A smiling carer chats with an elderly lady

Defining Deprivation of Liberty

I have talked about Deprivation of Liberty Standards ‘DOLS’ in a previous post. The issue is prevalent in the ageing population and cases are frequently reported in the press involving the fundamental legal and human rights of individuals receiving care in places other than their homes.

In determining whether a DoL is lawful, having a clear definition of ‘deprivation of liberty’ is important. There is currently no definition given in the Statute (Mental Capacity Act 2005) or in the Code of Practice to the MCA. Judges have sought to provide guidance in cases that they have determined, but at this time, the guiding judgment is not thought to be satisfactory in terms of the protection the Safeguards are supposed to provide to the most vulnerable in our society.

In October the Supreme Court is due to hear the combined appeals in Cheshire West and Chester Council v P & Q.  I will be writing posts on DoLS ahead of these cases, explaining the basic issues and commenting on recent developments in law, policy and research to ensure that everyone is aware of the issues before the matter comes before the Court.

The Supreme Court will focus on the legal definition of a deprivation of liberty, but an explanation of the legal framework and procedure is a good starting point for my series of posts on this topic.

DoLS – The legal framework

The Deprivation of Liberty Safeguards (“DoLS“) became law in 2009 to protect individuals deprived of their liberty in care homes and hospitals and, importantly, to provide a process of review to ensure that the deprivation is in accordance with the European Convention on Human Rights.

Where there is concern that a deprivation of liberty exists in a care home or hospital, DoLS requires that the individual’s placement must be ‘Authorised’ by the Local Authority responsible for the care home or hospital. The court must authorise any other deprivation of liberty outside of this framework. I will discuss that in a later post.

Specifically in relation to the DoLS framework, the Manager of the care home or hospital, known as the ‘Managing Authority‘, must identify whether an individual requires restrictions upon their liberty that amount to a DoL.

The Managing Authority will then apply for the placement to be “authorised” by the Local Authority responsible for the care home or hospital. The Local Authority, known as the Supervisory Body’ for the purposes of the Safeguards, will carry out a series of six assessments to determine whether the individual lacks capacity to make decisions concerning care and treatment, that they are eligible to be deprived of their liberty in that particular place and that the DoL is in their best interests.

The most important assessments are the Mental Capacity and Best Interests Assessments, which are carried out by independent assessors.  The Best Interests Assessor will provide a recommendation as to whether there has been a deprivation of liberty and may suggest certain conditions to ensure that the treatment is provided in the least restrictive manner possible.

If the Supervisory Body is satisfied that the individual lacks the requisite mental capacity and that the restrictions on their liberty amount to a deprivation and that deprivation is in his or her best interests – a Standard Authorisation of the DoL will be issued for a time limited period.

When the Standard Authorisation expires, the Managing Authority must request a further Standard Authorisation and the process starts again. Urgent Authorisations can be requested in circumstances where there is insufficient time to go through the lengthy assessment process.

Safeguards

The Supervisory Body must appoint a Relevant Person’s Representative (RPR) for every person to whom they give a Standard Authorisation for deprivation of liberty.

The role of the RPR is to maintain contact with the individual and to represent and support them.  Where appropriate, the RPR can trigger a review of the Standard Authorisation, or act as litigation friend to challenge the Authorisation in the Court of Protection, if the individual lacks capacity to bring a challenge themselves.

The individual is also entitled to an Independent Mental Capacity Advocate, whose role is to ensure that their rights are protected.

Challenging the Standard Authorisation

The key safeguard is that the individual has a right to challenge the Authorisation in the Court of Protection, regardless of the prospects of them successfully doing so.

The Court of Protection may determine whether the individual meets one or more of the qualifying requirements and answer any question relating to the period, purpose or conditions of the Standard Authorisation.

The Court may make an order to vary or terminate the Standard Authorisation or direct the Supervisory Body to do so.

Of course, in determining these applications, the court will need to know whether the specific circumstances of the particular case led to a deprivation of liberty.

In recent decisions where this question has arisen, if the deprivation was not detrimental to the individual concerned, the courts have ordered a review of the situation post the appeal date. A lot, therefore, is riding on the new definition.