The Mental Capacity Act Deprivation of Liberty Safeguards

 

Introduction

The Mental Capacity Act Deprivation of Liberty Safeguards is a new law, which came into force on 1 April 2009.

The safeguards are in response to the 2004 European Court of Human Rights judgement involving an autistic man who lacked the capacity to consent who was kept at Bournewood Hospital by doctors against the wishes of his carers. The court found that he had been deprived of his liberty unlawfully, and the Department of Health committed to introducing new legislation to close the 'Bournewood gap'.

These safeguards provide protection for a very vulnerable group of people who are cared for in hospitals or in care homes registered under the Care Standards Act 2000, in circumstances that deprive them of their liberty, and who are unable to consent (but who are not detained under the Mental Health Act 1983).

The safeguards are designed to protect the interests of an extremely vulnerable group of service users and to:

• ensure people can be given the care they need in the least restrictive regimes 
• prevent arbitrary decisions that deprive vulnerable people of their liberty 
• provide safeguards for vulnerable people 
• provide them with rights of challenge against unlawful detention
• avoid unnecessary bureaucracy

 

What is a Deprivation of Liberty?

Deprivation of liberty has no clear definition. Many people in hospitals and care homes may have their liberty restricted but not all will be deprived of their liberty. The following factors need to be considered:

• Whether professionals have complete and effective control over assessment, care, treatment, contacts, movement and residence 
• Whether the person will be under constant supervision and control and not free to leave 
• Whether restraint is used including sedation 
• Whether the person would be prevented from leaving if they attempted to do so 
• Whether a request from carers for the person to be discharged into their care is likely to be agreed 
• Whether the person can maintain social contacts 
• Whether the person has choice about their life within the home or hospital

Who do the Deprivation of Liberty Safeguards apply to?

The safeguards apply to anyone:

• aged 18 and over 
• who suffers from a mental disorder or disability of the mind – such as dementia or a profound learning disability 
• who lacks 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 are the authorities' duties under the Safeguards?

Hospitals and Care Homes (these are called Managing Authorities) have a duty to:

• provide care and treatment in ways that do not deprive a person of their liberty, or if this is impossible;
• apply to the Supervisory Body for authorisation of the deprivation of liberty.

The Council (which for this purpose is known as a Supervisory Body) has a duty to:

• assess any person for whom the Managing Authorities request a deprivation of liberty;
• authorise a deprivation if it is necessary and in the best interests of a person to whom the Safeguards apply;
• set any necessary conditions to make sure the person's care/treatment meets their needs in their best interests;
• set a timescale for how long a deprivation can last;
• keep records of who is being deprived of their liberty.

What should I do if I feel a person is being deprived of their liberty?

Discuss the issue with the hospital or care home. They may be able to change a person's care or treatment to make sure the person is not being deprived of their liberty, or may be able to explain why a person is not actually deprived of their liberty.

Request that the Supervisory Body reviews the person to see whether they are being deprived of their liberty. This request can be by telephone, fax or email.

Who should I contact?

The Supervisory Body for all persons who are 'Ordinarily Resident' in Tameside is Tameside Metropolitan Borough Council. If a Tameside resident is suspected to be deprived of their liberty in another borough, the Supervisory Body would be Tameside MBC.

If you have a query regarding a possible deprivation of liberty, please contact the Tameside MBC Mental Capacity Act and Deprivation of Liberty Safeguards Coordinator via the details given below.

Address: MCA & DOLS Coordinator, Adult Services, Wilshaw House, Wilshaw Lane, Ashton-under-Lyne, OL7 9QG
Tel: 0161 342 5221
Email: dols@tameside.gov.uk
Fax: 0161 342 5353

For more information please visit the Deprivation of Liberty Safeguards on GOV.UK .