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Deprivation of Liberty Safeguards


... support authorisation ... delays in transfer for rehabilitation where delay would reduce ... be inspected by the new health and adult social care regulator ... – PowerPoint PPT presentation

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Title: Deprivation of Liberty Safeguards

Deprivation of Liberty Safeguards
  • Paul Gantley
  • National Programme Implementation Manager
  • Mental Capacity Act 2005
  • 020 7972 4431

  • Introduced into Mental Capacity Act 2005 (MCA)
    through the Mental Health Act 2007
  • Will prevent arbitrary decisions that deprive
    vulnerable people of their liberty
  • Safeguards are to protect service users and if
    they do need to be deprived of their liberty give
    them representatives, rights of appeal and for
    the deprivation to be reviewed and monitored.
  • Safeguards cover people in hospital and care
    homes registered under the Care Standards Act
    2000 whether placed publicly or privately
  • Became a statutory obligation on 1st April 2009

What is deprivation of liberty?
  • Arises from the Bournewood case a ECtHR case
    Article 5.
  • HL had been deprived of his liberty unlawfully,
    because of a lack of a legal procedure which
    offered sufficient safeguards against arbitrary
    detention (5(1)) and speedy access to court (5
  • No definition dependent on case / current law
  • Subsequent cases have found examples where
    deprivation of liberty was and wasnt judged to
    have occurred in similar circumstances
  • A serious matter to be used sparingly and avoided
    wherever possible

What is deprivation of liberty?
  • Supplement to the MCA Code of Practice
  • 2.5
  • The ECtHR and UK courts have determined a number
    of cases about deprivation of liberty. Their
    judgments indicate that the following factors can
    be relevant to identifying whether steps taken
    involve more than restraint and amount to a
    deprivation of liberty. It is important to
    remember that this list is not exclusive other
    factors may arise in future in particular cases.
  • Restraint is used, including sedation, to admit
    a person to an
  • institution where that person is resisting
  • Staff exercise complete and effective control
    over the care and
  • movement of a person for a significant period.
  • Staff exercise control over assessments,
    treatment, contacts and
  • residence.

What is deprivation of liberty?
  • Supplement to the MCA Code of Practice
  • 2.5 (contd.)
  • A decision has been taken by the institution
    that the person will
  • not be released into the care of others, or
    permitted to live
  • elsewhere, unless the staff in the institution
    consider it
  • appropriate.
  • A request by carers for a person to be
    discharged to their care is
  • refused.
  • The person is unable to maintain social contacts
    because of
  • restrictions placed on their access to other
  • The person loses autonomy because they are under
  • supervision and control.

Responsibilities in Deprivation of Liberty
Hospital or care home managers identify those at
risk of deprivation of liberty request
authorisation from supervisory body
In an emergency hospital or care home can issue
an urgent authorisation for seven days while
obtaining authorisation
Assessment commissioned by supervisory body. IMCA
instructed for anyone without representation
Age assessment
No Refusals assessment
Mental health assessment
Eligibility assessment
Mental capacity assessment
Best interests assessment
Authorisation expires and Managing authority
requests further authorisation
All assessments support authorisation
Any assessment says no
Best interests assessor recommends person to be
appointed as representative
Best interests assessor recommends period for
which deprivation of liberty should be authorised
Request for authorisation declined
Person or their representative appeals to Court
of Protection which has powers to terminate
authorisation or vary conditions
Authorisation is granted and persons
representative appointed
Authorisation implemented by managing authority
Managing authority requests review because
circumstances change
Person or their representative requests review
Some key points
  • The deprivation of liberty safeguards are in
    addition to and do not replace other safeguards
    in the MCA
  • Deprivation of liberty is for the purpose of
    providing treatment or care under MCA it does not
    authorise it
  • Essential that hospital and care home managers
    and assessors understand the distinction between
    deprivation and restriction of liberty
  • Every effort should be made to avoid instituting
    deprivation of liberty care regimes wherever
  • Local authorities, PCTs, hospitals, care homes
    and other key stakeholder organisations need to
    work in partnership to deliver DoL safeguards and
    reduce the numbers referred unnecessarily for

How do DOLS relate to the rest of the MCA?
  • Any action taken under the deprivation of liberty
    safeguards must be in line with the principles of
    the Act
  • A person must be assumed to have capacity unless
    it is established that he lacks capacity
  • A person is not be treated as unable to make a
    decision unless all practicable steps to help him
    to do so have been taken without success
  • A person is not to be treated as unable to make a
    decision merely because he makes an unwise
  • An act done, or decision made, under this Act or
    on behalf of a person who lacks capacity must be
    done, or made, in his best interests
  • Before the act is done, or the decision is made,
    regard must be had to whether the purpose for
    which it is needed can be as effectively achieved
    in a way that is less restrictive of the persons
    rights and freedom of action.

  • The MA can give an urgent authorisation for DoL
    where it believes the need is immediate
  • Should normally only be used in response to
    sudden unforeseen needs but also may be used in
    care planning e.g. to avoid delays in transfer
    for rehabilitation where delay would reduce the
    likely benefit of rehab
  • Must not exceed 7 days (or 14 in exceptional
  • Standard authorisations need to be assessed
    within 21 days
  • Cannot be applied for more than 28 days in advance

  • Assessments have to ensure that all the
    requirements are met in relation to deprivation
    of liberty.
  • Regulations have determined who does assessments
  • Six assessments age mental health, mental
    capacity, no refusals eligibility best
  • Doctors have to do MH assessments
  • AMHPs, SWs, OTs, nurses and psychologists are
    best interests assessors

Monitoring the safeguards
  • Will be inspected by the new health and adult
    social care regulator CQC the Care Quality
  • Commission for Social Care Inspection
    Healthcare Commission Mental Health Act
    Commission Care Quality Commission
  • Now in place

DH website
  • http//

  • Nobody else appears to be doing this in this way
  • Scotland No
  • Eire / Northern Ireland Almost certainly not
  • Generally dealt with via mental health
    legislation if at all

So far?
  • Feared flood appears generally to be a trickle
  • Workforce issues especially with doctors
  • Are there opportunities for LD clients / services
  • Last years conference thought so what does
    this years think?
  • An early example of safeguarding the person
    rather than the system powerfully articulates
    the policy / principles at work.
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