person concerned.’ They have also been widely criticised for being overly complex and bureaucratic.”

“In response to this situation the Government asked the Law Commission to look at ways to reform the legislation in this area. In March 2017, the Commission published its final report Mental Capacity and Deprivation of Liberty which called for DoLS to be replaced ‘as a matter of pressing urgency’ with a new scheme called the Liberty Protection Safeguards (LPS). On 30th October 2017 in a Written Ministerial Statement, the Health Minister issued an interim response to the Law Commission’s report, undertaking to engage in a further period of consultation and promising a final response in spring 2018. [Read the interim response here→]

“The Committee is issuing an open call for evidence from interested parties and would welcome written submissions by 2nd March on:

  • Whether the Law Commission’s proposals for Liberty Protection Safeguards strike the correct balance between adequate protection for human rights with the need for a scheme which is less bureaucratic and onerous than the Deprivation of Liberty Safeguards;
  • Whether the Government should proceed to implement the proposals for Liberty Protection Safeguards as a matter of urgency; and
  • Whether a definition of deprivation of liberty for care and treatment should be debated by Parliament and set out in statute.

Submissions should be no more than 1,500 words.”

Read more on submitting evidence to Select Committees here→. The JCHR’s prefers evidence submitted via its web portal here→.

If you do not have time to prepare a written submission, you can email any observations to CRASH via the ‘Contact‘ page. If appropriate, we will consider using it in our evidence.

CRASH has submitted evidence to the JCHR previously – on a different subject. The Committee published it and used sections verbatim in it’s Final Report. It was  a productive exercise.

CRASH’s tips on submitting evidence to Committee Inquiries

  1. The JHCR is not able to investigate individual cases but such cases can be used to illustrate specific points.
  2. Do not comment on matters currently before a court of law, if Court proceedings are imminent or if a police investigation is in progress without first seeking advice from the Clerks to the Committee: the JCHR may publish evidence anonymously in these circumstances – although you still have to disclose your name to the JCHR. 
  3. Do not publish your evidence elsewhere before the Committee publishes it. Committees tend not to consider pre-published reports.
  4. Evidence published elsewhere under the authority of the Committee only attracts Parliamentary Privilege if published after Parliament publishes it.
  5. If you publicise or publish your evidence yourself must indicate that it was prepared for the Committee.
  6. BE BRIEF (very difficult for CRASH!): include a bullet point Executive Summary on page 1 of your submission.
  7. Read carefully Parliament’s Guidelines for submitting written evidence to Committees here→ and cross-check them with instructions for the individual Inquiry – for example, the number of words allowed often varies.
  8. CRASH has always found Clerks to Committees very helpful, especially to ‘newbies’: contact them by email or telephone.

CRASH’s recommendations on attending Committee Hearings

  1. Committee Hearings are held on the Parliamentary Estate and mostly in public.
  2. Although it is rare for members of the public to be asked to give verbal evidence, it can be fruitful to attend at least one Hearing.
  3. Witnesses are named and Hearing dates announced in advance – pick a day when a person of interest to you is giving evidence. There can be opportunities to talk to  witnesses and Committee Members in the corridor before and after Hearings or during a break in proceedings: CRASH found this productive. 
  4. It is helpful if you can recognise Committee Members: information here→. Knowing names is invaluable. If your MP sits on the Committee, so much the better.
  5. Whether or not your MP is a Committee Member, inform them you are submitting evidence and, if you attend a Hearing, send advanced notice¹. They may agree to meet you.
  6. If visiting Parliament arrive at least 60 minutes early to allow time to pass through airport-type security and find the Committee Room. Queues can be especially long on Wednesdays when Prime Minister’s Questions are held.

Further Information:

Website: http://www.parliament.uk/jchr     Email: jchr@parliament.uk

Watch committees and parliamentary debates online: http://www.parliamentlive.tv

¹ To obtain MPs’ contact details in Westminster, put their given name, surname and “office” into the search engine on Parliament’s web site