Deprivation of Liberty
Sometimes it is Necessary to Deprive a Person of Their Liberty
When a person lacks the Capacity to make decisions about the care and treatment they need, it may be in their best interest to deprive them of their liberty. The Mental Capacity Act 2005 (Deprivation of Liberty Safeguards) exist to ensure that no one is deprived of their liberty without good reason. If someone needs to be deprived of their liberty, then they have specific rights within a legal framework.
The Mental Capacity Act Deprivation of Liberty Safeguards (DoLS) were introduced into the Mental Capacity Act 2005 through The Mental Health Act 2007. The safeguards come into force on 1 April 2009. Under DoLS, a Managing authority (care home or hospital) must apply to its Supervisory Body (local authority or primary care trust) to have someone assessed where it is believed that they should be deprived of their liberty in order to prevent them from harm.
The Supervisory Body arranges assessments to see whether it would be in the persons best interests, and either grants or denies the Managing Authority authorisation to deprive the person of their liberty.
Independent advocates and representatives can be appointed to ensure that the individual receives support during the process
What May Amount to a Deprivation
- The use of restraint or sedation to admit a person to a home or hospital when they are resisting admission
- The exercise of complete and effective control over a persons care, movement, treatments and the contact they can have with others
- The decision by the hospital or care home not to discharge a person into the care of others or to live elsewhere
- The loss of individuality or autonomy because the person is under continuous supervision and control
How Can Someone be Assessed?
The hospital or care home where the person is based must make an application to the Supervisory Body (Redcar and Cleveland Borough Council) when it believes it will be necessary to deprive a person of their liberty. An application can be made up to 28 days in advance of the date deprivation would begin.
The Council are then responsible for arranging the assessment by a Best Interest Assessor and a Section 12 Doctor. Care homes can issue themselves a 7 day Urgent Authorisation if required, but at the same time, a Standard Authorisation request must be made to The Council.
The Council will then commission 6 assessments:
- age (whether the person is 18 or over)
- mental health (whether the person suffers from a mental disorder)
- mental capacity (whether the person lacks capacity to decide where they should be)
- no refusals (whether there is conflict with an advance decision, lasting power of attorney or deputy)
- eligibility (whether the deprivation would conflict with an existing order under the Mental Health Act)
- best Interests (whether deprivation would be in the persons best interests, is necessary to prevent them from harm and is a proportional response to the risk and seriousness of harm)
These assessments will be completed by at least two professionals.
If all the assessments support the authorisation it can be granted for up to 12 months. Once authorisation has been given, a representative (usually a relative or friend) has to be appointed who has the right to appeal against the decision. The representative must be in regular contact with the person and will represent and support them in all matters relating to the Deprivation of Liberty Safeguards. This includes, if appropriate, triggering a review, or using an organisations complaints procedure on the persons behalf.
If no appropriate representative can be found, the supervisory body must contact the Independent Mental Capacity Advocacy Service to provide the necessary support to the individual.
The Department of Health has created a set of forms for the Managing Authority to use for this process. You can find these forms on the Department of Health's Deprivation of Liberty Safeguards webpage. You are strongly advised to read all the available information as they are very helpful in understanding how to use the forms. The forms and guidance ensure you are supplying all necessary information failure to do this could cause a delay in your application being processed.