Deprivation of Liberty Newsflash – Have you changed your approach?
If you haven’t changed your approach to Deprivation of Liberty since last week – now is the time!
Last week the Supreme Court (SC) decision, usually referred to as Cheshire West  set out a fresh approach to determining whether individuals are deprived of liberty . It is essential that, if you are responsible for the care of any person (P) who would not be allowed to leave your care, you review P’s position with regard to deprivation of liberty. It is unlawful for P to be deprived of liberty without proper authorisation being in place. Government Guidance is awaited and may be available by the end of March.
We recently sent out the SC’s approach to deprivation of liberty in a Newsflash on 19/03/14, the day of the judgment. It was clear that the intention of the majority of the SC was to extend the safeguard of independent scrutiny as far as they could. In the words of Lady Hale “A gilded cage is still a cage” and “I believe that we should err on the side of caution in deciding what constitutes a deprivation of liberty…”
To appreciate how far this went consider the position of MIG, one of the people at the centre of the case: She was living with foster parents in an ordinary family home; attended education; went on trips; had good family contact; was not on any medication; she had never attempted to leave by herself but, if she did, her foster mother would restrain her.
The SC said MIG was deprived of her liberty.
The Right Approach
It is vital to have the right mindset to maximise the prospects of correctly applying the law. The application of independent scrutiny is not a criticism. It is intended to protect both P and those caring for P. It is intended to be inclusive. If you start looking for reasons why it does not apply you may well end up acting unlawfully.
It is critical to separate the question of deprivation of liberty (“Is it a deprivation of liberty?”) from whether that is necessary, appropriate, in P’s best interests or other such arguments (“Why are we doing it?”). The former determines whether the situation needs to be authorised the latter whether it will be.
Some pointers for application
The following analysis is necessarily general. There is still no clear division between restrictions on and deprivation of, liberty. The “concrete situation” of each P matters but the key elements are:
- Constant supervision and control
- Not free to leave (it does not matter whether P is co-operative or not, or trying to leave, or saying they want to leave. The question is whether P would be free to leave if P did want to).
Who might be covered?
- If P is in hospital for treatment of a physical condition and would not be allowed to leave if P wanted to and objection would be made if relatives tried to remove P it is hard to see how P is not deprived of liberty. This is now likely to cover all dementia patients and many patients with LD. Such patients can be authorised under the Safeguards.
- More widely (and controversially), patients who are PVS or minimally conscious or sedated on ITU might be deprived of liberty , those patients may well not qualify for the Deprivation of Liberty Safeguards in the Mental Capacity Act 2005 (see below) because they do not have a mental disorder (within the meaning of the Mental Health Act 1983), an application to Court would then be necessary.
- If P is in a hospital for treatment of a mental disorder there is a potential choice of statutory frameworks to authorise the deprivation of liberty and provide the independent scrutiny favoured by the SC. Although the same tests apply to determine whether a deprivation of liberty exists, it could be authorised either by sectioning P under the Mental Health Act 1983 or through the Deprivation of Liberty Safeguards in the Mental Capacity Act . Where the purpose of the deprivation of liberty is to treat mental disorder consideration of the Mental Health Act is a logical starting point. Certainly, if P is in any way un-cooperative, or would be likely to be objecting if P had capacity, use of the Mental Health Act is preferable. This is an area for careful consideration of the options but what is important is that some measure to authorise the deprivation of liberty is put in place.
- If P is in a care home and would not be allowed to leave if P wanted to there is a strong possibility of deprivation of liberty. It may not be a deprivation of liberty if P is not supervised or monitored all the time and has the facility to make decisions about what to do and when, that are not subject to agreement by others.
- In the community, there could well still be a deprivation of liberty even if P is at home and even if some of P’s care is provided by family if the arrangements are funded or supported by the Local Authority or NHS and if P is, in fact, constantly supervised and controlled.
The Golden Rule
If a situation might be a deprivation of liberty take steps either to seek authorisation under the Deprivation of Liberty Safeguards or, if applicable, through detention under the Mental Health Act or seek advice on whether a Court Order is needed. Someone else is then making the final decision on whether there is a deprivation of liberty or not.
- Is P already subject to detention under the Mental Health Act or could P be detained under the Mental Health Act? The deprivation of liberty is authorised by the Mental Health Act or careful consideration must be given to whether the Mental Health Act should be used.
- Does P have the capacity to decide whether or not to stay in your care for the purpose of that care? There is no deprivation of liberty if P has the capacity to consent and does consent. This may not be easy to determine and mere lack of objection should not be taken as either indicating capacity or consent. Note: if P has capacity and does not consent to remaining in your care there is no way to make P stay other than use of the Mental Health Act.
That depends on whether P is potentially eligible for authorisation of deprivation of liberty under the Deprivation of Liberty Safeguards (“the Safeguards”). The basic entry criteria for the Safeguards are that P must:
- Be aged 18 or over
- Be in a hospital or care home.
If either of those do not apply the Safeguards cannot be used. There are other criteria but they are less clear cut and will be considered during the assessment process.
If the Safeguards could apply make an application to the relevant Local Authority and consider an urgent authorisation. It may be prudent to liaise with the Local Authority at an early stage if you anticipate a number of applications will be made.
Note: if P is not eligible for the Safeguards that does not mean no authorisation is needed. You will have to move to the next step.
The Court of Protection can authorise deprivation of liberty and is the place to turn to if the Safeguards do not apply or there is uncertainty on any other issue. You will need legal support. While an application is being made it is lawful to continue a deprivation of liberty if it is necessary in order to provide life sustaining treatment or carry out any act necessary to prevent a serious deterioration in P’s condition.
- If you know P is coming in to your care and may be deprived of liberty the authorisation should be in place before P arrives.
- Authorisations under the Mental Capacity Act are NOT transferrable. Those given under the Safeguards only cover that particular hospital or care home. Court Orders only cover what they say they cover.
The “road map” has changed and all previous approaches need to be reconsidered. Organisations must protect their service users and themselves by making applications for authorisation where they are now needed.
The potential consequences of not dealing with these issues will be explored more fully following publication of the Government’s Guidance.
However, do not allow uncertainty or delay around authorisations stop you from delivering necessary care and treatment.
Note: following feedback about children under 16 possibly leading to wrong conclusions, this part of the Newsflash is being revisited.
 P v Cheshire West and Chester Council; P and Q v Surrey County Council  UKSC 19. A copy of the judgment can be found here: http://supremecourt.uk/decided-cases/docs/UKSC_2012_0068_Judgment.pdf
 The Government’s Guidance may assist on this point and/or it may be necessary for there to be at least one application to Court.
 See AM v South London and Maudsley NHS Foundation Trust  UKUT 0365 (ACC)
 At some point this is likely to be argued about in Court but it is a reasonable rule for now.
 It may be possible to justify acting in an emergency but it is important to seek further advice.
 Mental Capacity Act 2005 (as amended) and Code of Practice: Deprivation of Liberty