Deprivation of Liberty


The European Convention of Human rights Article 5 (1) says, everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the specific cases and in accordance with procedure prescribed by law. The Deprivation of Liberty Safeguards (DoLS) was introduced by the Mental Health Act 1983 (MHA) and updated in 2007, as an amendment to the Mental Capacity Act 2005 (MCA).  However the safeguards do not apply to a person detained under the MHA A deprivation of liberty authorisation cannot be used if a person has the mental capacity to make decisions, so the person’s capacity will be assessed as part of the process. The MCA provides safeguards and monitoring when people are deprived of liberty. There are five principles to the MCA and the DoLS are in addition to and do not replace other safeguards in place through the MCA. The safeguards particularly but not always relate to those planning care. People should always consider all options, which may or may not involve restricting the person’s freedom, and should provide care in the least restrictive way possible. However, if all alternatives have been explored and the hospital or care home believes it is necessary to deprive a person of their liberty in order to care for them safely, then they must get permission to do this by following strict processes. These processes are the Deprivation of Liberty Safeguards, and they have been designed to ensure that a person’s loss of liberty is lawful and that they are protected. The key elements of the MCA are, to ensure the person who is without mental capacity is provided with a representative, to give the person (or their representative) the right to challenge a MCA through the Court of Protection and to provide a mechanism for DoLS to be reviewed and monitored regularly. How do we deprive a person of their liberty? There is no one single factor identifying DoLS it is a question of the degree and intensity of control in the overall situation. There are some samples of the type of restrictions that would not constitute deprivation Main door locked, confusing, keypad/double door handles, returning a person who has wandered out of a residence, dissuading a confused person from leaving, using benign force to do so, using benign force to feed, dress, and provide medical treatment or benign force being used to bring a confused person back to the care home or hospital. Placing reasonable limitations on visits by carers, refusing to let a person leave the facility without an escort whose job is to support/care for the person or using restraint, medication or seclusion in an emergency situation to respond to the patients threatening, disturbed behaviour So what is a deprivation of liberty? There have been several test cases in the European Court of Human Rights and in the UK that have clarified which situations may constitute a deprivation of liberty:  a person being restrained in order to admit them to hospital,  medication being given against a person’s will, staff having complete control over a person’s care or movements for a long period, staff making all decisions about a person, including choices about assessments, treatment and visitors and staff deciding whether a person can be released into the care of others or to live elsewhere. Generally these are issues that are serious enough that there is likelihood of the harm to the person, you the have to assess if the deprivation of liberty is proportionate to the risk of harm and if the person could not be protected from harm in any other reasonable way. Deprivation is ultimately a legal question, Staff should always try to care for a person in a way that does not deprive them of their liberty. If they are unable to do this, the registered manager of a care home is responsible for applying for an authorisation for the deprivation of liberty. The managing authority should do this either when someone is about to be admitted, or when they are already in the care home or hospital. It is unlawful to carry out an action that will deprive someone of their liberty, without an authorisation for this action being in place. The application for a standard authorisation will be made to the supervisory body – this may be the local authority or the primary health care trust. The supervisory body will arrange an assessment to decide whether the qualifying criteria for DoLS are met, and will either grant or refuse an authorisation. In an emergency, the management of the care home or hospital may grant itself an urgent authorisation, but must apply for a standard authorisation at the same time. This urgent authorisation is usually valid for seven days, although the supervisory body may extend this for up to another seven days in some circumstances. Before an urgent authorisation is given, steps should be taken to consult with carers and family members. Once an Authorisation has been started, the supervisory body must arrange for an assessment to take place within 21 days, to establish whether the qualifying requirements for an authorisation are met for that particular person. These include Age: Is the person over 18? No refusals: Would authorisation for deprivation conflict with existing legal arrangements such as an Advances Decision or Lasting Power of Attorney? Mental Capacity Assessment: Does the person have a mental capacity about whether they should be accommodated in the relevant hospital or care home to be given care or treatment? Mental Health Assessment: Does the person have a mental disorder within the meaning of Mental Health Act 1983? Eligibility assessment: Is the person eligible for Deprivation of Liberty safeguards? (that this, they are not already liable to be detained under the MHA) Best interests’ assessment: Would a deprivation of Liberty be in the person’s best interests? An authorisation for a deprivation of liberty cannot be granted unless all of these requirements are met. An authorisation should last for the shortest time possible up to a maximum of 12 months. The assessment on which the authorisation is based can remain valid for 12 months. The managing authority and the supervisory body must: make regular checks to see if the authorisation is still needed, remove the authorisation when no longer necessary, provide the person’s representative with information about their care and treatment. For more information see: www.mental-capacity.com Margaret E Moody