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When thinking about deprivation of liberty, we must look to Article 5 in the European Convention on Human Rights: the right to liberty and security. The first question is why would we want to deprive people with dementia of their liberty? The circumstances of providing care to a person with dementia may be that they lack capacity to consent to those arrangements. The aim of Article 5 is to ensure that no one should be deprived of their liberty in an arbitrary fashion and that it must be in accordance with a procedure prescribed by law. There must also be the right to challenge the legality of the detention by an independent court or tribunal. The legal considerations for practitioners are, therefore, is this person being deprived of his or her liberty and then, how should it be authorised? In authorising a deprivation of liberty, there may be a choice of legal schemes which could apply, and we will discuss the interface between the Deprivation of liberty/Liberty Protection Safeguards and the Mental Health Act. We will then discuss the amendments the Liberty Protection Safeguards will introduce. In the realm of dementia care, this is a highly significant area.
Most older people do not need any special legal support or protection. They are formed of diverse groups and clearly not all are vulnerable to abuses of one form or another. However, some older people are evidently more at risk than others because of ill-health, disability or dementia, or because of their dependency. They may require protection from physical or mental abuse and misuse of their money or property, and at some stage they may need help with making decisions. They may also require legal protection in respect of the provision of treatment or care, especially if the care arrangements involve them being deprived of their liberty.
Older people, especially those with dementia, may require support from diverse agencies, such as housing and social services, and are the main users of the NHS. Discrimination, victimisation or neglect of older people within the health and social care system raise important issues under human rights law, along with other domestic law or international law obligations. The Acts that are outlined in this chapter are aimed at protecting the basic human rights of people at risk, who share with all of us the right to live our lives as we choose.
Dementia is a topic of enormous medical, legal and ethical importance with considerable human and economic cost. Its importance grows with the change in demographics of the aging population and that people with dementia receive care in a wide range of settings. The legal and ethical problems raised in treating patients with dementia are diverse and complex and are dealt with by many practitioners on a daily basis. This book is a 'how-to' guide to understanding how the law applies to people with dementia, from diagnosis through to end-of-life. It explores the practical problems that people experience, and practitioners face, giving an accurate account of statute, court cases and other inquiries, to give readers an up-to-date account of the law and how it applies in this area. An essential read for clinicians and practitioners that work with patients with dementia, including psychiatrists, primary care physicians, nurses, social workers and advocates.
This chapter discusses the right to liberty and the principle of habeas corpus as protected by the European Convention on Human Rights, other Council of Europe instruments, in EU law and in international instruments. Attention is paid to both the grounds for legitimate detention and to procedural guarantees. In the final section, a short comparison between the different instruments is made.
There is arbitrary detention in every country in the world today. It knows no boundaries and countless people are subjected to arbitrary detention every year. But what is detention and what makes it arbitrary? The Universal Declaration of Human Rights (UDHR) declares that “[n]o one shall be subjected to arbitrary arrest, detention or exile.”1 The International Covenant on Civil and Political Rights (ICCPR), a multilateral treaty, goes further: “[e]veryone has the right to liberty and security of the person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are establishment by law.”2
Deprivation of liberty in non-international armed conflict (NIAC) has suffered no shortage of attention over the last decade with issues surrounding the legal basis and procedural requirements for detention having received the most focused attention. In the course of these debates, international lawyers have looked to rules found in international humanitarian law (IHL) applicable in international armed conflict (IAC) for guidance, and many have argued that as a matter of either law or policy, the procedural aspects of detention in NIAC should be approached in a similar manner. As these discussions have evolved, their focus on grounds and procedure has left another core aspect of IHL relatively unnoticed, along with its potential role in the evolution of NIAC detention law and policy: in addition to providing a procedural framework for detention in armed conflict, IHL also provides material framework for detention that addresses the physical conditions in which detainees are to be held and the way detention and detention facilities are managed. It is often overlooked that in IAC, IHL's accounting for the unique situation of armed conflict does not stop at the right to detain or the grounds and procedures for doing so, but also informs extensive rules on the material aspects of detention. The result is a series of essential and unique protections—often going beyond those found in human rights law—designed to address specific vulnerabilities caused by armed conflict. This article calls attention to this aspect of IHL and asks whether the logic and reasoning that informs the material framework for detention established by the Geneva Conventions should have a role to play in the evolution of law and policy governing the material framework for detention in NIAC.
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