The Neary case and Deprivation of Liberty

By 14th June 2011Newspaper Articles

Last week Mark Neary won his case against Hillingdon Council for the unlawful detention of his son Steven who is autistic. Steven was taken into a care facility temporarily but this turned into a permanent arrangement which caused him and his father (his carer) distress.

Cases involving Deprivation of Liberty Safeguards (DOLS) (introduced in 2009 in response to a not dissimilar case to that of the Neary’s : the Bournewood case which went to the European Court of Human Rights in 2005) are of interest to me as the picture since 2009 has been rather confused in my view. It is often the way when new laws are introduced that they take time to bed down as the professionals discover exactly how the new rules are going to work in practice.  One of the cases I recall reading some time ago involved the length of time a person had been restrained in a car taking them to a residential home. The Court decided that it was too long a car journey to justify the restraint. I would imagine it would be quite difficult for social workers to assess what constitutes a reasonable length of car journey as opposed to an unreasonably long one!

DOLS are relevant to people with dementia as they are frequently taken into care whilst expressing their firm desire to remain at home. These people were falling into a legal ‘gap’ until DOLS were established.  So now we have a set of procedures to which professionals must adhere and states that they must abide by the ‘best interests’ principle i.e. what is in the best interests of the person who lacks capacity to make a decision about their place of care? As Mark Neary asserted after the ruling  ‘I always believed that being at home was in Steven’s best interests’.  Legal professionals also took the opportunity to mention their concerns that DOLS are not being properly followed across the country. Luckily Steven Neary’s father was prepared to go all the way to prove his point but often people who are caring for someone with dementia are too worn down to ‘take on the system’.

For more information about DOLS please use this link [includes a link to the guidance in Welsh] or email me if you think someone you know has been placed in care without a careful assessment of their needs and best interests :

http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_085476