In 2009, an amendment to the Mental Capacity Act (2005) for England and Wales (MCA) came into effect which introduced the Deprivation of Liberty Safeguards (DoLS). These are designed to ensure that appropriate safeguards are in place to protect adults deprived of their liberty.
Although definitive guidance on what amounts to a deprivation of liberty in every circumstance is not available, this guidance is designed as a prompt to help health professionals identify factors that may be relevant when assessing whether an adult may be deprived of liberty. We also hope that it might enable health professionals to consider whether there may be less restrictive ways of providing the necessary care and treatment.
Key points for health professionals
- The fact that care or treatment amounts to a deprivation of liberty does not mean that it is inappropriate. It means only that it reaches a certain threshold of restriction such that authorisation is required.
- Identifying and authorising a deprivation of liberty should not substitute for or impede the delivery of the highest standard of care.
- The focus of decision-making must remain the best interests of the patient.
- Nothing in the MCA or DoLS is designed to prevent the provision of timely and appropriate medical treatment. In an emergency, treatment must not be delayed for the purposes of identifying whether a deprivation of liberty has taken place, or seeking its subsequent authorisation.
- An authorisation for a deprivation of liberty does not provide legal authority for treatment. Treatment for adults unable to consent must be given on the basis of an assessment of their best interests or in accordance with another legal provision of the MCA.
At a glance
Where an individual is being provided with care and treatment in circumstances that amount to a deprivation of liberty, that deprivation has to be authorised. Factors that indicate that an individual may be deprived of liberty include:
- That the person is confined to a restricted place for a non-negligible period of time
- That the person does not have the capacity to consent to their care and treatment in those circumstances
- That the person is subject to ‘continuous and complete supervision and control’, and
- That the person is not free to leave.
In the course of caring for adults with impaired decision-making capacity, there may be times when it will be both necessary and in their best interests to deprive them of their liberty for a period of time. In 2009, an amendment to the Mental Capacity Act (2005) for England and Wales (MCA) came into effect which introduced the Deprivation of Liberty Safeguards (DoLS). These are designed to ensure that appropriate safeguards are in place to protect adults deprived of their liberty. They also provide a procedure for authorising any deprivation of liberty in care homes, hospitals and supported living arrangements either arranged by the NHS, commissioned by CCGs (Clinical Commissioning Groups) or provided privately.
The question of when a deprivation of liberty occurs, as opposed, for example, to a restriction on liberty, has been the subject of uncertainty. In March 2014 the UK Supreme Court handed down two judgments, now commonly referred to as Cheshire West, that address that question. Cheshire West has led to a considerable increase in the numbers of people considered to be deprived of their liberty. Drawing on Cheshire West and other legal cases, this guidance is designed to offer health professionals brief practical guidance to help them identify when individuals in their care may be deprived of their liberty and therefore application should be made for authorisation under DoLS, or, in some instances, the Court of Protection.
Some health professionals may find the legal concept of deprivation of liberty sits uncomfortably with their ordinary obligations to promote the best interests of their patients. It is important to emphasise that even if care or treatment amounts to a deprivation of liberty it does not follow that the care or treatment is inappropriate. It means only that it reaches a certain threshold of restriction such that authorisation is required.
Nothing in the MCA or DoLS is designed to prevent the provision of timely and appropriate medical treatment. In an emergency, treatment must not be delayed for the purposes of identifying whether a deprivation of liberty has taken place, or seeking its subsequent authorisation.
What Cheshire West has identified is that more care practices than had hitherto been thought will amount to a deprivation of liberty, and where they do, they require authorisation to make it lawful.
This is a very complex area of law and practice. Although Cheshire West provided some clarity, we recognise that there is still a degree of uncertainty. Definitive guidance on what amounts to a deprivation of liberty in every circumstance is not possible. This guidance seeks to provide a prompt to help health professionals identify the factors that are likely to be relevant when making such an assessment. We also hope that it might enable health professionals to consider whether there may be less restrictive ways of providing the necessary care and treatment.
More detailed information on deprivation of liberty is available from the Law Society – to which this guidance is indebted – and links are given at the end. 1 Ultimately, deprivation of liberty is a legal concept. In cases of genuine doubt it may be necessary to seek legal advice.
What this guidance does not cover
This guidance does not address the specific question of deprivation of liberty in psychiatric settings. Professionals working in these settings tend to be more familiar with, and more sensitive to, the need at times to detain people and to seek legal authority as appropriate. The complex interplay of mental health and mental capacity legislation, along with provisions for the care of informal patients, make this a particularly complex area of law and clinical practice and separate guidance is required.
In addition, given the current state of legal uncertainty, this guidance does not address questions relating to the deprivation of the liberty of a person in his or her own home. Where health professionals identify adults with impaired capacity who they have reason to believe may be being deprived of their liberty in their own home, they should discuss the matter with an appropriate adult safeguarding lead. This guidance refers solely to those aged 18 and over.
Legal position on deprivation of liberty
Deprivation of liberty in care homes
Deprivation of liberty in hospitals and hospices
Deprivation of liberty check-list
1. We would like to acknowledge our debt to the Law Society and its guidance on identifying a deprivation of liberty. The BMA has developed this guidance following requests from BMA members for brief guidance in this area.