Deprivation of Liberty in Care Settings and the Department of Health’s Preliminary Draft Heads of Bill

“Research Report: Deprivation of Liberty in Care Settings and the Department of Health’s preliminary draft Heads of Bill”

ABSTRACT

Founded in 1976, for over 40 years the Irish Council for Civil Liberties (ICCL) has worked to defend and strengthen constitutional rights protections and to ensure full implementation of European and other international human rights standards in Ireland.

As part of my LL.M. (International Justice) in Maynooth University I was selected to take part in the Advocacy Placement with the ICCL.  This report serves as part of the required submission for this module and details research I undertook on behalf of the ICCL when drafting a submission to the Department of Health for its Consultation on the Deprivation of Liberty Safeguard Proposals.

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Specifically, it examines how the Department of Health’s preliminary draft Heads of Bill on deprivation of liberty, which are intended to form Part 13 of the Assisted Decision-Making (Capacity) Act 2015, are unfortunately seriously inadequate to ensure sufficient protection from arbitrary detention and mistreatment in the care context or compliance with Ireland’s obligations under numerous human rights instruments; including the Irish Constitution, the European Convention on Human Rights (ECHR), the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and other international treaties.

“Research Report: Deprivation of Liberty in Care Settings and the Department of Health’s preliminary draft Heads of Bill”

Introduction

Ireland has a long history of failing to prevent widespread arbitrary detention and mistreatment of people who depend on others and/or the State[1] particularly in the care setting.[2]  This is concerning as a surge in Irelands aging population[3] has resulted in a rise in demand for formal care services for older people and an increase in the number of long-term residential care institutions.[4] 

While in many instances an older person may make the unbound and informed decision to live in a long-term care setting, evidence indicates such care ‘often take[s] the form of forced institutionalization and compulsory placements.’[5]  Indeed, several observers note the absence of adequate state regulation to prevent violations of older people’s human rights in the care context.[6] 

The UN, when discussing protection of older people’s human rights in the care context, has raised concerns regarding deprivation of liberty.  Concern has also been expressed by both the United Nations (UN) High Commissioner for Human Rights[7] and the UN Independent Expert on the enjoyment of all human rights by older persons[8] as to the involuntary confinement of older people in residential care setting and their lack of access to appropriate care services in their homes and communities.

Unfortunately, the Department of Health’s recent preliminary draft Heads of Bill on deprivation of liberty,[9] intended to form Part 13 of the Assisted Decision-Making (Capacity) Act 2015,[10] are inadequate to ensure protection from arbitrary detention and mistreatment in order to comply with Ireland’s obligations under both the Constitution and numerous human rights instruments.

1. THE STATE IS OBLIGED TO PROTECT FROM ARBITRARY DEPRIVATION OF LIBERTY IN THE CARE CONTEXT

In Ireland, the right to liberty,[11] receives Constitutional protection[12]  Furthermore, the right to liberty and freedom from arbitrary detention is a universally binding rule of customary law[13] enshrined in the ECHR,[14] the International Covenant on Civil and Political Rights (ICCPR),[15] the Charter of Fundamental Rights of the European Union (EU Charter)[16] and the Convention on the Rights of Persons with Disabilities (CRPD).[17]  According to numerous international treaties and customary international law, the prohibition of arbitrary detention may not be deviated from.  Thus, ‘a State can never claim that illegal, unjust, or unpredictable deprivation of liberty is necessary for the protection of a vital interest or proportionate to that end.’[18]

In addition to being obliged to refrain from arbitrarily detaining people, the State has positive obligations to protect people from arbitrary detention by non-State actors and ‘must take reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge.’[19] 

2. THE STATE ON NOTICE OF ARBITRAY DEPRIVATION OF LIBERTY IN A WIDE RANGE OF CARE SETTINGS

Residential Care Bias

Government action regarding provision of care for older people has previously been to incentivise the building of private residential care/congregated settings[20] and make modest funding changes to home care services.[21]  However, studies demonstrate the governments limited and discretionary provision of home care services[22] has resulted in a system where older people are frequently forced to enter long-term residential care unnecessarily and prematurely.[23]

Such bias in favour of residential care frequently results in a de facto deprivation of liberty for many older people.  As the UN Independent Expert on older persons’ human rights states, long-term residential care ‘can often take the form of forced institutionalization and compulsory placements, especially when no other form of care is available for the individual or when relatives are unable or unwilling to provide care.’[24]

Confinement

Research suggests it is common that once in residential care older people are prevented from leaving[25] and that, in addition to physical barriers to exit – such locked doors and key code locks which they do not have the code for,[26] older people may face physiological coercion. [27]

However, such de facto detention may also take the form of legal and/or institutional procedures, such as the requirement of a third party’s permission for an older person to leave,[28] a care plan providing a person only access the community with an escort,[29] or restricted access to finances and/or travel documents.[30]  Sage Support and Advocacy Service reports that ‘it is not uncommon for a third party, often a next of kin, to be asked to sign the contract of care to consent to care although they may have no legal authority to make decisions for that person’.[31] 

Restraint

Physical Restraint

Physical restraint[32] in the care setting frequently results in a deprivation of liberty. While physical restraint may be applied due to ‘concerns for patient safety, particularly for confused patients or those with dementia.. concerns of potential risks to the system, of falls and other untoward incidents’,[33] such restraints are a deprivation of liberty.  Studies find ‘[t]he excessive use of restraints to control residents has been reported as the most frequently-occurring type of physical abuse,’[34] while physical restraint use in long-term residential care varied from 6% in Switzerland to over 31% in Canada.[35]  Such findings support Sage Support and Advocacy Services’ report that ‘staff are more likely to adopt habits of using restraints when perhaps they are not necessary.’[36]

Chemical Restraint

Deprivation of liberty, as defined under international human rights law, does not exclude any particular form of detention or restraint.[37]  Thus it is important to highlight deprivation of liberty need not be caused by a physical force and may be as a result of chemical restraint.[38] 

Internationally it is acknowledged that older people, particularly those with dementia, are frequently[39] chemically restrained in care contexts[40] by the prescribing of mostly unlicensed (or off-label) anti-psychotic medication so as to ‘manage behaviours for the convenience of staff and benefit of other people in congregated settings.’[41]  This is despite substantial evidence that such mediation significantly increases the incidence of stroke and death.[42]

Numerous reports note sedating mediation is consistently administered, without consent, to dementia patients[43] and note a frequent failure on the behalf of prescribing physicians to consider alternatives to anti-psychotic medication or plan for a reduction and cessation of such medication.[44]  Such findings support Sage Support and Advocacy Services belief that ‘a culture has developed in which the use of chemical restraint has become normalised, i.e. it is being used as a first rather than a last resort.’[45]

The use of such restraint, both physical and chemical, results in a frequent deprivation of liberty in the care context.

III. CONCERNS REGARDING THE DRAFT HEADS OF BILL

Lack of Sufficient Safeguards

A deprivation of liberty, including a measure of restraint, will only be lawful if it happens in accordance with procedures established in domestic law which are fair and protect against arbitrariness.[46]

Regarding the first criterion – that a deprivation of liberty must be ‘in accordance with a procedure prescribed by law’ – the ECtHR has held there must be a clear and precise legal basis in domestic law for the deprivation of liberty, over the entire period of detention;[47] and that furthermore, the grounds and conditions for depriving people of their liberty must be clear and defined, and the law must be foreseeable in its application.[48]

Notably, the second criterion – that the law must protect against arbitrariness –has been described as ‘broader than unlawfulness, concerning as it does avoidance of abuse of power and the requirement of compliance with the rule of law broadly defined.’[49] 

It is submitted that the Heads of Bill fail to meet several of these basic standards for the following reasons:

Independent Review

To avoid arbitrariness, the law must provide for independent authorisation and review of deprivation of liberty.  However, the draft Heads of Bill exempt whole categories of people who may be deprived of their liberty in care settings from the legal protection, thereby depriving them of the opportunity of independent authorisation or review of their detention.[50] 

The UN Subcommittee on Prevention of Torture (UN SPT) states ‘involuntary confinement of any person is a form of arbitrary detention unless it is ordered by a competent and independent judicial authority through due process, which must include close and constant review.’[51]  However, ECtHR jurisprudence suggests a deprivation of liberty need not have been Court ordered.[52]  The CPT accepts this, although it notes the Council of Europe Parliamentary Assembly recommended in 1994 that decisions regarding involuntary placement in care settings be taken by a judge.[53]  Regardless of the decision-maker, the CPT states ‘the procedure by which involuntary placement is decided should offer guarantees of independence and impartiality.’[54]

Article 5 ECHR requires everyone deprived of their liberty is informed promptly of the reasons for the action taken.  Those reasons must clarify the legal and factual grounds for the deprivation of liberty, so that the person can apply to a court to challenge the lawfulness of the detention.[55]

Regarding restraint, the CPT requires ‘every single case of resort to means of restraint be authorised by a doctor or, at least, be brought without delay to a doctor’s attention in order to seek approval for the measure.’[56]  The CPT contrasts this to the frequent practice of ‘prior blanket consent [being] given by the doctor, instead of decisions being taken on a case by case (situation by situation) basis.’[57]  The CPT stresses the importance of ‘detailed and accurate recording of instances of restraint’[58] and recommends a specific register be established for this purpose, which individuals should have access to along with their medical file.[59]

The UN SPT states: ‘Restraint, physical or pharmacological, are forms of deprivation of liberty and, subject to all the safeguards and procedures applicable to deprivation of liberty, should be considered only as measures of last resort for safety reasons.  The State must take into account, however, that there is an inherently high potential for the abuse of such restraints and as such these must be applied, if at all, within a strict framework that sets out the criteria and duration of their use, as well as procedures related to supervision, monitoring, review and appeal.  Any restraint must be recorded precisely and be subject to administrative accountability, including through independent complaint mechanism and judicial review.’[60]

Article 9 ICCPR, Article 5 ECHR, and the Irish Constitution guarantee the right of habeas corpus for any person deprived of their liberty.[61]  The HRC states that those deprived of liberty in residential care settings ‘must be assisted in obtaining access to… initial and periodic judicial review of the lawfulness of the detention, and to prevent conditions incompatible with the Covenant’.[62]  The ECHR, likewise, held those deprived of liberty in care institutions are entitled ‘to take proceedings at reasonable intervals before a court to put in issue the “lawfulness” – within the meaning of the Convention – of his detention.[63]  The ECHR has refrained from specifying the form(s) of judicial review which would satisfy Article 5(4) ECHR,[64] but has held persons deprived of their liberty must have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation.[65]

HRC and ECtHR jurisprudence, and other CPT Standards, provide persons deprived of their liberty in the health and social care context also have a right to automatic, regular review of the necessity (and proportionality) of their detention.[66]

The Heads of Bill do not sufficiently provide for independent and impartial authorisation and review of deprivation of liberty as required by the above, and even where the draft legislation appears to provide protection, much is dependent upon the initiative of the person in charge of a care institution who cannot be considered independent.

Independent Advocacy Services

The vulnerabilities people experience when in care, as discussed above,  means there is a need for a statutory right to independent advocacy services in the care context.[67]  However, the law fails to provide a right to independent advocacy services, which are necessary to make any safeguards accessible and by extension effective. 

The CRPD requires independent advocacy support is available where necessary to ensure people with disabilities may exercise their rights.[68]  The CRPD Committee explained that “‘support’ is a broad term that encompasses both informal and formal support arrangements, of varying types and intensity[69]  and stated ‘all persons with disabilities have the right to engage in advance planning and should be given the opportunity to do so on an equal basis with others…Support should be provided to a person, where desired, to complete an advance planning process.’[70]

Access to independent advocacy service is also crucial to ensure non-disabled people’s rights are respected in the care context.  The UN Independent Expert on older persons’ human rights states that ‘effective safeguards for ensuring the autonomy of older persons should be developed and implemented to ensure the respect of the rights, wishes and preferences of older persons and to avoid undue interference’.[71] 

Furthermore, as the UN Independent Expert on older persons’ human rights has recognised such formal complaint mechanisms are ineffective in the care context as they do not adequately address, amongst other issues, older people’s worries about retribution by those upon whom they are dependent.[72]  Studies instead propose monitoring needs based on ‘meaningful social relationships that exist in a context of proximity’[73] and favour a ‘customized, individualized’ approach, that could be assisted ‘possibly through peer networks’.[74]

Conclusion

As discussed, it is internationally recognised that people deprived of their liberty are at heightened risk of experiencing torture or other cruel, inhuman or degrading treatment due to the imbalance of power in the situation.

The State is obliged under the rule against torture and ill-treatment, which is protected by the Irish Constitution, the ECHR, and numerous other international human rights treaties to which Ireland is a party, to ensure those deprived of their liberty receive respectful treatment and the basic resources necessary to protect their dignity.  Nonetheless, evidence shows arbitrary deprivation of liberty is widespread in care settings in Ireland and the State is on notice that people are routinely experiencing deprivation of liberty which are unauthorised by law. 

Despite such notice, the Department of Health’s preliminary draft Heads of Bill fails to provide necessary safeguards to comply with Ireland’s obligations under numerous human rights instruments. Without such safeguards the State is failing in its positive obligations under both domestic and international human rights obligations.

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• Michael J V White, A Pathway Forward: The Scope and Role of the Optional Protocol to the Convention Against Torture (OPCAT) in Relation to Aged Day Care and Disability Residences and Facilities (New Zealand Human Rights Commission 2016).
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• Ann O’Loughlin, ‘Court rules key part of Mental Health Act is unconstitutional’ The Irish Examiner (Cork, 3 May 2018).
• Ann O’Loughlin, ‘Ruling voluntary patient was free to leave his significant implications under Mental Health Act’ The Irish Examiner (Cork, 15 February 2018).
• Caroline O’Doherty, ‘Review of 25,000 in care required as law on consent changes’ The Irish Examiner (Cork, 8 January 2018).
• Colm Keena and Mary Carolan, ‘Legal doubt cast on detention of 93 under mental health law’ The Irish Times (Dublin, 4 may 2018).
• Conall O’Fatharta, ‘Seven die in wait for Magdalene laundry redress payments’ The Irish Examiner (Cork, 5 March 2018).
• Joyce Fegan, ‘”I would say prison was better”: Magdalene survivors tell their story’ The Irish Examiner (Cork, 7 June 2018).
• Maeve O’Rourke, ‘Magdelene Laundry survivors have waited too long for redress’ The Irish Examiner (Cork, 21 February 2018).
• Mary Carolan, ‘Hospital acted unlawfully preventing elderly woman with dementia from leaving’ The Irish Times (Dublin, 2 July 2018).
• Paul Cullen, ‘People in Irish Nursing Homes face “cruel and degrading treatment”’ The Irish Times (Dublin, 27 July 2017).
• Rosita Boland, ‘Nursing home at 61: “I nearly died of shock when I was put in there”’ The Irish Times (Dublin, 20 April 2017).

[1] Recent history has been marked by repeated investigations into, and political and public expressions of alarm about, the State’s practice of supporting and allowing the care of adults and children in systems that are inadequately regulated, and in which there are weak or non-existent mechanisms for respecting individuals rights and ensuring that complaints are heard and responded to. See generally Ann O’Loughlin, ‘Court rules key part of Mental Health Act is unconstitutional’ The Irish Examiner (Cork, 3 May 2018); Ann O’Loughlin, ‘Ruling voluntary patient was free to leave his significant implications under Mental Health Act’ The Irish Examiner (Cork, 15 February 2018); Caroline O’Doherty, ‘Review of 25,000 in care required as law on consent changes’ The Irish Examiner (Cork, 8 January 2018); Colm Keena and Mary Carolan, ‘Legal doubt cast on detention of 93 under mental health law’ The Irish Times (Dublin, 4 may 2018); Conall O’Fatharta, ‘Seven die in wait for Magdalene laundry redress payments’ The Irish Examiner (Cork, 5 March 2018); Joyce Fegan, ‘”I would say prison was better”: Magdalene survivors tell their story’ The Irish Examiner (Cork, 7 June 2018); Maeve O’Rourke, ‘Magdelene Laundry survivors have waited too long for redress’ The Irish Examiner (Cork, 21 February 2018);

[2] The power imbalances which exist in the healthcare context mean care settings are places of heightened risk of arbitrary deprivation of liberty and thus the State’s obligations to protect and defend human rights take on extra significance in this context. See generally Mary Carolan, ‘Hospital acted unlawfully preventing elderly woman with dementia from leaving’ The Irish Times (Dublin, 2 July 2018); Paul Cullen, ‘People in Irish Nursing Homes face “cruel and degrading treatment”’ The Irish Times (Dublin, 27 July 2017); Rosita Boland, ‘Nursing home at 61: “I nearly died of shock when I was put in there”’ The Irish Times (Dublin, 20 April 2017).

[3] Census 2016 results show that the population aged over 65 increased by 19% between 2011 and 2016 to 637,567.  According to current population projections, by 2046 there will be between 1.3 and 1.4 million people aged over 65, and 470,000 people aged over 80 in Ireland: Central Statistics Office (2016) Population and Labour Force Projections 2016-2046 Dublin, Government of Ireland.

[4] In Ireland, approximately 4.5% of older people live in a congregated setting or residential care settings, commonly called nursing homes.  This is approximately 40% higher than the current European average.  It is estimated that one-third of women and one-quarter of men are likely to spend some time in a nursing home before they die: S. Donnelly and others, ‘” I’d prefer to stay at home, but I don’t have a choice” Meeting Older People’s Preference for Care: Policy, but what about practice?’ (National Centre for the Protection of older People, University College Dublin, 2016); Sage Support & Advocacy Service for Older People (2016), Responding to the Support and Care Needs of our Older Population (2016).

[5] UNHRC, ‘Report of the Independent Expert on the enjoyment of all human rights by older persons, Rosa Kornfeld-Marte’ (13 August 2015) UN Doc A/HRC/30/43 para 74 citing UN Economic and Social Council (ECOSOC) ‘Report of the United nations High Commissioner for Human Rights on the human rights situation of older persons’ (20 April 2012) UN Doc E/2012/51.  See also J Drennan and others, Older People in Residential Care Settings: Results of a National Survey of Staff-Resident Interactions and Conflicts (National Centre for the Protection of older People, University College Dublin, 2012).

[6] See United Nations Division for the Advancement of Women, ‘Gender Dimensions of Ageing’ (2000) 5

[7] See ECOSOC, ‘Report of the United Nations High Commissioner for human Rights on the human rights situation of older persons’ (20 April 2012) UN Doc E/2012/51.

[8] See UNHRC, ‘Report of the Independent Expert on the enjoyment of all human rights by older persons, Rosa Kornfield-Matte’ (13 August 2015) UN Doc A/HRC/30/43; UNHRC, ‘Report of the Independent Expert on the enjoyment of all human rights by older persons, Rosa Kornfield-Matte’ (8 July 2016) UN Doc A/HRC/33/44.

[9] Part 13 of the Assisted Decision-Making (Capacity) Act 2015 Preliminary Draft Heads of Bill for Public Consultation Purposes Only. Available at < https://health.gov.ie/wp-content/uploads/2017/12/Deprivation-of-Liberty-Safeguard-Heads-draft-for-public-consultation.pdf>.

[10] Assisted Decision Making (Capacity) Act 2015

[11] Otherwise understood as the right to freedom from arbitrary or unlawful detention.

[12] Article 40.4.1 of the Irish Constitution states ‘No citizen shall be deprived of his personal liberty save in accordance with law.’

[13] This means the prohibition on arbitrary detention is of such importance that it binds states even when they have not ratified a particular Convention outlawing it: See United Nations General Assembly, Report of the Working Group on Arbitrary Detention, UN Doc A/HRC/22/44 (24 December 2012.

[14] Convention for the Protection of Human Rights and Fundamental Freedoms (adopted 4 November 1950, entered into force 3 September 1953) 213 United nations Treaty Series 222 (ECHR), Article 5.

[15] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCP), Article 9.

[16] Charter of Fundamental Rights of the European Union 2000 OJ (c 364) 1(EU Charter), Article 6.

[17] Convention on the Rights of Persons with Disabilities (adopted 24 January 2007, entered into force 3 May 2008) (2007) 46 ILM 441 (CRPD), Article 14.

[18] United Nations General Assembly, Report of the Working Group on Arbitrary Detention, UN Doc A/HRC/22/44 (24 December 2012, para. 48.

[19] ‘[t]he State cannot completely absolve itself from its responsibility by delegating its obligations in this sphere to private bodies or individuals.’: Storck v Germany (2006) 43 EHRR 6.

[20] Finance Act (1998)

[21] The Health Service Executive (HSE) Service Plan 2017 provides for an additional €18.5 million on the 2016 rate for the Nursing Home Support Scheme, allowing an additional 490 people to be funded in long-term residential care which increases funding to cater for over 23,600 people in long-term residential care.  This compares to an additional €10 million for Home Care funding, which results in no increase on allocation of 10,570 million hour of Home Help hours, but an additional 300 Home Care Packages giving capacity to provide a package to 16,750 people: The Health Service Executive (HSE) Service Plan, National Service Plan 2017 <http://www.hse.ie/eng/services/publications/serviceplans/Service-Plan-2017/2017-National-Service-Plan.pdf>.

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[22] ‘State supported community care is provided for through the provision of Home Care Packages Scheme and Home Help which are implemented by the Health Services Executive (HSE).  The emphasis in health care policy relating to the ageing and health care since the late 1960’s has been on enabling older persons to live in their homes as long as possible.  However, to date, no statutory obligation exists to compel the State to provide community-based services to everyone. Home Care Packages (HCP’s), first introduced in 2006, are the main current community care policy fulcrum;’.  These are packages of care tailored to the needs of the individual whose needs cannot be met by the mainstream Primary, Community and Continuing Care (PCCC) Services.  The overall objective of HCP’s is to maintain older people at home and in their communities, particularly those at risk of inappropriate admission to long-term care or acute hospitals.  HCP’s provide a broader range of supports than home help and can include some therapy and nursing support for a few weeks after a hospital stay to ongoing daily visits from a home care assistant to help a person get out of bed, washed and dressed.  They can include a range of services, such as public health nursing, day care, occupational therapy, physiotherapy, home help, home care and respite care, that are shaped around each person’s individual needs.  HCP’s can either be provided through a cash grant, which the recipient can use to purchase the care and support they need or through the organisation of care services by the HSE’: Sage Support and Advocacy Service for Older People, Responding to the Support and Care Needs of our older Population (2016); HSE guidelines and procedures note that the extent of the support available through the Home Care Package Scheme is subject to the limit of the resources allocated each year to the HSE for the running of the scheme.  Due to the discretionary basis of the provision of home care access to services can vary from one geographical (Community health Organisation (CHO)) area to another: HSE, ‘National Guidelines and Procedures for Standardised Implementation of the Home Care package Scheme’ (2010).

[23] S. Donnelly and others, ‘” I’d prefer to stay at home, but I don’t have a choice” Meeting Older People’s Preference for Care: Policy, but what about practice?’ (National Centre for the Protection of older People, University College Dublin, 2016). Such an inaccessible home care service also impacts on the number of elderly people remaining longer than necessary in acute hospital settings. In December 2016, there were 436 recorded delayed discharges from acute hospital, reflecting 436 people who are medically ready for discharge but unable to do so as they do not have an appropriate place to go.  See Presentation by Michael Fitzgerald, HSE Head of Operations and Service Improvement, Services for Older People, Presentation to the Irish Gerontological Society and Irish Social Policy Association Symposium on Exploring the Establishment of Statutory Homecare Service in Ireland (26 May 2007) <http://www.irishgerontology.com/sites/default/files/basic_page_pdf/M.%20Fitzgerald%2C%20Services%20for%20Older%20People%2C%20HSE.pdf >.  See also Rosita Boland, ‘Nursing home at 61: “I nearly died of shock when I was put in there”’ The Irish Times (Dublin, 20 April 2017).

[24] See UN Economic and Social Council (ECOSOC) ‘Report of the United nations High Commissioner for Human Rights on the human rights situation of older persons’ (20 April 2012) UN Doc E/2012/51.

[25] See Michael J V White, A Pathway Forward: The Scope and Role of the Optional Protocol to the Convention Against Torture (OPCAT) in Relation to Aged Day Care and Disability Residences and Facilities (New Zealand Human Rights Commission 2016).

[26]See Sage Support and Advocacy Service, ‘Human Rights: Vulnerable Adults and Older People in Ireland: Submission to the United Nations (UN) Committee Against Torture on the Second Periodic Report of Ireland’ (2017).

[27] See generally Mary Carolan, ‘Hospital acted unlawfully preventing elderly woman with dementia from leaving’ The Irish Times (Dublin, 2 July 2018).

[28] S. Donnelly and others, ‘” I’d prefer to stay at home, but I don’t have a choice” Meeting Older People’s Preference for Care: Policy, but what about practice?’ (National Centre for the Protection of older People, University College Dublin, 2016).

[29] See Win Tadd and others, Dignity in practice: An exploration of the care of older adults in acute NHS Trusts (Cardiff University, University of Kent, 2011).

[30] See The Law Society of England and Wales ‘Identifying a Deprivation of Liberty: A Practical Guide (London 2015).

[31] Sage Support and Advocacy service, ‘Submission as part of the Consultation on the Deprivation of Liberty: Safeguard Proposals’ (9 March 2018) <http://www.sageadvocacy.ie/wp-content/uploads/2018/03/sage_Submission-DOL-Safeguards-Proposals_09032018.pdf>.

[32] See generally Michael J V White, A Pathway Forward: The Scope and Role of the Optional Protocol to the Convention Against Torture (OPCAT) in Relation to Aged Day Care and Disability Residences and Facilities (New Zealand Human Rights Commission 2016) 22

 Mental Disability Advocacy Centre (MDAC), ‘Cage beds: Inhuman and Degrading Treatment  

[33] Win Tadd and others, ‘Dignity in Practice: An Exploration of the Care of Older Adults in acute NHS Trusts (Cardiff University, University of Kent, 2011).

[34] K Pillemer and D W Moore, ‘Abuse of patients in nursing homes: Findings from a survey of staff (2009) 29(3) The Gerontologist, 314.

[35] Z. Feng and others, ‘Use of Physical Restraints and Antipsychotic medication in nursing homes: a cross national study’ 16(1) International Journal of Geriatric Psychiatry (2009), 1110.

[36] Sage Support and Advocacy Service, ‘Submission as part of the Consultation on Deprivation of Liberty: Safeguard Proposals’ (9 March 2018).

[37] See generally T. Goergen, ‘A multi-method study on elder abuse and neglect in nursing homes’ (2004) 6(3) Journal of Adult Protection, 15.

[38] See generally R. Harding and E. Peel, ‘” He was like a Zombie”: Off-Label Prescription of Antipsychotic Drugs in Dementia (2013) 21 Medical Law Review, 243;

[39] In 2009 Banejee estimated the use of medication to control the behaviour of older people in nursing homes ranged from 38% in Finland, to 34% in Switzerlandm 27% in the United States and 11% in Hong Kong: S. Banerjee, The Use of Antipsychotic Medication for People with Dementia: Time for Action (An independent report commissioned and funded by the United Kingdom Department of health, 2009).

[40] See UNHRC, ‘Report of the Independent Expert on the enjoyment of all human rights by older persons’ (8 July 2016) UN Doc A/HRC/33/44.

[41] Sage Support and Advocacy Service, ‘Submission as part of the Consultation on Deprivation of Liberty: Safeguard Proposals’ (9 March 2018).

[42] Lon S Schneider and others, ‘Risk of Death with Atypical Anti-psychotic Drug Treatment for Dementia: Meta-analysis of Randomized Placebo-controlled Trials’ (2006) Journal of the American Medical Association, 294.

[43] See geneally R. Harding and E. Peel, “He was like a zombie”: Off-label Prescription of Antipsychotic Drugs in Dementia’ (2013) 21 Medical Law Review, 265.

[44] Australian Ombudsman Board, ‘Annual Report on the Activities of the National Preventative Mechanism (International Version)’ (2014).

[45] Sage Support and Advocacy Service, ‘Submission as part of the Consultation on Deprivation of Liberty: Safeguard Proposals’ (9 March 2018), 8.

[46] See M v Ukraine App no 2452/04 (ECtHR, 19 April 2012); Kedzior v Poland App no 45026//07 (ECtHR, 16 October 2012); Human Rights Committee, General Comment No 35, ‘Article 9 (Liberty and security of person)’ (16 December 2014) UN Doc CCPR/C/GC/35; European Prison Rules; Extract from the 16th General Report [CPT/Inf (2006) 35], published in 2006, para 51, referring to restraint in psychiatric hospital settings: ‘Every psychiatric establishment should have a comprehensive, carefully developed, policy on restraint. The involvement and support of both staff and management in elaborating the policy is essential. Such a policy should make clear which means of restraint may be used, under what circumstances they may be applied, the practical means of their application, the supervision required and the action to be taken once the measure is terminated. The policy should also contain sections on other important issues such as: staff training; complaints policy; internal and external reporting mechanisms; and debriefing. In the CPT’s opinion, such a comprehensive policy is not only a major support for staff, but is also helpful in ensuring that patients and their guardians or proxies understand the rationale behind a measure of restraint that may be imposed.

[47] See for example Quinn v France (App No 18580/91) Judgement of 22 March 1995; Labita v Italy (App No 26722/95) judgement of 6 April 2000; Irish Human Rights Commission, Follow-Up Report on State Involvement with Magdalen Laundries (June 2013)

[48] See for example Creanga v Romania (App No 29226/03) Judgement of 23 February 2012; Medvedyev and Others v France (App No 3394/03) Judgement of 29 March 2010.

[49] Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights (3^rd edn) (Oxford University Press, 2014)

[50] Even where the draft legislation appears to provide protection, much of it is dependent upon the initiative of the person in charge of a care institution who cannot be considered independent.

[51] United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ‘Approach of the Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or punishment regarding the rights of persons institutionalized and treated medically without informed consent’ UN Doc CAT/OP/27/2 (26 January 2016)

[52] DD v Lithuania App no 13469/06 (ECtHR, 14 February 2012)

[53] CPT Standards 2015, Extract from the 8^th General Report [CPT/Inf (98)], Published in 1998, referring to Recommendation 1235 (1994) on psychiatry and human rights.

[54] Cpt Standards 2015, Extract from the 8^th General Report [CPT/Inf (98)], Published in 1998; Human Rights Committee, General Comment No 35; Article 9 (Liberty and security of person)’ (16 December 2014) UN Doc CCPR/C/GC/35 para 19, citing 1061/2002, Fijalkowska v Poland; 754/1997, A v New Zealand; General Comment No. 31.

[55] See Fox, Campbell and Hartley v United Kingdom (App No’s 12244/86; 12245/86; 12383/86) Judgement of 30 August 1990; See also IHRC Follow-Up Report on Magdelen Laundries; M v Ukraine (App No 2452/04) Judgement of 19 April 2012.

[56] CPT Standards 2015, Extract from the 16^th General Report [CPT/Inf (2006) 35], Published in 2006

[57] CPT Standards 2015, Extract from the 16^th General Report [CPT/Inf (2006) 35], Published in 2006, para 44 See also para 45 where the CPT recommends that “[p]sychiatric establishments…consider adopting a rule whereby the authorisation of the use of mechanical restraint lapses after a certain period of time, unless explicitly extended by a doctor.”

[58] CPT Standards 2015, Extract from the 16^th General Report [CPT/Inf (2006) 35], Published in 2006, para 52

[59] CPT Standards 2015, Extract from the 16^th General Report [CPT/Inf (2006) 35], Published in 2006, para 52: “…Preferably, a specific register should be established to record all instances of recourse to means of restraint.  This would be in addition to the records contained within the patient’s personal medical file.  The entries in the register should include the time at which the measure began and ended; the circumstances of the case; the reasons for resorting to the measure; the name of the doctor who ordered or approved it; and an account of any injuries sustained by patients or staff.  Patients should be entitled to attach comments to the register, and should be informed of this; at their request, they should receive a copy of the full entry.”  The CPT further suggests, at para 53: “Regular reporting to an outside monitoring body, for instance a Health-Care Inspectorate, might be considered as well.  The obvious advantage of such a reporting mechanism is that it would facilitate a national or regional overview of restraint practices, thus facilitating efforts to better understand and, consequently, manage their use.”

[60] United Nations Subcommittee on Prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ‘Approach of the Subcommittee on prevention of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment regarding the rights of persons institutionalized and treated medically without informed consent’, UN Doc CAT/OP/27/2 (26 January 2016), para 9.

[61]That is the right to prompt judicial review of the procedural and substantive lawfulness of detention and release if such detention is found to be unlawful or arbitrary See Milhailvod v Latvia App No 35939/10 (ECtHR, 22 January 2013); Stanev v Bulgaria (2012) 55 EHRR 22. 

[62] Human Rights Committee, General Comment No 35, ‘Article 9 (Liberty and security of person)’ (16 December 2014) CCPR/C/GC/35.

[63] Stukaturov v Russia (2012) 54 E.H.R.R. 27, citing Winterwerp (1983) 5 E.H.R.R. CD3-5 and Luberti v Italy (1984) 6 E.H.R.R. 440; See also Rakevich v Russia (58973/00) October 28 2003

[64] See Stanev v Bulgaria (2012) 55 EHRR 22 citing Stukaturov v Russia (2012) 54 E.H.R.R. 27.

[65] See Stanev v Bulgaria (2012) 55 EHRR 22 citing Megyeri v Germany (1993) 15 E.H.R.R. 584.

[66] Kedzior v Poland App No 45026/07 (ECtHR, 16 October 2012); Human Rights Committee, General Comment No 35, ‘Article 9 (Liberty and security of person)’ (16 December 2014) UN Doc CCPR/C/GC/35 para 19: ‘Deprivation of liberty must be re-evaluated at appropriate intervals with regard to its continuing necessity (citing 754/1997, A v New Zealand para 7.2: see Committee on the Rights of the Child, General Comment No 9, para 50). See also CPT Standards 2-15, Extract from the 8^th General Report [CPT/Inf (98) 12], published in 1998, para 40: ‘Regular reviews of a patient’s state of health and of any medication prescribed is another basic requirement.  This will, inter alia, enable informed decisions to be taken as regards a possible de-hospitalisation or transfer to a less restrictive environment. 

[67] Independent advocacy is one means of ensuring that all the safeguards that in principle protect from arbitrary detention are in fact accessible to people who are in need of care, and are effective.

[68] Article 12 CRPD requires States to ‘take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity’: UN Committee on the Rights of Persons with Disabilities, General Comment No 1, ‘Article 12: Equal recognition before the law’ (19 May 2014) UN Doc CRPD/C/GC/. 

[69] For example, persons with disabilities may choose one or more trusted support persons to assist them in exercising their legal capacity for certain types of decisions, or may call on other forms of support, such as peer support, advocacy (including self-advocacy support), or assistance with communication.: UN Committee on the Rights of Persons with Disabilities, General Comment No 1, ‘Article 12: Equal recognition before the law’ (19 May 2014) UN Doc CRPD/C/GC/1 para 17.

[70] UN Committee on the Rights of Persons with Disabilities, General Comment No 1, ‘Article 12: Equal recognition before the law’ (19 May 2014) UN Doc CRPD/C/GC/1 para 17.

[71] UN Human Rights Council, Report of the Independent Expert on the enjoyment of all human rights by older persons, Rosa Kornfeld-Matte, UN Doc A/HRC/30/43 (13 August 2015), para 50.

[72] UN Human Rights Council, Report of the Independent Expert on the enjoyment of all human rights by older persons, Rosa Kornfeld-Matte, UN Doc A/HRC/30/43 (13 August 2015), para 50.

[73] M. Charpentier and M. Souliéres, ‘Elder Abuse and Neglect in Institutional Settings: The Residents Perspective’ (2013) 25(4) Journal of Elder Abuse and Neglect, 339.

[74] UN Human Rights Council, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E Mendez, UN Doc A/HRC/22/53 (1 February 2013), para 63.