UK: New Deprivation Of Liberty Safeguards Introduced

Last Updated: 14 October 2008
Article by Sian Fisher

"But I don't want to go among mad people," Alice remarked.
"Oh, you can't help that," said the Cat. "We're all mad here. I'm mad. You're mad."
"How do you know I'm mad?" said Alice.
"You must be," said the Cat, "or you wouldn't have come here."
-- Lewis Carroll

Despite the views of the Cheshire Cat (and disregarding his somewhat old fashioned terminology), not every patient treated in a mental health unit falls within the scope of the Mental Health Act (MHA). Consequently, until recently it was possible for such a patient to argue that if his treatment was overly restrictive, then the detention was unlawful.

Deprivation Of Liberty

Article 5 of the European Convention of Human Rights provides that "Everyone has the right to liberty and security of person" save in specified cases, and even then the deprivation of liberty must "be in accordance with a procedure prescribed by law".  Thus, it can be breached by the state, but only in limited situations which are closely regulated, and which provide for a review of the detention process and a right of appeal against that detention. 

By way of illustration, where an offence is committed which is punishable by a period of imprisonment, then the perpetrator will be sent to jail and will be deprived of his or her liberty.  However, the duration of that sentence will be known: the period of detention kept under review and can be subject to appeal.  Similarly, if an individual is detained under the MHA, the detention is governed by strict regulations which provide for a formal assessment process, a formal review, and a right of appeal.

However, no such safeguards protect large numbers of vulnerable patients who are not detained under the MHA.

Case 11

HL was autistic, with severe learning difficulties.  He was sent to Bournwood Hospital (Bournwood) following a violent episode in a day centre.  He was compliant, and there was no need to section him.  After a period of detention, his carers requested that he be discharged but his treating doctors refused. Proceedings were commenced to compel his discharge, and the case ultimately went before the European Court of Human Rights (ECHR).  The ECHR had no difficulty in finding that HL had been deprived of his liberty and that the deprivation of liberty was unlawful given that it was entirely unregulated. 

Case 2

Similar problems arose in the case of JE v DE2.  JE and DE were married.  DE was blind with short-term memory impairment and was heavily dependent upon his wife.  After a period, JE, exasperated by the shortcomings in the care provided by the Local Authority, left her husband on the street where he was found by the police and sent to a care home.  After a period, she wanted him home but was told by staff at the care home that if she tried to take DE they would call the police.  Again, the matter ended up before the High Court where the judge found that DE had been deprived of his liberty.  He agreed:

"The crucial question in this case as it seems to me is not so much whether and if so and to what extent DE's freedom or liberty was curtailed within an institutional setting.  The fundamental issue in this case, in my judgment, is whether DE was deprived of his liberty to leave the X Home and whether DE has been and is deprived of his liberty to leave the Y Home in the sense of removing himself permanently in order to live where and with whom he chooses...

Given that there has been no formal assessment and there is no regulation of his detention, it was unlawful."

Plugging The Gap

It was against the backdrop of these cases that the Government instituted a consultation process to bridge what was known as the "Bournwood Gap".  The consultation process began in March 2005 and resulted in Deprivation of Liberty Safeguards ("DOLS") which were introduced into the Mental Capacity Act 2005 (MCA) by the Mental Health Act 2007.  The DOLS  are unlikely to be in effect before April 2009, as the draft Regulations and the draft Code of Practice are still under review.

Deprivation Of Liberty Safeguards

The amendments to the MCA do not provide new powers of detention but simply impose a regulatory framework to safeguard the rights of those individuals, such as patients with severe learning disabilities, or with dementia, who are under a regime which deprives them of their liberty. Inevitably, ensuring those rights are protected will impose an additional burden on those involved in their care.

The safeguards apply to patients in hospitals and in residential care homes.  Where a hospital or care home considers that a person is being managed under a regime which will deprive him of his liberty as defined in Article 5, then they must apply to the Supervisory Body (SB) for authorisation.  In the case of a hospital, the relevant SB is the local PCT, and in the case of a care home, the Local Authority. However, anyone with a concern over the management of a patient, such as family members, can apply to the SB themselves if they have previously asked the care home or hospital to apply for authorisation, and that request was refused.

Once in receipt of a request for authorisation, the SB must carry out an assessment of the affected patient. This comprises six discrete parts: an age assessment; a mental health assessment; a mental capacity assessment; a best interest assessment; an eligibility assessment; and a "no refusal" assessment.

The first aspects are self-explanatory; the individual must be over 18, he must have a disorder or disturbance of the mind and he must lack capacity. The question of his capacity must be addressed by a specifically appointed Mental Health Assessor. To satisfy the eligibility criteria, the patient must, in broad terms, fall outside the existing Mental Health legislation (if he comes within the MHA, then his Article 5 right has not been breached).  A "no refusal" assessment means that the assessor must have regard to any previous decisions which may have been made under an advance directive, by a court appointed deputy or under a lasting power of attorney, to make sure they do not conflict with his assessment.

The most important assessment is that of best interest.  This requires the appointment of a Best Interest Assessor (in addition to the Mental Health Assessor) to determine whether the deprivation of liberty is in the patient's best interests, is necessary to prevent them from harm, and a reasonable and proportionate response to the needs of that individual.  The assessor must consult widely with all interested parties, and review the proposed care plans.  The emphasis upon the need for the detention to be in the best interests of the patient is, of course, entirely in keeping with the fundamental principle which underpins the MCA itself. To ensure that this principle is observed, DOLS provide that, where the patient does not have any family or friends with whom the Best Interests Assessor can consult, an Independent Mental Capacity Advocate must be appointed.

If, at the end of that assessment process, the assessor decides that not all the conditions are met, then the requirement for the detention is not made out, and all interested parties must be notified that the deprivation of liberty is unlawful. Steps must then be taken to devise a management plan which meets the needs of the patient without detention, unless the deprivation of liberty is required for life sustaining treatment, in which case the period of detention can persist pending application to the Court of Protection.

If, on the other hand, the assessor considers that all the DOLS are satisfied, then the detention is lawful and appropriate authorisation will be issued by the SB.  Again, all interested parties must be notified of the decision, and a representative for the patient will be nominated by the Best Interests Assessor for the duration of the detention. Again, if a suitable family member or friend cannot be identified then the SB will have to appoint a representative.

The recommended period for which the detention should last is specified by the Best Interests Assessor, and must be for a period of no longer than 12 months, to be assessed on a case by case basis.  It will be subject to review either at the request of the hospital or care home, or the party himself.  There is also right of appeal.

Conclusion

There is no doubt that the introduction of DOLS places an additional burden, not only on PCTs, but also on all professionals caring for vulnerable patients. However, it is clearly right that the fundamental right to freedom of such people is respected, and protected. These are important safeguards, which cannot be ignored. If the DOLS are observed, and appropriate authorisation obtained, then their detention will be lawful. If not, then it will be unlawful.

Footnotes

1. HL v UK (Application No 45508/99)

2. [2006] EWHC 3459 (Fam)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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