I am now coming towards the end of a somewhat arduous sometimes interesting, but mostly frustrating masters dissertation on the deprivation of liberty safeguards. I'm sat here today literally pulling my hair out. Yes its coming out in handfuls! How did I get to this point?
Well it started with Bournewood and the infamous HL v United Kingdom case and its all gone down hill from there.
I work in a healthcare setting and the buzz word is 'best interests'. Quite clearly some healthcare professionals views on what best is and what the person living in the healthcare setting or their family's views on it can be worlds apart. We saw that in the Neary case. It took Steven's Dad a year to get his son home because of the paternalistic views of the professionals involved in his care. However well meaning healthcare professionals are that exert control over peoples lives that lack capacity, sometimes they just don't get it. The Mental Capacity Act was supposed to put the person in the centre of the decision, and they are to be enabled to make a decision. Whilst I'm sure this does happen in most cases it is the best interest decision that lets the Act down. The best interest decision in some instances is just a paper exercise. Whilst best interests should take account of a whole range of factors including the past and present wishes of the person it can be very paternalistic. We are a risk adverse society and in healthcare it seems to be getting worse. Of course the pro's and cons of any decision must be discussed for a best interest assessment, but all risk cannot be eliminated. We cannot keep people in a bubble, sometimes things have to be tried that may contain an element of risk but if it is for the happiness of the person surely this is the main objective. Rant over , I digress.
However hard I've tried (and believe me I've looked at a lot of material) I can't find anything really positive to say in my dissertation about the Deprivation of Liberty Safeguards. I'm nearly onto my conclusion where I have to give a balanced view. That is why my hair is coming out! The more I read about it the more I think to myself, why or why did the Government do it? They could have amended the Mental Health Act, of course there are pros and cons about the MHA but it definitely has more safeguards.
I keep looking at what is missing from the inappropriately named deprivation of liberty safeguards and I keep thinking, well its the safeguard bit of it really.
I'm sure there are positive stories where DoLS have helped safeguard a person that may have left hospital or residential care into an abusive situation if it wasn't for an order preventing them from doing so. Unfortunately these are not the stories that we read about.
As DoLS have taken up a full year of my life and caused me a fair amount of stress balancing my work and family with writing a dissertation it would be nice to see a light at the end of the tunnel.
I don't know maybe I've got too involved but I keep thinking of the people that are under no legal safeguard with no family, that may be deprived of their liberty. How are managing authorities to know when they are depriving someone of liberty if the bar is constantly being raised in regards to defining when a deprivation of liberty may be occurring? Now it seems, following the Cheshire case one can place any amount of restrictions upon someone as long as the same amount of restrictions would be needed for someone else in the same position living in their own home or if the restrictions were in the persons best interests.
I think of the family of someone that may be going through a situation similar to Steven but are not as strong as Mark and don't know what to do about it. Oh course we are less likely to hear about unlawful deprivation if there is no family member or carer willing to challenge it.
I do take the view that legal safeguards are needed for people lacking capacity to consent to their care and treatment I just don't believe the Government chose the right vehicle.
I suppose I wanted the Government to say they were going to do something to amend DoLS before I got to the end of my project. Alas there doesn't look like there will be a happy ending.
Oh well, my very first blog and so much ranting. Where will it all end?