The Deprivation of Liberty Safeguards were introduced into the Mental Capacity Act 2005 through the Mental Health Act 2007. They were introduced to ensure that safeguards were put in place to protect people receiving care in a hospital or care home where this care takes away some of their freedom.
A person’s freedom may be taken away due to the fact that they have not chosen where they are being cared for or due to the type of care that they are receiving. The Deprivation of Liberty Safeguards sets a procedure that looks to ensure that any restrictions on a person’s liberty are in that person’s best interests.
Who do the Deprivation of Liberty Safeguards apply to?
The Deprivation of Liberty Safeguards apply to people in England and Wales who:
- Are aged 18 and over;
- Suffer from a mental disorder or disability of the mind, such as dementia or a profound learning disability;
- Lack the capacity to give informed consent to the arrangements made for their care and/or treatment; and
- For whom deprivation of liberty (within the meaning of Article 5 of the ECHR) is considered after an independent assessment to be necessary in their best interests to protect them from harm.
What is considered as a Deprivation of Liberty?
This is described as when:
‘The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements.’
This could be anything from restraining a person, preventing them from leaving the premises or locking their bedroom door at night.
The two main requirements are therefore that the person is not free to leave and that they lack capacity to consent to these arrangements.
A person is still considered as not being free to leave even if they are not psychically able to do so but are likely to be stopped if they did try to leave.
In order to understand when a person may not have capacity to consent we need to look at when is person is deemed to have capacity. This is when a person can:
- Understand the information required to make the decision including the options;
- Retain the information for long enough to be able to make a decision;
- Weigh up all the consequences and understand the consequences of any decision they shall make; and
- Communicate their decision to the parties involved.
When do the Deprivation of Liberty Safeguards apply and how do they work ?
If a care home or hospital intends to deprive a person of their liberty by continuous supervision and control then the care home or hospital must follow a strict set of checks to ensure that the person is protected. The beginning of this procedure is a Deprivation of Liberty Safeguards assessment.
This assessment is usually requested by the hospital or care home from the Local Authority. If you are concerned that a person’s liberty is being deprived then you should first talk to the care home or hospital and request an assessment. If this is not successful you can write to the Local Authority yourself asking them to investigate the persons care arrangements.
The assessment will be carried out by two people usually appointed by the Local Authority. This will be a best interests assessor and a mental health assessor. These assessors will look at whether or not a deprivation of liberty has taken place, and if so whether or not this is in the person’s best interests. They will also consider if the person should be detained under the Mental Health Act (where the Deprivation of Liberty Safeguards do not apply) and if the treatment being received goes against any advance decisions the person, their Power of Attorney or the Court has made in respect of an advance refusal of treatment.
If all the criteria are met then the assessors will provide authorisation for the deprivation of liberty.
If the authorisation is not given because all of the criteria have not been met then the activity that would deprive the person’s liberty must not take place. It may be that further options would need to be considered that are less restrictive on the persons liberty or that the person does actually have mental capacity and should be able to make their own decision.
An authorisation should be for as little time as possible but can be for as long as 12 months. During the period of authorisation the care home or hospital and Local Authority should:
- Make regular checks to see if the authorisation is still needed;
- Remove the authorisation when it is no longer needed; and
- Provide the person’s representative (see below) with information about their care and treatment.
Is an urgent Deprivation of Liberty Safeguards available ?
In an emergency situation, a care home or hospital can grant itself 7 days but they must apply for a Deprivation of Liberty Safeguards at the same time.
What safety mechanisms are put in place ?
During the above process certain safeguards are put in place. These are:
- The person being assessed is required to have an appointed representative who should monitor the persons care. This is usually a family member or friend. If no friend or family member is available then the Local Authority will appoint a paid member;
- The person or their representative is given the right to challenge any authorisation through the Court of Protection; and
- The deprivation of liberty is reviewed and monitored regularly. This can include the representative requesting that a further assessment be undertaken should circumstances change.
What happens after authorisation is given?
The above safety mechanisms should continue in place until the Deprivation of Liberty Safeguards ends ensuring that the representative is kept up to date on the treatment and any reviews are undertaken when appropriate.
The representative can also apply to the Court of Protection at any time in order to review the position should they not be happy with the response from the care provider or the Local Authority.
Can there be a claim for damages for false imprisonment where a Deprivation of Liberty Safeguards was not received or implemented properly?
The case law on this area to date is limited. However, the case of Bostridge v Oxleas NHS foundation Trust [2015] EWCA Civ 79 considered whether damages should be more than nominal for a technical breach of the Mental Health Act 1983. In this case, Mr Bostridge had been admitted to hospital under the Mental Health Act. There had however been a technical problem with the how the process was completed which meant that technically his detention was not lawful.
In the proceedings, the Court heard from an expert who confirmed that if the process had been followed correctly, Mr Bostridge would still have been detained. The general position in law is that a person can only claim damages for their loss incurred as a result of any breach. As in these circumstances Mr Bostridge would have been detained in any event, he did not have any loss and the Court ordered nominal damages of £1.
Mr Bostridge appealed to the Court of Appeal who upheld the decision of the lower Court.
There is also the recent case of Essex County Council V CP [2015] EWCOP 1, which dealt with the removal of a 91 Year old man from him home without the appropriate Deprivation of Liberty Safeguards being in place. In this case, it was ordered that the procedures were breached in removing the Claimant from his home which had resulted in him being detained for a number of months. The Court ordered the Claimant damages of £60,000 together with the care home fees for the period in question and his legal fees.
Whether or not a person would be entitled to damages for a failure to obtain or comply with a Deprivation of Liberty Safeguards may very much depend upon what would have happened if the hospital or care home had followed the correct process. If a Court considers that if the care giver had followed the correct process than the persons liberty would have legally been deprived then this may be considered as technical breach only for which nominal damages would be ordered. However, should the Court consider that the person’s liberty would not have been deprived, but it was as a result of a failure to comply with the legislation, then damages are likely to be considered by the Court.
The actual damages in these circumstances can be very difficult to assess and could only be done so on a case by case basis.