OPINION: David Hewitt

By Ben Schofield on Jan 12, 09 04:24 PM

David Hewitt.jpg

David Hewitt says he is confused.gov

In adult protection, the notion of "vulnerability" is key.

For a decade now, the No secrets guidance has provided a workable definition but the government wants to review both the guidance and the definition, and it no longer seems satisfied that 'vulnerable' does a proper job.

But that is as nothing compared to the confusion that is at the heart of the Deprivation of Liberty Safeguards (DoLS).

From April, the DoLS will give new rights to many incapable residents of hospitals or care homes, such as those with dementia or a learning disability.

The DoLS will ensure both that permission is obtained before such people are deprived of liberty and that they have clear, accessible rights of appeal.

The government says it expects 5,000 DoLS cases in the first year and about a third of that number by year seven. But how can it be so sure?

It has declined to say clearly what it means for someone to be deprived of liberty. This, it seems, is the sole province of judges.

That is all in stark contrast to the new Mental Health Act, which introduced such things as a broad definition of 'mental disorder' and the possibility of compulsion in the community.

While certainly controversial you couldn't accuse the government of confusing its purpose.

They are necessary, we were told, to make it clear to everyone that psychopaths and paedophiles can be detained under the Mental Health Act.

It is regrettable that this clarity was not extended to the DoLS. Hopefully the Court of Protection will get a handle on this most mutable of concepts, but until they do that, practitioners will be working in the dark.

David Hewitt is a partner in Weightmans' Healthcare Team