Objection, purpose and normality: three ways in which the courts have inhibited safeguarding

Abstract

Purpose

This paper's aim is to consider three ways in which, recently, the English courts have sought to define deprivation of liberty (and, maybe, limit the effect of safeguards against it).

Design/methodology/approach

Two significant decisions of the Court of Appeal were considered, together with one each of the House of Lords and the European Court of Human Rights. Consideration was also given to the context of those decisions, as disclosed in official policy documents and at least one piece of academic research.

Findings

The decisions in question have limited the circumstances that will amount to deprivation of liberty and thereby reduced the scope of the Deprivation of Liberty Safeguards (DoLS). The English courts' understanding of false imprisonment is diverging from their understanding of deprivation of liberty. The English courts differ from the European Court of Human Rights in their understanding of the relevance of “purpose” to the question of deprivation of liberty. If the former are correct, the DoLS – and maybe even the Mental Health Act – are redundant.

Originality/value

This is the first time these cases, and this subject, have been analysed in this way; and that these findings have been published together.

Citation

Hewitt, D. (2012), "Objection, purpose and normality: three ways in which the courts have inhibited safeguarding", The Journal of Adult Protection, Vol. 14 No. 6, pp. 280-286. https://doi.org/10.1108/14668201211286057