Richard White, Group Operations Director, Next Step Independence
DoLS, as the Deprivation of Liberty safeguards came to be known, came into force on 1st April 2009 to provide legal protection to adults who have a degree of restriction placed on their liberty, contrary to Article 5 of the European Convention on Human Rights, but lack capacity to make an informed decision about it. The infamous Cheshire West ruling in 2014, and Lady Hale’s statement that a gilded cage is still a cage, sticks firmly in one’s consciousness, and continues to remind us that any removal of liberty needs to be legal, considered and the least restrictive option.
Article 5 rights provide that everyone has the right to liberty and security of person, so the legislation round depriving it is always going to need to be pretty robust. I’m not a lawyer and I find reading the Bills and Acts underpinning DoLS incredibly complex, but I’m pleased that in ‘Europe’ we care so passionately that the rights of those with a quieter voice are heard and protected. From this privileged position it is easy to view many countries where the same value isn’t extended to Human Rights, and observe the suppressive, prejudicial, and oppressive behaviours that ensue…
In 2018 the Government published a Mental Capacity (Amendment) bill, which passed into law in May 2019 and replaces DoLS with a scheme known as the Liberty Protection Safeguards. The LPS start for young people at 16 years old, rather than at 18 as DoLS did, but otherwise much seems to remain the same. The new LPS does not define what a deprivation of liberty is, so the Cheshire West definition endures. The Cheshire West ruling reiterated that if the person is confined, there is no consent to that confinement and that the State is responsible for the confinement, then that person needs to have their deprivation legally authorised.
These questions are just as relevant to determining whether children and young people are deprived of their liberty, as they as are to adults. Article 5 introduces the idea that children should be able to exercise their rights as they acquire the agency to do so. It says that States should take this right into account when establishing minimum ages on particular issues. As a parent I remember debating with my wife how late it was acceptable to allow our children to stay up, and what time they needed to go to bed: as they got older bedtime got later, which I think is what the authors of article 5 envisaged, and which also aligns with the thinking behind the new LPS. This acquired agency through age, and the least restrictive concept is something that we as corporate parents need to be constantly cognisant of as we steer our children into an independent life, post care.
At Next Step Independence, our whole ethos revolves round developing independence, removing restrictions, and promoting wise decision making. We work with the young people to make sure they have the correct control over their destiny and understand the principal of responsibility as well as rights. Sometimes a young person needs to be subject to a deprivation to their liberty, and in every circumstance, it is a massive decision to make, and is rightly treated as such.
Luckily as providers for the vast majority of cases we only have to comply with the court ruling and nothing further, but as parents, corporate parents and citizens it goes far further. Liberty is such a delicate and valuable ‘thing’ and needs to be treasured and guarded. We are all guardians of ‘the treasure of liberty’, and it is beholden on us to make sure that no one steals it.