In July 2018, the Government introduced, via the Mental Capacity (Amendment) Bill, a new proposed statutory regime for authorising the deprivation of liberty of incapacitated adults. This scheme – the Liberty Protection Safeguards (LPS) – will replace the Deprivation of Liberty Safeguards (DoLS) in their entirety. At the time of writing it is expected that the new regime will come into force in autumn 2020. The LPS will be accompanied by a code of practice. Please check here for updated information.
The case referred to below – Cheshire West – which sets an ‘acid test’ for the deprivation of liberty has been updated by subsequent case law – Ferreira. The Court of Appeal ruled that DoLS applications do not usually need to be made for patients who lack capacity and are being treated in ICU. Outside of ICU, the Court held that, in relation to the provision of ‘urgent medical care’, or ‘life-saving medical treatment’, ‘there is in general no need in the case of physical illness for a person of unsound mind to have the benefit of safeguards against the deprivation of liberty where the treatment is given in good faith and is materially the same treatment as would be given to a person of sound mind with the same physical illness.’
Deprivation of liberty
The Act makes it clear that people who lack the ability to consent to treatment should be cared for in accordance with the ‘less-restrictive principle’ (see card 3).
As outlined in card 7, there will be times when this might involve imposing restrictions on a person’s liberty. There will be circumstances however in which appropriate and necessary care or treatment that is in an individual’s best interests can only be provided in circumstances that will amount to a ‘deprivation of liberty.’ Any such deprivation of liberty will only be lawful if it is authorised in accordance with procedures set out in the Deprivation of Liberty Safeguards (DoLS) which were added to the Mental Capacity Act by amendments introduced by the Mental Health Act (MHA) 2007.
This card gives a brief outline of relevant factors to take into account when assessing whether an individual is or might be deprived of liberty and outlines the procedure for seeking authorisation. Although individuals may be deprived of their liberty in a variety of settings, including domestic ones, this card focusses on deprivation of liberty in hospitals and care homes.
This is a complex area of law and practice and where doctors identify individuals who may be, or who may need to be, deprived of their liberty they should refer to local protocols, consult the more-detailed guidance listed earlier in this toolkit, or take appropriate legal advice.
For more information about deprivation of liberty, including updates and changes, see our Guidance on deprivation of liberty safeguards.
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 Act 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 Act.
When might it be appropriate to deprive a patient of their liberty?
The Mental Capacity Act Deprivation of Liberty code of practice states that depriving a patient of liberty may be justifiable if:
- it is in their best interests to protect them from harm
- it is a proportional response when compared with the harm faced by the person
- there is no less-restrictive alternative.
What constitutes a deprivation of liberty?
The concept of ‘deprivation of liberty’ is not straightforward. The Act does not provide a definition of ‘deprivation of liberty’, but refers instead to the meaning of Article 5 of the European Convention on Human Rights.
The Supreme Court judgment in Cheshire West in 2014 introduced an ‘acid test’ for what constitutes a deprivation of liberty for the purposes of Article 5. When considering whether an individual may be deprived of their liberty, health professionals should ask three key questions.
- Is the person subject to ‘continuous supervision and control’?
- Is the person ‘free to leave’?
- Does the person lack the capacity to consent to their care and treatment in those circumstances?
If the person is under continuous supervision and control and is not free to leave and lacks the capacity to consent to their care and treatment in those circumstances then the acid test is met. The individual is therefore deemed to be deprived of liberty under Article 5 and authorisation for the deprivation must be sought.
Continuous and complete supervision and control
When considering whether an individual is subject to ‘continuous and complete supervision and control’, it can be helpful to ask whether there is a care plan in place that means that those looking after the individual will be aware at any time:
- where the individual is
- what the individual will be doing, and
- what steps they will take if they cannot establish the above.
Non-negligible period of time
Case law has also established that for the purposes of Article 5 any deprivation of liberty must be for a ‘non-negligible’ period of time.
There is no definition of a ‘non-negligible’ period of time, but in general the more intense the measures of restraint and the greater the resistance or resentment of the individual, the shorter will be the period. The courts have regarded as little as forty minutes of intense restraint as amounting to a deprivation of liberty.
Free to leave
Whether a person is ‘free to leave’ will depend on whether he or she is free to come and go or to decide to live elsewhere or whether he or she would require permission. If permission is required, it is likely that he or she is not free to leave and therefore this part of the deprivation of liberty test has been satisfied.
Does the person have capacity to consent to that deprivation of liberty?
In addressing this question the attention has to be on the specific circumstances of the individual’s care and treatment. The question must be: does the individual have the capacity to consent to the specified care and treatment in the concrete circumstances that are proposed or in place?
Factors not relevant to a deprivation of liberty
The purposes for which care and treatment are being provided are not relevant to whether a person is being deprived of their liberty, nor are the nature of any disabilities they may have. Similarly, a person’s compliance or lack of objection are not relevant, nor is the agreement of family or carers, the appropriateness or ‘normality’ of the treatment or the lack of an alternative safe place for treatment.
How do you authorise a deprivation of liberty?
Where it is identified that an individual may be deprived of liberty in a care home or hospital and lacks the capacity to consent, that deprivation of liberty must be authorised under the Deprivation of Liberty Safeguards (DoLS). To do this the ‘managing authority’ of the hospital or care home has to apply to a ‘supervisory body’ – usually the local authority where the person lives.
There are two types of DoLS authorisation, standard and urgent.
After receiving an application for a standard authorisation, the supervisory body has to decide within 21 days whether the person can be deprived of their liberty. If the conditions are met, the supervisory body must authorise the deprivation of liberty and inform the person and managing authority in writing. It can be authorised for up to one year.
The person does not have to be deprived of liberty for the period of authorisation. The restrictions should stop as soon as they are no longer necessary.
There will be times when a person may need to be deprived of their liberty before a standard authorisation can be provided. In these situations the managing authority can itself issue urgent authorisation which can last up to seven days, with an option to extend it for a further seven days if the supervisory body is in agreement. When issuing an urgent authorisation the managing authority must also request a standard authorisation.
Card 8 (PDF)