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Her Honour Nasreen Pearce
Retired Circuit Judge
District Judge Sue Jackson
Nominated Judge of the Court of Protection
Although detention and restraint of those who lack capacity (P) may be considered necessary in their best interests in some circumstances, by those who have the obligation of providing care, it may nevertheless infringe P's rights under Art 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention) unless it is carried out in accordance with law (a deprivation of P's liberty).
The Mental Capacity Act 2005 (MCA 2005) provides the legal process which must be followed to render this lawful but fails to define what amounts to deprivation of liberty (DOL). Decision makers, be they carers or those who advise the providers of care or those who protect P's rights, have to routinely agonise over when it could be said that the fine line between acts which may be considered legitimate restraint and those which amount to DOL has been crossed. This involves a trail through case -law for guidance.
This article sets out P's rights which are protected under Art 5 of the European Convention and extracts guidance on the meaning of DOL through an analysis of leading case-law before and since the MCA 2005 came into force. It also sets out the guidance contained in the DOLS Code of Practice and guides the reader to the relevant factors which distinguish lawful restraint from DOL and the fine line and grey areas between these two concepts.
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