THE DEPRIVATION OF LIBERTY SAFEGUARDS

Amendments to the Mental Capacity Act 2005

Deprivation of Liberty and the Mental Capacity Act

• The Deprivation of Liberty safeguards are part of the Mental Capacity Act

• They amend the Mental Capacity Act however…• Care and treatment must still adhere to the Mental

Capacity Act• The Safeguards provide legal authority but only to

detain the individual subject to certain strict criteria

Deprivation of Liberty Safeguards – care for those without capacity

• Will affect 1.those lacking capacity to give informed consent to

their care +2. Where the nature of the care could be depriving

them of their liberty +3. Must be over 18+4. Cared for in a hospital or care home (Care

Standards Act)

Deprivation of Liberty Safeguards

• Deprivation of liberty must be authorised via a legal procedure

• Assessment must establish eligibility criteria and best interest proportionate + no other viable alternative – 6 areas of assessment

• Assessor can attach conditions to the authorisation including time period of authorisation

• Maximum period of authorisation is 12mths• Person has right of appeal and a representative

appointed

What is Deprivation of liberty?

• Arises from the “Bournewood” case – a ECtHR case – Article 5.

• HL had been deprived of his liberty unlawfully, because of a lack of a legal procedure which offered sufficient safeguards against arbitrary detention (5(1)) and speedy access to court (5 (4)) – Bournewood Trust were found to have exercised complete and effective control.

• “The distinction between deprivation of and restriction upon liberty is merely one of degree or intensity and not one of nature or substance”

• Therefore no definition• A serious matter to be used sparingly and avoided wherever

possible

What is Deprivation of Liberty (cont)

• Draft Code of Practice refers to a need to consider the combined impact of all restrictions – degree and intensity rather than nature or substance

• The person is not or would not be allowed to leave the facility

• no or little choice about their life within the care home or hospital

• Prevented from maintaining contact with the outside world• Restraint may indicate the persons wishes being over

ridden and need to consider if liberty is being deprived

D) Best interest assessor recommends

period

Age assessment

A) Hospital or care home managers identify those at risk of deprivation of liberty & request authorisation from

supervisory body

B) Assessment commissioned by supervisory

body. IMCA appointed for unbefriended

C) Request for authorisation

declined

Mental health assessment

Mental capacity

assessment

No Refusals assessment

Best interest assessment

Eligibility assessment

Any assessment

says no

All assessments support

authorisation

In an emergency hospital or care

home can issue an urgent

authorisation for 7 days while obtaining

authorisation

F) Authorisation is granted and persons representative

appointed

E) Best interest assessor

recommends person to be appointed as

representative

G) Authorisation implemented by managing

authority

Managing authority requests review

because circumstances change

Authorisation expires and Managing authority

requests further authorisation

H) Review

Person or their representative

appeals to Court of Protection

which has powers to terminate

authorisation or vary conditions

Person or their representative requests

review

AssessorsCarry out assessments

Managing AuthorityHospital or Care Home

Responsible for care and requesting an assessment of deprivation of liberty

Relevant PersonPerson being deprived of liberty

RepresentativeProviding independent support

Family/Friends/CarersConsulted, involved and provided

with all information

Supervisory BodyPCT or LA

Responsible for assessing the need for and authorising deprivation of liberty

IMCA Court of Protection

Responsibilities in Deprivation of Liberty

Age Assessment

• To establish if the relevant person is 18 or over

Anyone deemed to be appropriate

Mental Capacity Assessment

• Purpose – To establish whether the relevant person lacks capacity to consent to the arrangements proposed for their care or treatment

Anyone eligible to act as a Mental Health Assessor or Best Interests Assessor

No Refusals Assessment

• Purpose – To establish whether an authorisation for DoL would conflict with other existing authority for decision making for that person

Anybody that the Supervisory Body considers has the skills and experience to perform the role

Eligibility Assessment

• Purpose – to establish whether the relevant person should be covered by the MHA 1983 of DoL under MCA 2005

Best Interests Assessor

Someone familiar with the Mental Health Act 1983

Mental Health Assessment• Purpose – Is the relevant person suffering from a

mental disorder within the meaning of the MHA 1983

Doctor

Approved under Section 12 of MHA 1983 or Registered medical practitioner who has special experience in diagnosis and treatment of mental disorder

Completed appropriate MCA 2005 mental health assessor training

Doctors cannot be Best Interests Assessors

Best Interests Assessment• Purpose – to establish firstly whether DoL is

occurring or is going to occur and if so whether it is in their best interests, it necessary to prevent harm to themselves and the DoL is proportionate to the likelihood and seriousness of the harm

AMHP; Social Worker, Nurse, Occupational Therapist, Psychologist:

With skills and experience required by the regulations

Has the required skills for the role

Has completed specific DoL Best Interests Assessor training

Suitability considering the circumstances of the case

Advocacy and deprivation of liberty

• IMCA – is appointed where the person being assessed has no family or friends to consult with.

• IMCA – Where family/friends are available and an IMCA is not instructed at point of assessment, where the appointed representative is an unpaid person, they may refer to an IMCA – issue specific

Person in need of care to prevent harm to themselves

Is it necessary to deprive them of their liberty?

Apply to SB for standard authorisation

Is application appropriate?

Conduct assessments

Do all assessments support DoL?

Grant authorisation

Monitor and Review DoL

Appoint a representative

Grant urgent authorisation

Reject application

Reject application

Yes

No

Now?

No

Yes

Yes

DoL Process

Purpose: To prevent unlawful deprivation of liberty

Summary responsibilities – Supervisory Bodies

• Receive application for Deprivation of Liberty

• Ensure communication between bodies

• Determine if request is appropriate - assess

• Appoint to the roles - assessors and IMCA

• Obtain written assessments to ensure relevant criteria are met

• Grant authorisation for specific period or decline based on the assessment outcomes

• Attach conditions where appropriate

• Communicate decision and support alternative care planning where relevant

• Appoint representative• Inform in writing relevant parties

of authorisation & appeals procedure

• Review Deprivation of Liberty authorisation

• End the authorisation• Governance of duty

Summary responsibilities – Managing Authorities

• Identify and minimise Deprivation of Liberty

• Determine if application for DoL is required in advance

• Grant urgent authorisation where required

• Submit application for DoL• Ensure communication between

relevant bodies • Support assessment – access to

information, consideration of appropriate representative

• Provide alternative care where authorisation is not granted

• Comply with any conditions attached to authorisation

• Monitor and review DoL authorisation including the representatives invovlement

• End deprivation of liberty• Inform relevant parties of

authorisation & appeals procedure• Review Deprivation of Liberty

authorisation• End the authorisation• Governance/recording

Further information

• Sylvia.manson@eastmidlands.csip.nhs.uk

• www.eastmidlands.csip.nhs.uk

• www.justice.gov.uk

• www.dh.gov.uk