What is a deprivation of liberty?
Article 5 of the European Convention on Human Rights (‘ECHR’ for short) states that “everyone has the right to liberty and security of person.” It continues to state that no one shall be deprived of their liberty unless it is in accordance with a procedure prescribed by law. The Deprivation of Liberty Safeguards (often referred to as ‘DoLS’) is the legal procedure for when it is necessary to deprive a person, who lacks capacity to make decisions about their care and/or treatment, of their liberty in order to keep them safe. A person is considered to be deprived of their liberty if, where they are residing, they are subject to continuous supervision and control and are not free to leave.
Background to the changes
In 2014, the Law Commission began a review of the Mental Capacity Act and the Deprivation of Liberty Safeguards following two key events – 1) a report by the House of Lords Select Committee which concluded that the current Deprivation of Liberty Safeguards were not fit for purpose, and 2) a decision of the Supreme Court known which gave ‘deprivation of liberty’ a much wider interpretation than there had been previously; this case was known as ‘Cheshire West’.
The review is being reported as one of the most extensive public consultation exercises undertaken by the Law Commission and on 13 March 2017, the final report was published setting out recommendations along with a draft Bill. The report and draft Bill recommend a replacement scheme for the current Deprivation of Liberty Safeguards called the ‘Liberty Protection Safeguards’ The aim is that the Liberty Protection Safeguards will provide greater safeguards for a person who is deprived of their liberty.
The report is 272 pages long and so the aim of this blog is to set out a very brief summary of the key changes and how they may affect you.
Where will Liberty Protection Safeguards apply?
The current Deprivation of Liberty Safeguards only apply to a person deprived of their liberty in a hospital or care home setting. The new Liberty Protection Safeguards would not be limited to specific types of accommodation or residence and so will include, for example, hospitals, care homes, supported living placements, shared housing and private housing.
The current Deprivation of Liberty Safeguards apply to people aged 18 and over meaning that, unless detention under the Mental Health Act is appropriate, a court must authorise the deprivation of liberty of a 16 or 17 year old. The new Liberty Protection Safeguards would apply to anyone aged 16 and over.
The conditions needed for a deprivation of liberty authorisation
Under the current Deprivation of Liberty Safeguards, the conditions that must be met for a deprivation of liberty to be authorised include 1) the person is over 18 years old, 2) the person is suffering from a mental disorder, 3) the person lacks capacity to make decisions about their own care and/or treatment, 4) the restrictions create a deprivation of liberty, 5) the proposed restrictions are in the person’s best interests, 6) the Mental Health Act is not appropriate in the circumstances, and 7) there is no valid advance decision to refuse treatment or support that would be overridden by authorising the deprivation of liberty. Under the Liberty Protection Safeguards, the conditions would be 1) the person lacks capacity to consent to the arrangements being proposed that amount of a deprivation of their liberty, 2) a medical assessment has confirmed that the person is of unsound mind, 3) the arrangements are necessary and proportionate having regard to the likelihood of any harm that may occur to the person and anyone else, and the seriousness of that harm, if the arrangements were not in place, 4) consultation has taken place with, for example, family and friends of the person who is to be deprived of their liberty, and 5) authorising the deprivation of liberty will not conflict with a valid decision of, for example, a deputy, as to where the person who is to be deprived of their liberty should live or what care or treatment they should receive.
The Liberty Protection Safeguards then require an independent review to be carried out to confirm that the conditions are met and that it is reasonable for the responsible body (explained below) to authorise the deprivation of liberty. Who undertakes this review depends on the circumstances. If it is believed that the person who is to be deprived of their liberty does not want to live at the proposed place or receive the proposed care and treatment, the review must be undertaken by an Approved Mental Capacity Professional (explained below). If the proposed arrangements are considered necessary and proportionate because of the likelihood and seriousness of harm to others, again, the review must be undertaken by an Approved Mental Capacity Professional. In all other situations, the review can be undertaken by an Approved Mental Capacity Professional or someone who is independent to the person’s every day care and/or treatment.
What is an Approved Mental Capacity Professional?
This is a new role under the Liberty Protection Safeguards. Local authorities would be responsible for ensuring there are sufficient numbers of Approved Mental Capacity Professionals and also for the approval of them. There is currently no guidance on which professionals could or could not be an Approved Mental Capacity Professional but the role would be to determine whether or not the deprivation of liberty should be authorised.
Who will be responsible for authorising the arrangements that create a deprivation of liberty?
Currently, under the Deprivation of Liberty Safeguards, the ‘supervisory body’ is responsible for considering whether a deprivation of liberty is appropriate. The supervisory body will, generally, be the local authority, if the person is in a care home, or the local health board if the person is in hospital. Under the new Liberty Protection Safeguards, there would no longer be a supervisory body but, instead, a ‘responsible body’ who will be responsible authorising the deprivation of liberty. This will be the local authority except in two situations – 1) if the deprivation of liberty is to primarily occur in a hospital setting, the relevant hospital trust will be the responsible body, or 2) if the deprivation of liberty is to primarily occur outside of a hospital setting but the arrangements are to be mainly carried out through the provision of NHS continuing health care, the relevant clinical commissioning group will be the responsible body.
Length of the deprivation of liberty authorisation
Currently the Deprivation of Liberty Safeguards allow for a deprivation of liberty authorisation to be in place for up to 12 months. At the end of those 12 months, a fresh authorisation must be granted if the deprivation of liberty is to continue to be authorised. Under the Liberty Protection Safeguards, the authorisation would be able to last for a period of up to 12 months, then be renewed for a further 12 months and, thereafter, renewed for periods up to three years.
Right to legally challenge the deprivation of liberty
Currently, under the Deprivation of Liberty Safeguards, the person being deprived of their liberty has the right to challenge their deprivation of liberty in the Court of Protection. Under the new Liberty Protection Safeguards, the right of legal challenge would remain in the Court of Protection but a recommendation has been made that the Government should consider whether a Tribunal might be more effective and appropriate.
The rights to an advocate
Under the Deprivation of Liberty Safeguards, the person being deprived of their liberty must be appointed a ‘Relevant Person’s Representative’ (often referred to as an ‘RPR’). The Relevant Person’s Representative must maintain regular contact with the person being deprived of their liberty and must represent and support the person in all matters relating to their deprivation of liberty including, if appropriate, requesting a review or bringing court proceedings in the Court of Protection. Under the Liberty Protection Safeguards, there would be a duty for the person being deprived of their liberty to be appointed an advocate unless there is an ‘appropriate person’ to represent them and support them. An appropriate person could not be a professional involved in the care and/or treatment of the person being deprived of their liberty or someone who is paid to provide care and/or treatment to them. The appropriate person will also have the right to the support of an advocate. If there is no appropriate person, an Independent Mental Capacity Advocate would have to be appointed.
The proposal under the Liberty Protection Safeguards is that a person would be able to give advance consent to a situation would that otherwise amount to a deprivation of liberty. If advance consent is given, then no deprivation of liberty will arise from the arrangements and the Liberty Protection Safeguards will not apply.
Emergency deprivation of liberty
The Liberty Protection Safeguards propose that the consideration of a deprivation of liberty must occur before any arrangements are put in to place and not afterwards. However, in cases where this is not possible, such as to enable life-sustaining treatment or to prevent a serious deterioration in someone’s condition, there would be authority to deprive someone of their liberty on an emergency basis.
What does this mean for me?
The main changes being proposed by the Liberty Protection Safeguards are in relation to how a deprivation of liberty is authorised and, therefore, will mainly affect the bodies responsible for authorising the deprivation.
A person who is deprived of their liberty will retain the right to a representative (in the form of an advocate or appropriate person) and will also retain the right to challenge their deprivation in the Court of Protection (although we may see this change to a Tribunal system in the future). Any arrangements that are to be put in place, unless in an emergency situation, will have to be authorised in advance, rather than afterwards, which should mean greater clarity in deprivation of liberty situations. Families and friends must also be consulted before an authorisation can be given.
As we stated at the beginning, the report is 272 pages long and so this blog is only to give an outline of some of the proposed changes. Should you want any advice or assistance in relation to deprivation of liberty, please do not hesitate to contact our Mental Capacity Team on 01872 272 457.
The full report