Deprivation of Liberty Safeguards
As many of you will know, the Mental Capacity (Amendment) Bill started its journey through Parliament in July 2018. The purpose of the Bill is to replace the DoLS with a new system, provisionally called the "Liberty Protection Safeguards" or LPS. You can follow the progress of the Bill here and some of the debates are televised live on the Parliament TV channel here.
Click here for an interview with Tim Spencer-Lane of the Law Commission, in which he outlines the main changes as of 17th December 2018. This article was first published on Lexis®PSL Private Client on 17 December 2018.
There is no certainty yet as to when (if at all) the Bill will be passed by Parliament. And even when it is passed, presumably there will be some delay before it is implemented, in order to give everyone time to adjust.
As soon as the Bill is passed we will start delivering training on the LPS (or whatever they end up being called). But there is no point in doing so now, because the situation is so fluid.
In the meantime, the DoLS must continue to be used, and therefore we will continue to deliver DoLS training.
Deprivation of Liberty Safeguards, commonly known as "DoLS", were introduced into England and Wales in April 2009. They are an addition to the Mental Capacity Act 2005. So the whole of the Mental Capacity Act, including the Code of Practice, applies to DoLS.
DoLS really applies only to a small minority of the adult population of England and Wales. These are some of the most vulnerable people in our society because they are people who find it very difficult to make many - if any - decisions about their own lives. They are the people who need to be protected in some way - either from their own behaviour, or from the behaviour of someone else - but who do not meet the criteria for being sectioned under the Mental Health Act.
The interpretation of "deprivation of liberty" has been substantially altered by the ruling of the UK Supreme Court on 19th March 2014. See the items below for more information.
Here are three common dilemmas:
- Is it a deprivation of liberty to lock the door of a care/nursing home?
- Is it a deprivation of liberty to prevent a service user’s relatives from visiting him/her?
- Is it a deprivation of liberty to deny a service user permission to stay with friends for the weekend?
What do you think?
Here are our answers, which as always have to be read with caution, as each situation is unique:
Firstly, if the service user has capacity to accept whatever rules or restrictions are in place, then it's not a deprivation. The deprivation only occurs when the individual does not have the capacity to accept these rules.
- It's not a deprivation of liberty as such to lock the door of a care/nursing home. People often lock the door of their own homes, as much to keep other people from entering as to stop people from leaving. What matters is how you deal with a resident of the care/nursing home who might want to go through the locked door and outside on their own. If the care/nursing home has taken a decision that a particular resident must not be allowed to leave the premises, at any time, for any reason, then that probably is a deprivation of that resident's liberty, for which a DoL authorisation would be needed.
- This has more to do with Article 8 of the Human Rights Act (Right to Privacy and Family Life). So it's probably not, in the strictest sense, a breach of the person's liberty.
- The answer is similar to dilemma number 1. It depends on how you would deal with the situation should it arise. If the professionals are determined that the service user should not go now, nor at any point in the foreseeable future, then yes it probably is a deprivation of the service user's liberty, for which a DoL authorisation would be needed.
But these are tricky issues, of course, which is why training is so helpful. We enable you to discuss issues that are relevant to your workplace, and so to ensure that you act within the law, for the benefit of staff and service users alike.
Summary of the Supreme Court’s ruling on Deprivation of Liberty, 19th March 2014
The Supreme Court, which is the UK’s highest court, gave a ruling on two cases on 19th March. The people involved in the cases were not linked in any way, but the issues were very similar, which is why they were heard together. Please note that all of our DoLS training takes account of these developments.
Brief summary of the circumstances
The “Cheshire West” case concerned a 39 year old man (“P”) who has learning disabilities, Cerebral Palsy and autism. Being incontinent he wears pads, which he regularly pulls off and puts in his mouth. To counteract this his carers obliged him to wear a full body suit.
The “MIG and MEG” case concerned two sisters, aged 18 and 17, who both have learning disabilities. MIG (also called “P”), the elder sister, was living with a foster mother. MEG (also called “Q”) had a milder disability and was living in an NHS facility. Both attended the same school, and both had a substantial amount of support to enable them to lead active lives. Both seemed reasonably happy with their living arrangements, and neither had tried to run away. However both MIG’s foster mother, and MEG’s NHS staff, had made it clear that they would restrain them, if they were to attempt to leave.
Court of Appeal rulings
The Court of Appeal had ruled that neither P, nor MIG nor MEG were being deprived of their liberty. It used the “relative normality” argument, ie that P, MIG and MEG should be seen against what might be considered “normal” for people like them, rather than for the general population.
Supreme Court ruling
The Supreme Court ruled that all three individuals were in fact being deprived of their liberty. It was a unanimous ruling (there are 7 Judges) in the case of P (Cheshire West), and a majority one in the cases of MIG and MEG. In particular the Supreme Court rejected the concept of “relative normality, saying that human rights are universal, so what constitutes a deprivation of liberty for one person must constitute a deprivation of liberty for another. The Supreme Court also gave a definition of what constitutes a deprivation of liberty. The phrase they have used is:
A person is deprived of his liberty if he is “under continuous supervision and control and is not free to leave”
This phrase actually comes from one of the original European Court of Human Rights rulings from the 1990s. In particular it was used in the well-known “Bournewood” case.
The significance of this ruling is that it pays no attention to whether P is objecting to what is happening. The “acid test” as it has been called, focuses on what is actually being done to P, not on P’s reaction to it. The question is whether P needs to have someone else’s permission to go out, to wear his own clothes etc, and if so that is a deprivation of P’s liberty irrespective of whether P objects or not.
It also focuses on the absolute nature of human rights. Deprivation of liberty is deprivation of liberty, whether it happens to you, me, a Supreme Court Judge, or someone with a learning disability.
Some useful links ...
- Please click here to watch Lady Hale delivering the Supreme Court's judgement in the Cheshire West and MIG and MEG cases on YouTube (yes, the Supreme Court really does have a YouTube channel!)
- Please click here to read the full Supreme Court judgement in te case of Cheshire West and MIG and MEG (42 pages)
- Please click here to see the Department of Health's guidance to health and social care professionals, issued 28th March 2014
- Please click here to see the CQC's guidance to care providers, issued 16th April 2014
- Please click here to see the guidance that has been issued by the Association of Directors of Adult Social Services (ADASS)
- Please click here to download the revised forms which were issued by the ADASS in November 2014, and which most Supervisory Bodies have now adopted (but you must check to make sure that that is the case with your own Supervisory Body)
- Please click here to download the Chief Coroner's guidance from December 2014 on why it used to be necessary to notify the Coroner's office when someone dies whilst subject to a Deprivation of Liberty Authorisation (very legalistic, so you may wish simply to jump to paragraphs 64 and 65!). Please note, this requirement was abolished on 3rd April 2017.
- Please click here to download a further guidance letter from the Department of Health which was issued in January 2015
- Please click here to read the Law Society guidance on DoLS which was issued in April 2015 (very extensive, and very helpful)
- Please click here to download guidance relating to applications which go directly to the Court of Protection, ie for residents of Supported Living schemes, Sheltered Housing, Shared Lives etc. These are sometimes known as "Community DoLS" or "Deprivation of Liberty in Community Settings". And click here to download the COPDOL11 form (last updated December 2017) which has to be used to make the application.
- Please click here to view a couple of videos on SCIE which help to explain how an application for Deprivation of Liberty might be considered
- Please click here to read the Law Commission's proposals (March 2017) on revamping DoLS completely, and amending the Mental Capacity Act
- Please click here to download a copy of the Deprivation of Liberty Safeguards Code of Practice (English language version)
- Please click here to download a copy of the Deprivation of Liberty Safeguards Code of Practice (Welsh language version)
- In July 2017 the Local Government Ombudsman produced a report into complaints it had investigated regarding the Mental Capacity Act and DoLS - click here to read it (only 22 pages!)
- Please click here to follow the progress of the Mental Capacity (Amendment) Bill, which is intended to replace the DOLS with a new scheme called the Liberty Protection Safeguards.