I’ve written about the Deprivation of Liberty Safeguards (aka DoLs) and Best Interests Assessments before but the last time I touched on them in detail was a back in 2009 when I looked at some of the initial assessments I had done.
Now, almost two years down the line, there is a slightly better understanding of the process and it is something I’ve been asked specifically about so I thought I’d run through a few thoughts on the issue.
The Deprivation of Liberty Safeguards were introduced as a part of the Mental Capacity Act 2005 and ‘went live’ in April 2009.
They were introduced as the government’s response to a European Court ruling on the HL v Bournewood case. The details are in the link but very very basically, it involved a man who was an informal patient at the Bournewood Hospital and the illegality under the European Convention of Human Rights, to be deprived of his liberty in ‘informally’.
Article 5(4) of the European Convention of Human Rights – now (and since the incident at Bournewood) incorporated into UK law as the Human Rights Act 1998 – states that
Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
Article 5 is a limited rather than universal right – meaning that had HL been held under the Mental Health Act this would not have applied (and in any case, he would have had the right of appeal through the tribunal process). However as an informal patient he had no such right.
The Deprivation of Liberty Safeguards were an attempt to bridge the so-called ‘Bournewood Gap’ so that there was a legal framework which applies to people who are detained without consent and capacity and who are being deprived of their liberty and who are not subject to the Mental Health Act.
The process of identifying a Deprivation of Liberty falls on what is the ‘management authority’. This would be the care home or the hospital. Deprivations of Liberty must be instigated by a ‘public authority’ so this law does not apply to private homes or supported housing.
One of the biggest dilemmas for someone involved in the process is deciphering what a ‘deprivation of liberty’ actually is. There is little guidance and a little case law.
I tend to refer back to the Deprivation of Liberty Safeguards Code of Practice which attempts to give some examples. For me, the important thing to consider (as one of the ‘assessments’ I complete as a Best Interests Assessor involves establishing if a Deprivation of Liberty actually exists) is the difference between a restriction of liberty and a deprivation of liberty – one of which is liable to the legal framework and the other not. Chapter Two of the DoLs Code of Practice is useful in identifying some of the main issues to be aware of but as it emphasises each decision is unique in the way it plays out for that individual.
Incidentally – for those who were asking about the locked doors and keypads to ‘keep residents/patients’ in in residential homes and hospitals – this is dealt with in the Code of Practice. The existence of the locks themselves would not alone be a deprivation of liberty but there may be deprivations due to cumulative effects of ‘full and effective control’ by care staff or nurses on someone’s activities or by the degree and intensity of other co-existing controls.
Jones as well, in his commentary in the Mental Capacity Act Manual gives some examples of differentiation between restrictions and deprivations of liberty. This is something that we frequently discuss when we, as Best Interests Assessors meet and share practice and experience. Two people may not make the same judgement as to whether there is a deprivation or not.
So if the managing authority believes there to be a (or that there will be) Deprivation of Liberty – they request an authorisation. These can either be urgent or standard. They can allow themselves a few days if they see an immediate deprivation of liberty but they have to apply for a standard authorisation in the meantime which means the full assessments.
The managing authority asks the supervisory body (Local authority for care homes and PCT for hospitals) for an authorisation of the deprivation of liberty. The supervisory body arranges the assessment.
There are six assessments. Usually they are done by two individuals – they have to be done by at least two although more can be involved, I’ve never known it. The reason there have to be two is that the Mental Health Assessment has to be done by a different person to the one who does the Best Interests Assessment. The other assessments are usually done by one or the other of those assessors.
Neither assessment can be done by anyone involved in the care of the individual being assessed – although they can be done by people who are employed by the local authority/PCT etc who has asked fro the assessment.
Age Assessment – is the person over 18? Seriously, that’s it. I quite like this one. It’s very straightforward. Particularly in older adults services.
No refusals – Advance decisions or decisions made by legal deputies or donees and lodged with the Court of Protection apply to treatment and care decisions under the Mental Capacity Act. The wishes of the deputy or donee or the individual if they have made an advanced direction, remain valid and would supersede any Deprivation of Liberty order made. Again, this is usually conducted by the Best Interests Assessor
Mental Capacity Assessment – The Deprivation of Liberty Safeguards only apply to people who lack the capacity to make decisions about their care needs and/or placement of treatment. This would be done in the same way that capacity decisions are made in other areas – starting from the base of an assumption of capacity. The Mental Health Assessor or the Best Interests Assessor can do this.
Mental Health Assessment – Any person that this applies to has to be have some kind of ‘disorder or impairment of the mind’ as defined in Section 1 of the Mental Health Act. The assessor must be a doctor with additional training completed. The assessment must take into account how that person’s mental health may be affected by the proposed deprivation of liberty.
Eligibility Assessment – if someone is subject to detention under the Mental Health Act or may meet the criteria for detention under the Mental Health Act they are not eligible for an authorisation of a deprivation of liberty. This assessment must be completed by a suitably trained doctor (s12 doctor) or an AMHP – because the assessor has to be familiar with the Mental Health Act.
Best Interests Assessment – this has to be carried out by someone who is registered as an AMHP, a social worker, an occupational therapist or a chartered psychologist who has more than two years post-qualifying experience and has undertaken additional training specifically for this purpose. They would be ‘approved’ by the supervisory body on an annual basis.
They must determine whether there is a deprivation of liberty existing and also if it is in that person’s best interest and/or if there is any less restrictive option that could be taken. It can be a lengthy process and always involves family members, care staff/nursing staff, contacting anyone with any involvement with that person to get significant background information etc. There are some situations in which an IMCA (Independent Mental Capacity Advocate) has to be employed.
If a decision is made to authorise a deprivation of liberty, the person to whom that refers has a ‘representative’ who would have the right to appeal. The representative is appointed by the supervisory body. Usually it is a relative but if there are no relatives, the supervisory body would employ an IMCA in that role.
Chapter 7 of the DoLs Code of Practice gives guidance about the role of the representative.
For me while understanding it is a protection for someone who may be deprived of their liberty, the actual process is remarkably (although unsurprising clunky). The paperwork (in England, at least) is a horrific mash up of tick boxes that seem to lend themselves to repetitiveness. Assessments I have completed as a Best Interests Assessor are generally very interesting as I quite enjoy the process of trying to find out as much about a person as possible and digging around for information, the forms suck any interest in the process straight out of my every pore.
Personally, I think the whole process could have been better thought through. The ‘review’ and ‘appeal’ are much less accessible than the Mental Health tribunal systems which are in place and in my mind, there is less protection under the DoLs framework when compared to the protections under the Mental Health Act.
Relying on managing authorities (residential and nursing homes and hospitals) to identify there own deprivations of liberty has led to some unusual interpretation of the law. Particularly as they are reluctant to refer as they can feel that there is an implied criticism.
I have no doubt whatsoever there are many many of these deprivations of liberty that exist and are not referred.
Usually, you’d think the CQC might pick them up on inspection but the CQC don’t seem to inspect any more.
Has it actually helped practice? I’m not sure.
Generally, I’m a great fan of the Mental Capacity Act but this part of it I have many reservations about. I think it was actually poorly drafted and no-one thought through the practicalities before implementation but it isn’t going anywhere so we might as well deal with it.
For further reading, I’d definitely recommend the
Deprivation of Liberty Safeguards Code of Practice – it’s remarkably easy reading for a government document. And it’s free to download.
Jones Mental Capacity Act Manual – has the text of the Act and some useful commentary.
The Mental Capacity Act 2005 – A Guide for Practice (actually, I don’t have this book, but I have the previous edition which has been very useful for putting the some more difficult concepts into easier to manage forms – and I’m a great fan of Robert Brown’s books so I would happily recommend it even though I haven’t read it!).