Mental Capacity Act 2005, Deprivation of Liberty Safeguards England, 2019-20

Article 5 of the Human Rights Act states: "Everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty (unless) in accordance with a procedure prescribed in law.”

The Deprivation of Liberty Safeguards is a procedure prescribed in law when a person who lacks mental capacity to consent to their care or treatment is being deprived of their liberty in a care home or hospital in order to keep them safe from harm. The procedure involves having the arrangements independently assessed to ensure they are in the best interests of the individual concerned and to give those subject to a deprivation of liberty the means to challenge this.

DoLS were introduced as an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. They were specifically introduced to prevent breaches of the European Convention on Human Rights (ECHR) following the case HL v the United Kingdom (also known as R v Bournewood Community and Mental Health NHS Trust) was taken to the European Court of Human Rights (ECHR).

The case involved a regular outpatient to a psychiatric hospital with autism and learning difficulties who was deemed by the hospital staff to be unable to make decisions about the best place to receive necessary treatment. The hospital staff felt it was in his best interests to remain in hospital but his carers disagreed and wanted to care for him at home. Because the hospital staff made the ultimate decision to keep him in hospital, the ECHR ruled that this detention did not comply with the European Convention on Human Rights and amounted to him being deprived of his liberty.

To prevent further similar breaches of the ECHR, the MCA 2005 was amended to provide safeguards for people who lack capacity specifically to consent to treatment or care in either a hospital or a care home that, in their own best interests, can only be provided in circumstances that amount to a deprivation of liberty, and where detention under the Mental Health Act (MHA) 1983 is not appropriate for the person at that time. In order to achieve this, four key safeguards were developed:

• organisations wishing to deprive someone of their liberty must seek authorisation to do so
• where authorisations are granted they must be reviewed regularly
• the individual being deprived should be provided with a representative
• the individual being deprived has the right to challenge a granted authorisation

The safeguards relate only to people aged 18 and over. If the issue of depriving a person under the age of 18 of their liberty arises, other safeguards must be considered – such as the existing powers of the court, particularly those under section 25 of the Children Act 1989, or use of the MHA 1983.

A Supreme Court judgement of 19 March 2014 in the case of Cheshire West clarified an “acid test” for what constitutes a “deprivation of liberty”.

The acid test states that an individual is deprived of their liberty for the purposes of Article 5 of the European Convention on Human Rights if they:

• lack the capacity to consent to their care / treatment arrangements
• are under continuous supervision and control
• are not free to leave

All three elements must be present for the acid test to be met.

A deprivation of liberty for such a person must be authorised in accordance with either the Deprivation of Liberty Safeguards (DoLS – part of the MCA), or by the Court of Protection or, if applicable, under the MHA 1983.

The Supreme Court further held that factors which are NOT relevant to determining whether there is a deprivation of liberty include the person’s compliance or lack of objection to the proposed care/treatment and the reason or purpose behind a particular placement. It was also held that the relative normality of the placement, given the person’s needs, was not relevant. This means that the person should not be compared with anyone else in determining whether there is a deprivation of liberty.

The Supreme Court also held that a deprivation of liberty can occur in community and domestic settings where the State is responsible for imposing such arrangements. This will include placement in a supported living arrangement. Hence, where there is, or is likely to be, a deprivation of liberty in such settings, this should be authorised by the Court of Protection. The Court of Protection has held that the acid test also applies in acute non-psychiatric hospital settings.

The judgment suggested that there may have been care arrangements in place that should have been subject to a formal DoLS authorisation, but applications had not been made. Consequently, it was expected that there would be a sharp increase in applications following the judgment.

In fact, the judgement resulted in a ten-fold increase in the number applications between 2013-14 and 2014-15 for health and care providers (who must submit requests for DoLS authorisations and Court of Protection applications) but particularly for the local authority teams who have responsibility for processing requests for authorisations and where appropriate, authorising any deprivation of liberty in care homes and hospitals.

It has also been clear from the official statistics and from speaking with local authorities that due to this increase in requests for authorisations, a number of local authorities were unable to process all applications in a timely manner and this has resulted in a ‘backlog’ of applications awaiting assessment. It is particularly important, given the level of applications being made, that robust procedures are in place to ensure that particularly vulnerable individuals can be identified rapidly, and appropriate action taken. The Association of Directors of Adult Social Services (ADASS) has shared practice in relation to prioritisation and produced a screening tool. The aim of the tool is to assist local authorities to respond in a timely manner to those requests which have the highest priority and many local authorities are currently screening and prioritising DoLS applications.

In March 2014, a House of Lords Select Committee published a detailed report concluding that DoLS were “not fit for purpose” and recommended that they be replaced.

As previously described, at the same time the United Kingdom Supreme Court held that far greater numbers of people qualified to be dealt with under the DoLS system than had previously been thought. This has resulted in an increased number of DoLS applications for health and social care practitioners and local authorities to administer.

As a result of the Select Committee report, the Government asked the Law Commission to undertake a review of DoLS. The purpose of the review was to consider how the law should protect people who lack capacity to consent to their care and treatment and who need to be deprived of liberty to receive that care or treatment. Article 5 of the ECHR guarantees the right to personal liberty and provides that no-one should be deprived of their liberty in an arbitrary fashion. The review also considered a person’s rights under article 8 of the ECHR to respect for private and family life. Improving care for those deprived of their liberty as well as supporting the involvement of families and carers in the process was central to the review.

The Law Commission published a report setting out their recommendations on 13 March 2017, together with a draft Bill. They recommended that DoLS be urgently replaced, a conclusion supported by the Joint Select Committee on Human Rights in their June 2018 report ‘The Right to Freedom and Safety: Reform of the Deprivation of Liberty Safeguards’ which called for urgent implementation of a new scheme known as Liberty Protection Safeguards (LPS).

The Government introduced a bill in July 2018 to reform DoLS and the legislation received Royal Assent on 16 May 2019. The legislation provides for the repeal of DoLS to replace it with LPS. The key changes include:

• applications can be made for people aged 16 and over
• LPS will apply to people in private and domestic settings
• responsible bodies will replace supervisory bodies to authorise arrangements that give rise to a deprivation of liberty
• introduction of a pre-authorisation review
• authorisations to be renewed for a period of up to 12 months on the first renewal, or up to 3 years on any subsequent renewal

The LPS scheme was due to come into force in October 2020; this has now been postponed until April 2022. Therefore it does not directly impact on this release of DoLS data.

The DoLS application process begins when a potential deprivation of liberty has occurred or is about to occur. The care home or hospital (also known as the managing authority) must fill out an application form to seek authorisation for the deprivation. Once completed, the application form is sent to the local authority.

A managing authority can grant itself an urgent authorisation if an individual needs to be immediately deprived of their liberty to protect them from harm. When an urgent authorisation is used, details still need to be sent to the local authority. In these situations, an urgent authorisation section within a standard application form is completed. When a standard application relates to an urgent authorisation, local authorities have to complete the assessments within 7 days from the date the hospital or care home grants itself an urgent authorisation. If the standard application does not relate to an urgent authorisation, local authorities have 21 days to complete the assessments. Note that NHS Digital is unable to measure compliance with the 7 day standard as the date that the managing authority granted the urgent authorisation, i.e. the start of the 7 day period, is not included in the DoLS dataset.

Once the local authority receives an application, they must appoint at least two people to carry out six assessments. These must include a Mental Health Assessor (MHA) and a Best Interest’s Assessor (BIA). The MHA must be a doctor with the necessary skills, experience and training. The BIA could either be an Approved Mental Health Professional (AMHP), a social worker, a nurse, an occupational therapist or a chartered psychologist with the necessary skills, experience and training.

The six criteria that need to be assessed and fulfilled for an application to be granted are:

• Age Requirement: The person must be 18 years old or over.
• Mental Capacity Requirement: The person should be assessed as lacking the mental capacity to make a decision about the care or treatment they receive in a care home or hospital.
• Mental Health Requirement: The person should be assessed as having a mental disorder as defined under the Mental Health Act 1983 but disregarding any exclusion for people with learning disabilities.
• No Refusals Requirement: The person must not have made a relevant advance decision, nor have someone appointed (donee) under a Lasting Power of Attorney, nor a court appointed deputy, which / who is in opposition to the proposed care or treatment.
• Eligibility Requirement: A person is eligible unless they are subject to a requirement under the Mental Health Act 1983 that conflicts with the authorisation being requested, or object to being in hospital for the purpose of treatment of a mental disorder, or to being given some or all of the treatment in question, and they meet the criteria for detention under the Mental Health Act 1983.
• Best Interests Requirement: The aim of this assessment is to establish whether a deprivation of liberty is occurring or would occur, and if so, whether it is:

• in the best interests of the individual
• necessary in order to prevent them coming to harm
• a proportionate response to the likelihood of them suffering harm and the severity of that harm

Where all six criteria are met, the application is granted and this means that the individual can be legally deprived of their liberty by the hospital or care home. The authorisation can be granted for any length of time up to a year. If any of the six criteria are not met an authorisation cannot be granted. The assessment process should stop once an assessment fails to meet the criteria, with no further assessments being required to be undertaken.

During an authorised DoLS case, a number of reviews can occur, which will reassess whether the person should continue to be subject to a deprivation of liberty. Reviews may take place at any time during the DoLS period. There are statutory grounds for carrying out a review that are outlined in the DoLS Code of Practice.

The DoLS scheme can be used to assess and authorise deprivations of liberty in care home, hospice and hospital settings. However, a “deprivation of liberty” that is “attributable to the state” can occur in other “community settings”. This includes supported living arrangements and some domestic settings. In these settings, the DoLS scheme is not available and instead, an application must be made to the Court of Protection.

The Mental Capacity Act Code of Practice

The code of practice gives guidance to people who:

• work with people who can’t make decisions for themselves
• care for people who can’t make decisions for themselves

It says what you must do when you act or make decisions on behalf of people who can’t act or make those decisions for themselves. https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice

Deprivation of Liberty Code of Practice

The Code of Practice contains guidance on the deprivation of liberty safeguards. It is particularly intended to provide guidance for professionals involved in administering and delivering the safeguards, who are under a duty to have regard to the Code. The Code is also intended to provide information for people who are, or could become, subject to the deprivation of liberty safeguards, and for their families, friends and carers, as well as for anyone who believes that someone is being deprived of their liberty unlawfully. http://webarchive.nationalarchives.gov.uk/20130104224411/http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_085476

Monitoring the use of DoLS

The Care Quality Commission (CQC) has a duty to monitor the use of the Deprivation of Liberty Safeguards and they do this through a programme of inspections of care providers. They publish an annual summary on their findings within the wider ‘State of Care’ report. The link below is for the latest report: http://www.cqc.org.uk/publications/major-report/state-care

Further sources of guidance

The Department of Health commissioned the Law Society to produce guidance for practitioners on what constitutes a deprivation of liberty following the Supreme Court judgment. This guidance contains advice for different health and care settings, as well as useful “key questions” that can help identify a potential deprivation of liberty. The guidance can be found at the following link: http://www.lawsociety.org.uk/support-services/advice/articles/deprivation-of-liberty/

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