Jonathan Wilson, 'Safeguards against What? A critical analysis of the Deprivation of Liberty Safeguards' (LLM dissertation, 28/8/13)
Critical analysis of DOLS This dissertation considers the meaning of ‘deprivation of liberty’ in the context of the Deprivation of Liberty Safeguards (DoLS) which were implemented in April 2009 to bridge the ‘Bournewood gap’. This was a gap in the law confirmed by the European Court of Human Rights (ECtHR) in October 2002, whereby people lacking capacity were accommodated in situations amounting to deprivation of liberty without sufficient legal safeguards. The dissertation will discuss a fundamental problem with the DoLS, namely that ‘deprivation of liberty’ is nowhere defined: it means what it means in Article 5(1) of the European Convention on Human Rights (ECHR), in other words, it means what the courts consider it to mean on a case-by-case basis. Favourite extract: "The intellectual gymnastics required to apply the expansive approach to Article 5, in a consistent fashion, to cases beyond the paradigm of confinement in a cell makes one wonder whether Article 5 is a square peg being used for a round hole. Ewing and Tham, discussing the ‘autonomous’ meaning of deprivation of liberty, speak of the ‘Lewis Carroll and George Orwell schools of treaty and statutory interpretation’."
