Deprivation of Liberty Safeguards

HSSD presented its proposals for a new Capacity Law at the last States meeting. Included within this were recommendations for deprivation of liberty safeguards (DOLS) to protect the most vulnerable in society. It was subject to an amendment to delay until the UK has decided what it was going to do to amend its legislation. The amendment was defeated and then there were calls from the proposer of the amendment to take it out completely. I set out below my speeches urging members not to support the amendment and then in main debate, to support the policy letter in full. The policy letter ended up being passed fully and without amendment.

Speech – main debate

Sir, this isn’t a health issue at all, although it’s more applicable in health and care settings. It’s a human rights issue. It’s about how we protect the liberty and dignity of those citizens among us who are most vulnerable to having their freedom of choice taken away.

I think HM Procureur has made it very clear that this policy letter has been written to be human rights compliant. Just taking out the DOLS will just lead a coach and horses through it. It is the flip side of the same coin – the capacity law results in giving powers over someone without capacity. DOLS gives that person without capacity protection. It’s as simple as that. That is why it is required. That is why, if we don’t include DOLS, the Privy Council are quite likely to throw it back. That is the risk.

Now to cost. Comments made yesterday by Deputy Dave Jones just exemplify why mental health services have been the Cinderella of our services for so long. So much easier to spend money on drugs and operations that you can see.

Of course, we would like more investment in community nurses and social workers. It is needed, but it must not be a binary choice between one or the other, because that’s simply not he reality.

This is, as Deputy Perrot has said, a good news story, and I urge members to support this policy letter in full.

Speech – amendment

Sir, Deputy Hadley is nothing if not consistent. Here he is laying yet another unnecessary amendment. This policy letter is the result of extensive consultation with those professional concerned. Deputy Hadley references a meeting with 2 psychogeriatricians and I think I need to make it clear what actually happened at that meeting.

At the¬†Board meeting where this policy letter was discussed, Deputy Hadley said that a couple of psychogeriatricians did not like it the DOLS and therefore he couldn’t support it. Following that meeting, I agreed to meet with them and Deputy Hadley, together with the States’ consultant psychiatrist of adult mental health, head of older adults services, director of communities and the law officer involved.

At that meeting it was clear that the psychogeriatricians has been led to believe that this policy letter was actually the law. They were advised this was not the case. It was also clear that there was a lack of awareness as to the legislative process here and that we would have little ability to develop a law different from the UK. The final concern was with regard to the term Deprivation of Liberty. It is a phrase that is tainted due to the system that has been put in practice in the UK.

It was explained that the term comes from Article 5 of the EU Convention of Human Rights, which Guernsey has incorporated into its law through the Human Rights (Bailiwick of Guernsey) Law, 2000. Article 5 states that;

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law”. Therefore, in order for our law to be compliant with the convention we have to use the same phraseology.

However, that does not mean this has to be used as the standard term, merely that it is made clear that wahtever term is used it has to be referenced to the term Deprivation of Liberty. I believe the proposals suggested by the Law Commission when they went to consultation included changing the term in the UK to ‘protective care’.

It was made clear at that meeting that no-one wanted to follow the UK. We wanted a balanced and proportionate law for Guernsey. In fact this is an opportunity for Guernsey to be ahead of the UK and set the benchmark, not follow. AND, AND, we could do that and would do that through working with the professional to develop the legislation, regulations and subsequent codes of practice. There is nothing in this policy letter that says this will be anything like the UK.

At the end of that meeting the professionals, just note, the 2 profesioanls with concerns, were assured. Deputy Hadley said that he was, if they were. Great! It was a good meeting. Then, 2 days later, we heard Deputy Hadley wasn’t happy and couldn’t support the policy letter – again!

Sir, the problem here is, I’m afraid with Deputy Hadley, not this policy letter. Sir, Deputy Hadley is alone on this and I urge all members to reject this amendment.



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