Last week (on 7 July) the Law Commission unveiled a consultation on the law of mental capacity and deprivation of liberty.
The consultation paper published by the Law Commission considers how the law should regulate deprivations of liberty involving people who lack capacity to consent to their care and treatment arrangements. It opens by quoting the indomitable Lady Hale on the nature of human rights accruing to all, regardless of ability or disability, and concludes that “the inevitable corollary is that what it means to be deprived of liberty must be the same for everyone, whether or not a person is disabled.”
Yet as the consultation highlights, it is not just deprivation of liberty that may implicate human rights in the context of the law of mental capacity. We have recently come across the case of Thomas Middleton, an 88-year-old man in Derby, who recently sought crowdfunding on CrowdJustice. His wife, to whom he has been married for 67 years, and who has dementia and Parkinson’s, is in a care home that has restricted his access to her and criticised his interactions with her, from kissing her too often to moving her to a different position in her chair. He is relying on article 8 of the Human Rights Act, the right to a private and family life, to challenge the decision of the care home. The Law Commission’s consultation paper observes that many article 8 issues – such as restrictions on a person’s contact with friends and family – will be of greater significance to the individual and their family than the technical question of deprivation of liberty.
These issues will affect more of us as we, and our families and loved ones, age. Dementia now affects 700,000 Brits. But we are getting older and living longer, and in the course of a generation it is expected to affect twice as many of us. The boundaries of the law are critical in determining how the law will treat us and our loved ones as we age.
The response date for the Law Commission’s consultation is 2 November 2015.
For more information on human rights in dementia care, dementiarights.org sets out a great and simple table highlighting examples of human rights in health and social care.
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