Mental Capacity Act and Deprivation of LIBERTY

Deprivation of Liberty

Overview

From 1 April 2009, new procedural safeguards, known as ‘Deprivation of Liberty Safeguards’ (or DOLS) will be introduced to protect individuals from the unlawful deprivation of their liberty. The new procedures have been introduced by the Mental Health Act 2007 as an amendment to the original Mental Capacity Act 2005.

They have been introduced to fill what had been described as ‘the Bournewood gap’. This referred to an apparent ‘gap’ in the law relating to deprivation of liberty that was identified in a case involving Bournewood Hospital, known officially as HL v UK (2004).

Deprivation of liberty without lawful justification is prohibited under Article 5 of the European Convention on Human Rights. There is a distinction to be drawn between restraining or restricting an individual’s movements and depriving that individual of their liberty. Restraining or restricting an individual’s liberty can be lawful under the Mental Capacity Act 2005. However, depriving an individual of their liberty was not lawful under the Mental Capacity Act 2005. It is this ‘gap’ that the new procedures are aiming to fill.

Restraint is defined in Section 6 of the Mental Capacity Act 2005 as:

• the use or threat of force to secure the doing of an act that the individual resists; or 
• the restriction of the individual’s liberty whether that individual resists or not

Restraint or restrictions on an incapacitate individual’s liberty can be justified under the Mental Capacity Act 2005 provided:

• reasonable steps are taken to establish that the individual lacks capacity in relation to the matter in question; and
• it is reasonably believed that the individual does lack capacity in relation to the matter in question; and
• it is in the best interests of that individual for the act to be done; and
• it is reasonably believed that it is necessary to do the act to prevent harm to that individual; and
• the act in question is a proportionate response to the likelihood of the individual suffering harm; and 
• the act in question is a proportionate response to the seriousness of that harm

However, the distinctions between restraining or restricting an individual on the one hand, and depriving them of their liberty on the other are not always easy to identify.   

For example, it is possible to ‘deprive someone of their liberty’ not just by physical confinement, but also by virtue of the level of control exercised over an individual’s movements.  A high level of control over an individual, such as controls over who can visit them, and when they can conduct certain activities, may result in a finding that they are being deprived of their liberty.  The simple fact that an individual is kept, for example, in a locked ward overnight for their own safety is, some may argue, unlikely to result in a finding that the individual is being deprived of their liberty when their circumstances are assessed as a whole.

The concepts of restraint, restriction and deprivation of liberty are best understood as existing on the same ‘spectrum of control’, with deprivation of liberty involving a higher degree or intensity of control over that individual.  Ultimately, the concept is one to be interpreted in view of the specific circumstances of that individual.

The Deprivation of Liberty Safeguards (DOLS)

The Deprivation of Liberty Safeguards (DOLS) are being introduced in response to the European Court of Human Rights judgment in the ‘Bournewood case’ of HL v UK (2004).

The Bournewood case examined informal hospital admission procedures under the UK common law principle of necessity (in the best interests of the person) as a justification for deprivation of liberty. 

In this case, the incapacitate HL had been admitted to hospital on the basis of the clinical view that his compulsory admission to the hospital was in his ‘best interests’.  HL was subject to a high degree of control in the hospital, which included controls over his visiting arrangements.  The carers of HL appealed against the decision-making made in respect of HL’s care, which resulted in the case finally being determined in the European Court of Human Rights.

The European Court of Human Rights found that HL was deprived of his liberty on the basis of the high level of control being exercised over his movements by the clinicians.  The Court concluded that the issue of whether HL was physically locked in the hospital was not determinative of the question of whether HL was being deprived of his liberty. 

Crucially, the European Court of Human Rights also regarded the UK common law principle of necessity as an insufficiently clear justification for the deprivation of HL’s liberty in accordance with Article 5 of the European Convention on Human Rights.  They found that those who are deprived of their liberty need the benefit of a clear procedure which affords them the opportunity to have their deprivation of liberty reviewed on regular occasions.  In consequence, the UK was found to be in breach of Article 5.

The UK responded to this breach by creating a special procedure to be followed, known as the Deprivation of Liberty Safeguards (DOLS) procedure.  The DOLS procedure has been inserted into the Mental Capacity Act 2005 by the Mental Health Act 2007, and comes into force on 1 April 2009.

The DOLS procedure aims to ‘safeguard’ the liberty of the incapacitate individual by ensuring that a rigorous and transparent procedure is followed prior to any deprivation of liberty.  The DOLS procedure is aimed at ensuring that those caring for, or involved with, incapacitate individuals are able to engage with decision-making involving questions about their liberty.  The DOLS procedure is also aimed at ensuring that such decision-making is conducted carefully, and is subject to independent scrutiny.

The DOLS procedure designates two types of bodies: managing authorities and supervisory bodies.  The hospital or care home that is, or will become, responsible for the incapacitate individual’s care is referred to as the ‘managing authority’.  The Primary Care Trust/Local Health Board or Local Authority with overall responsibility for the care of that person is referred to as the ‘supervisory body’.

Applications for authorisations

The ‘managing authority’ will be responsible for identifying when a person in their care is being, or risks being, deprived of their liberty.  Once the managing authority has identified that a person in their care is being, or risks being deprived of their liberty, they will be obliged to apply to their supervisory body for an ‘authorisation’ of deprivation of liberty. 

Applications can be made on either an ‘urgent’ or ‘standard’ basis.  An urgent application involves the managing authority actually granting itself an authorisation to deprive an individual of their liberty for a period of 7 days whilst the supervisory body considers the application.  This period can be extended for a period of 7 days in exceptional circumstances. On a transitional basis, urgent applications in England made before 30 April 2009 can authorise deprivation of liberty for a period of 21 days.  

An urgent application should only be made on the basis that the managing authority urgently needs to treat or care for an individual in a way that involves depriving them of their liberty.

The supervisory body, having received such an application, is responsible for ensuring that the application is assessed in detail to ensure that a number of criteria are met, including that the deprivation of liberty is in the best interests of the individual.  An ‘authorisation’ can be understood as a form of licence which authorises the actions that have been described in the application.      

Managing authorities will face challenges in determining when and how to apply for an authorisation.   A special Deprivation of Liberty Code of Practice (to accompany the Mental Capacity Act 2005 Code of Practice) has been published to assist in the identification of situations in which an application should be made.  The supplementary code can be accessed here.

  

The Deprivation of Liberty assessments

Once an application is made, the supervisory body will have to appoint ‘assessors’ to positively assess each of the following ‘qualifying criteria’:

• that the individual is over 18;
• that the individual is of unsound mind (a mental health assessment);
• that the individual lacks capacity;
• that the individual is not subject to the Mental Health Act 1983 (and so ineligible for treatment under the Mental Capacity Act 2005);
• that any deprivation of liberty would not conflict with  any valid advanced decisions made by the individual (ie under a lasting power of attorney);
• that the deprivation of liberty would be in the best interests of the individual.

The assessments must be completed within 21 days.  However, on a transitional basis in England, if the managing authority makes the request before 30 April 2009, the supervisory body will have 42 days from the date on which the request is received to complete the assessments. 

When considering whether to authorise the deprivation of liberty, the best interests assessor must always give consideration as to whether the care or treatment being considered could be provided in a less restrictive manner, or in a way that would not involve a deprivation of liberty.  

If the criteria are satisfied then as authorisation must be given.  The maximum duration of a standard authorisation is 12 months. Authorisation must be in writing and include the purpose of the deprivation of liberty, the time period, any conditions attached, and the reasons that each of the qualifying criteria are met.  Appeals against decisions can be made to the Court of Protection.

Conducting the assessments properly is likely to require careful management in accordance with the Regulations.  More details on these can be seen found under the ‘Deprivation of Liberty Regulations’ section on this site.  For example, best interests and mental health assessments must be carried out by different assessors, and the mental health assessment must be carried out by a doctor.  The best interests assessor must also be independent from the managing authority or not involved in the care of the incapacitate individual in question.    

The best interests assessor is responsible for ensuring that the incapacitate individual in question – or ‘relevant person’ – has a representative appointed to support them.  Typically , the relevant person’s representative will be a family member, although other individuals could qualify provided that they are independent from the managing authority or not involved in the care of the incapacitate individual in question.   

In addition, there is scope for the person to be legally represented.  Anyone who does not have family or friends who can be consulted will have an Independent Mental Capacity Advocate (IMCA) instructed to support and represent them during the assessment process.  An IMCA is a specialist advocate trained to advise and represent individuals in relation to mental capacity issues.  

Where it is decided that it is not in a person’s best interests to be deprived of liberty in a particular home or hospital, steps will need to be taken to find an alternative way of providing the care they require.  However, if the authorisation is for detention to enable life sustaining treatment, it will not be unlawful to deprive the person of their liberty whilst a decision is sought from the Court of Protection.

It should be noted that the Regulations in England and Wales that govern the application and assessment procedure are different, so it is important that the correct Regulations are followed.  

The Wales Regulations will operate to different timescales, and have more flexible qualification requirements for the professional assessors that will be involved in the process.

The Deprivation of Liberty Regulations

Applications will have to be compliant with the Deprivation of Liberty regulations.  In England the principal regulations are as follows:

• Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Disputes about Ordinary Residence) Regulations 2008 (which specify all the information to be included on any application);
• Mental Capacity (Deprivation of Liberty: Appointment of Relevant person’s Representative) Regulations 2008 (which specify the criteria for the appointment of a representative).

The regulations for England can be accessed here.

The regulations governing applications, and the forms to be used in such applications, are different in England and Wales, so it is important that the correct regulations and forms are used.

The Welsh Assembly Government (WAG) has also published additional guidance for managing authorities and supervisory bodies working within the Deprivation of Liberty Safeguards (DOLS).  The WAG guidance and forms are designed to reflect the different regulations that govern the procedures in Wales.  It is important to be aware that this guidance is not intended to replace the need to understand the Mental Capacity Act 2005 (as amended), the Deprivation of Liberty Regulations, or the accompanying Mental Capacity Act 2005 Code of Practice and Deprivation of Liberty Code of Practice. 

The guidance is designed to supplement the existing Codes of Practice.  The focus of the guidance is on assisting the understanding of the DOLS process, rather than on the substantive issues involved.  For example, Managing Authorities and Supervisory Bodies will be required to consult the existing Deprivation of Liberty Code of Practice for assistance in determining the existence of a ‘deprivation of liberty’.

The documents will be available from the Welsh Assembly Government website and the Mental Capacity Act website in Wales here.

The key differences in Wales can be summarised as follows:

• Mental Health Assessors: there will be no requirement for the Registered Medical Practitioner (Mental Health Assessor) to have three years post-registration experience in mental disorder. Relevant experience and skills will be sufficient in Wales. There will also be no requirement to have successfully completed the Mental Health Assessors Programme at the Royal College of Psychiatrists.
  
• Best Interests Assessors: there will be no centralised approval of training. All LHB or Local Authority training will be conducted on a local basis.
  
• Best Interests Assessors and conflict of interest: in England the regulations provide that where the care home/hospital and/or LHB/Local Authority are effectively the same body – the best interests assessor cannot be a person employed by them. In Wales, the test is more flexible and simply directs that any best interests assessor should not be involved in the care or treatment of the incapacitate individual in question.
  
• Time frames for assessments: in Wales the deadline of 21 days for completion of an assessment will run from the date the assessor is instructed rather than the date that the LHB/Local Authority receives the request (which is the case in England).
  
• Transitional Provisions: in Wales, where the assessor is instructed by the supervisory body before the 30 April 2009, they will have 42 days to complete the assessments.  In England the 42 day deadline for the assessor runs from the date that the supervisory body is instructed.

Who will be affected?

The likely focus of the new procedures will be those with learning disabilities, dementia or physical injuries - thus care homes serving those with these needs are likely to be most affected by the new procedures. 

The Ministry of Justice Impact Assessment (May 2008) estimates that there are a maximum of 50,000 such individuals who could require authorisations, although predicts that no more than 21,000 actual applications will be made in the first year, with 15 hours of supervisory body time engaged per application.  The Assessment is optimistic, and predicts a steady decline in applications, and time engaged, once the principles and procedures become more familiar to those operating them.

It should be noted that the Mental Health Act 2007 continues to apply to those with mental disorders which justify their detention for assessment or treatment without their consent.  In some cases the Mental Health Act should be used in preference to the Deprivation of Liberty Safeguards. 

The Interface between the Mental Health and Mental Capacity Acts

Guidance is provided in the Mental Health Act 2007 Codes of Practice for England and Wales.  The Codes suggest that Mental Health Act powers are to be preferred when:

• the person has a mental disorder of such a nature and degree warranting assessment or treatment under the Mental Health Act 1983;
• it is not possible to give the person the care or treatment they need without doing something that might deprive them of their liberty;
• the person needs treatment that cannot be given under the Mental Capacity Act 2005 (for example, because the person has made a valid and applicable advance decision to refuse an essential part of treatment);
• the person may need to be restrained in a way that is not allowed under the Mental Capacity Act 2005;
• it is not possible to assess or treat the person safely or effectively without treatment being compulsory (perhaps because the person is expected to regain capacity to consent, but might then refuse to give consent);
• the person lacks capacity to decide on some elements of the treatment but has capacity to refuse a vital part of it – and they have done so; or there is some other reason why the person might not get treatment, and they or somebody else might suffer harm as a result. 

However, Mental Capacity Act 2005 powers should be used where:

• the patient’s mental disorder does not justify detention in hospital;
• the patient needs treatment only for a physical illness or disability

If a person is detained under the Mental Health Act 1983, then the Mental Capacity Act 2005 should not be relied on to give treatment for mental disorder, or to make decisions about that treatment on that person’s behalf. 

In cases where there is doubt as to whether the Mental Capacity Act 2005 powers will be sufficient, the Mental Health Act 1983 should be used.   However, if it is believed that a person can be safely treated under the Mental Capacity Act 2005, there is no need to consider using the Mental Health Act 1983.