Deprivation of liberty and safeguarding
Sometimes it’s necessary to restrict a person’s liberty to help keep them safe and provide them with care or treatment. Where these restrictions mean that a person is under constant supervision and control and isn’t free to leave the place they're being cared for, they’re considered to be deprived of their liberty.
Deprivation of liberty doesn’t mean the care or treatment is bad or that the restrictions are inappropriate, it simply means that people need additional checks (called safeguards) to protect their human rights.
In England and Wales, the Mental Capacity Act 2005 has a framework called the deprivation of liberty safeguards for this purpose. Scotland and Northern Ireland are currently developing their own legislation.
About deprivation of liberty
A person (citizen) can be deprived of their liberty in various ways. Here, however, we’re focusing only on one particular situation, which is when they’re in a care home or hospital and they’re unable to consent to their residence for the purposes of care or treatment. It may then sometimes be necessary for healthcare professionals to make decisions that restrict or restrain their freedom. The Mental Capacity Act 2005 allows restraint and restrictions to be used, but only if they’re in a person’s best interests, and only if there is no less restrictive option available.
A person may still be deprived of their liberty even if they’re not objecting to their confinement, it’s in their best interests and the level of restriction is normal for a person with a similar condition.
Healthcare professionals must follow the deprivation of liberty safeguards when taking such decisions.
Note that, in settings other than care homes or hospitals, the Court of Protection should be asked if a person can be deprived of their liberty.
Deprivation of liberty safeguards
Deprivation of liberty safeguards are official checks that care homes and hospitals must make to ensure they’re acting in a person’s best interest.
They’re designed to:
- prevent vulnerable people being abused or mistreated
- protect people who are unable to consent to care or treatment
- provide independent assessments of a person’s mental capacity and what’s in their best interest
- ensure that the care given is the least restrictive option
- give them, or their friends and family, the right to challenge a decision
They apply in England and Wales (as part of the Mental Capacity Act), but not in Scotland or Northern Ireland.
Who do deprivation of liberty safeguards apply to and where?
The safeguards apply to people aged 18 or over, staying in a hospital or care home, who may not have the mental capacity to make decisions about their care. This could be because of a condition such as a learning disability or dementia.
Why are deprivation of liberty safeguards important to know about?
Deprivation of liberty safeguards don’t apply if you’re living with or caring for someone with a terminal illness at home. They’re only relevant if someone is unable to consent to care or treatment, for whatever reason, in a hospital or care home.
Being deprived of liberty doesn’t mean that the care is bad or inappropriate, simply that the person needs additional safeguards to protect their human rights.
What do deprivation of liberty safeguards do?
Before taking decisions that deprive a person of their liberty, care homes or hospitals must ask either a local council or health body (called the supervisory body) for permission through a standard or urgent authorisation process.
Before giving the authorisation, the supervisory body must be satisfied that the person doesn’t have mental capacity, that the proposed action is in that person’s best interests and there is no less restrictive option. The managing authority should tell the person’s family, friends, and carers that it has applied to authorise the deprivation of liberty, and they should be given the opportunity to give their views as part of the assessment.
If the supervisory body grants a standard authorisation, one of the most important safeguards is that the person has a relevant person’s representative (RPR) appointed to represent and support them as soon as possible. This is usually a family member or friend. They’re also entitled to an independent advocate (an IMCA) to help them understand the deprivation of liberty safeguards procedure, and how to organise a review or challenge.
The deprivation of liberty safeguards:
- give the person (or their representative) the right to challenge a deprivation of liberty through the Court of Protection
- provide a way for deprivation of liberty to be reviewed and monitored
- can only be used to authorise someone’s residence (not, for example, their treatment or contact with others)
If you're worried that a friend or relative is being deprived of their liberty unlawfully, you should bring this to the attention of the manager of the care home or hospital so it can either change their care or seek authorisation. If the care provider or hospital doesn’t take action promptly, then the local council can investigate. If no one is taking any action, a friend or a relative can apply directly to the Court of Protection for a review.
For more information and advice about how to challenge a deprivation of liberty, or how to make sure that safeguards are being properly applied, contact one of the organisations listed below.
- Age UK – deprivation of liberty factsheet
- Law Centre NI
- Mencap – advice and information about learning disability
- Mental Health Lawyers Association - find a lawyer
- Mind - Mental Capacity Act: Deprivation of Liberty Safeguards
- Office of the Public Guardian - supports and promotes decision-making for those who lack mental capacity or would like to plan for their future
- The Small Places – case studies and writing about deprivation of liberty and the Mental Capacity Act
- Social Care Institute for Excellence (SCIE) - At a glance 43: The Deprivation of Liberty Safeguards
- Social Care institute for Excellence (SCIE) – Mental Capacity Act Directory
- Mental Capacity Law and Policy – a website maintained by barrister, Alex Ruck Keene
- Court of Protection
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