This posting is a brief summary of the deprivation of liberty safeguards for anyone who doesn’t know anything about them, but would like some more information. I’m going to be talking a lot about the deprivation of liberty safeguards and the Mental Capacity Act in future postings, some in more technical detail, so it’s handy to have a post for me to refer back to for anyone who’s new to the concept.
What is a ‘deprivation of liberty’?
It seems logical to being with explaining what a deprivation of liberty is, but unfortunately that’s one of the hardest things to understand about the safeguards. It’s probably easiest to talk you through their history and some examples, because there is no straightforward definition.
The ‘deprivation of liberty safeguards’ were introduced in 2009 following a famous court case, often called the ‘Bournewood case’. The Bournewood case concerned a man called HL, who was autistic and lived in an adult foster placement in the community with two carers, Mr and Mrs E. One day at his day centre, HL became very agitated and distressed. His GP was called, who gave him a sedative and it was decided to take him to Bournewood Hospital. At Bournewood hospital he was admitted ‘informally’ for assessment and treatment. An ‘informal’ admission means the hospital don’t have legal powers to detain someone; it basically means they are not ‘sectioned’ under the Mental Health Act. ‘Sectioning’ under the Mental Health Act means hospitals can detain people who refuse consent to be admitted and treated; the problem for people like HL is they are deemed to ‘lack mental capacity’ to either give or refuse consent to be treated. This means that when they are compliant, they were historically treated as if they had consented to being admitted. In law though, if someone lacks mental capacity, their being compliant doesn’t mean they have consented. HL was very likely ‘compliant’ because he was heavily sedated, because he lacked the practical and communication skills to kick up a fuss about being incarcerated, and perhaps he was heavily institutionalised having grown up in a long-stay hospital (Bournewood hospital, in fact).
Things came to a head because the hospital refused to let Mr and Mrs E, HL’s carers, visit him. They said this was because they didn’t want HL to think he could go home with them. Mr and Mrs E took up court proceedings, demanding that HL be returned to their care. They didn’t give up, even when the House of Lords said that HL had not been detained (because he’d never actually tried to run away and been prevented) and that even if he had, professionals had acted out of ‘necessity’. They fought the case all the way to the European Court of Human Rights, who agreed with Lord Steyn that it was a ‘fairy tale’ that HL had been free to leave. The European court heavily criticised the UK system of ‘informal’ detention, because it lacked any proper safeguards for people and their families to appeal inappropriate detention. In response to this judgement, the UK government drafted the ‘deprivation of liberty safeguards’.
Since the ‘Bournewood case’, there have been many other cases where the courts have been asked to determine whether a person is deprived of their liberty or not. The courts found, for instance, that a man in a care home who was not allowed to return home to his wife was deprived of his liberty. They found that a woman with dementia, who was to be removed from her home because her wandering placed her in danger, was deprived of his liberty when moved to a care home. They found a young man with learning disabilities, who was removed from the care of his mother against his and her wishes, was deprived of his liberty. They found that when Manchester Council removed a young man with learning disabilities from his foster carer on ‘safeguarding’ allegations, and placed him in supported living, they unlawfully deprived him of his liberty.
However, they also found that another young man with learning disabilities who was removed from his mother’s care by police was not deprived of his liberty, in no small part because he didn’t want to go back to her. They found that adults or children with learning disabilities who live with their parents or foster carers are generally no deprived of their liberty, even if they are locked in their rooms at night and under their carers’ constant monitoring. It’s really difficult to give any general rules about what constitutes a deprivation of liberty; in my view the courts haven’t really produced a consistent line on this, and it’s something I’ll try and write about in the future. For now though, if you have any suspicions that you or someone you care about is deprived of their liberty, please read on for information about your rights.
What are the ‘deprivation of liberty safeguards’?
The deprivation of liberty safeguards, often called the DoLS, are a set of administrative and legal procedures which are there for the protection of anyone who is deprived of their liberty in care homes or hospitals in the UK. Before going on to outline them, it’s important to remember that just because the DoLS only apply in care homes and hospitals, people can be found to be deprived of their liberty in supported living or other types of accommodation as well (see below for more on this).
If a care home or hospital deprives someone of their liberty, they have to apply to their local ‘supervisory body’ for authorisation. For hospitals, the supervisory body is the local Primary Care Trust. For care homes, the supervisory body is the local authority. Most supervisory bodies have a specialist team who deal with these applications, and the ones I am acquainted with are very approachable and friendly and happy to answer questions from professionals or members of the public with specific concerns. So, once the care home or hospital has applied to the supervisory body for ‘authorisation’, the supervisory body has to carry out a number of assessments to ensure that the deprivation of liberty a) is actually occurring, b) is appropriate. These include checks on the age of the relevant person, whether they have a qualifying mental disorder that warrants ‘detention’, how restrictive the type of care being provided is and whether it’s in the person’s ‘best interests’ to meet their care or treatment needs in that way. If all the qualifying criteria are met, the supervisory body must grant authorisation to the deprivation of liberty for a maximum period of a year, and ensure that they appoint a ‘representative’ and/or an Independent Mental Capacity Advocate (IMCA) to ensure the relevant person’s rights are upheld (more on this below).
The assessment process
There are two key figures in this assessment process: the mental capacity assessor (often, but not always, a medical doctor) and the ‘best interests’ assessor. Mental capacity assessors check whether the relevant person has the mental capacity to make decisions about their own care – if they have capacity, they might, for instance, decide they want to stay in the care home or hospital (they ‘consent’ to it), or they might want to discharge themselves. Best interests assessors make sure the care plan is the ‘least restrictive’ it can be in order to provide the necessary care, and that it is in the person’s best interests to provide care in that way. They should consider alternatives, although there seems to be some confusion about how wide the range of alternatives should be. In one case, the judge said that local authorities should always ensure placements with family carers are the top priority of any possible placements, which suggests that supervisory bodies should be considering whether care could be provided with families – if they are willing, and with appropriate support – rather than placing someone in residential care against their family’s wishes.
Representatives and IMCA’s
Supervisory bodies should appoint an appropriate friend or relative of the relevant person to be their ‘representative’ under the DoLS. The representative is a very important figure in the DoLS, and they have lots of special rights that are key to making sure the safeguards operate fairly. A guide for representatives by the Department of Health is available here. Representatives have the right to see any reports or assessments about the relevant person, they must also be consulted by the assessors and kept informed of the status of any deprivation of liberty authorisation procedures. If a representative does not agree with the outcome of the supervisory body’s authorisation process, they have the right to seek free legal advice and representation, and appeal in the Court of Protection. These are really really important rights, because otherwise it can be very expensive to get legal advice about a deprivation of liberty case, and you might have to pay a lot of money even to ask permission to take the case to the Court of Protection (if this is your situation, don’t give up, see below for more suggestions).
Sometimes people who lack mental capacity don’t have any friends or family who would make an appropriate representative. In this case, the supervisory body must appoint them an Independent Mental Capacity Advocate (an ‘IMCA’) who can stand up for the relevant person’s rights. The IMCA is an independent figure, who can scrutinise the DoLS process and make sure everything is going as it should – IMCA’s can also refer the case to the Court of Protection if they have any concerns.
Section 39D IMCAs: Vital help for representatives and carers
If you’re not a representative
If you think someone is being unlawfully deprived of their liberty
If the DoLS don’t apply
If contacting the local authority or PCT does not resolve the problem, the only option may to bring the case before the Court of Protection. Because the DoLS don’t apply, you won’t have an automatic right to legal aid, although you may still qualify if you are on a low income (contact the Community Legal Service for more advice on this). If you want to attempt to bring a case without legal representation, you would still have to pay a fee yourself to the court. If you plan to go to court alone, you might find the Personal Support Unit’s services helpful. There is guidance here on applying to the Court of Protection; the number for the Court of Protection is 0300 456 4600.