Deprivation of Liberty Safeguards

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The Mental Capacity Act Deprivation of Liberty Safeguards (formerly known as the Bournewood safeguards) were introduced into the Mental Capacity Act 2005 through the Mental Health Act 2007.

What is Deprivation of Liberty?
What are the Deprivation of Liberty Safeguards?
What are Authorities’ Duties under the Safeguards?
What should I do if I feel a person is being deprived of their liberty?
Who should I contact?

Some people who live in hospitals and care homes can’t make their own decisions about their care or treatment because they lack the mental capacity to do so. They need more care and protection than others to make sure they don’t suffer harm.

Sometimes, caring for and treating people who need extra protection may mean restricting their freedom. For instance, it might be necessary to stop a person from leaving the hospital or care home, or staff might have to make most of the choices for a person inside the care home.  If there are a lot of restrictions, it may be that the person is being deprived of their liberty.

Hospitals and care homes should always try to avoid this, but sometimes there is no alternative to deprive a person of their liberty because it is in their best interests.

The Deprivation of Liberty Safeguards are part of the Mental Capacity Act 2005 (amended by Mental Health Act 2007). It applies to anyone who:

• Is aged 18 or older
• Is suffering a disorder or disability of the mind
• Lacks the capacity to give consent to their care/treatment
• Is receiving care or treatment that might amount to a deprivation of liberty under Article 5 of the European Court of Human Rights.

If there is no alternative but to deprive such a person of their liberty, the new Deprivation of Liberty Safeguards say that a hospital or care home must apply to the supervisory body for authorisation. The supervisory body is the local authority or Primary Care Trust that commissions the service.

The Supervisory Body is responsible for commissioning the required assessments to determine whether the person concerned:

• comes under the deprivation of liberty safeguards
• is deprived of their liberty, and if so, whether it is in their best interests.

If the Supervisory Body authorises a deprivation of liberty, this will be for a limited time (up to a maximum of 12 months) and the Supervisory Body may put conditions in place to make sure the person’s welfare is safeguarded.

The Supervisory Body will also make sure that the person being deprived of their liberty has a ‘Representative’ who will keep in touch with the person, support them in all matters regarding the authorisation, and ask for a review of the authorisation when necessary. This Representative would usually be a family member or friend.  In the absence of anyone suitable, the Supervisory Body will arrange a paid advocate.

The Safeguards also allow people the right of appeal against a decision in a court of law.

Hospitals and Care Homes (these are called Managing Authorities) have a duty to:

• Provide care and treatment in ways that do not deprive a person of their liberty, or if this is impossible;
• Apply to the Supervisory Body for authorisation of the deprivation of liberty;
• Make an urgent authorisation (for 7 days) where a deprivation of liberty is already occurring.

The Council and the Primary Care Trust (these are called Supervisory Bodies) have a duty to:

• Assess any person for whom the Managing Authorities request a deprivation of liberty
• Authorise a deprivation if it is necessary in the best interests of a person to whom the Safeguards apply
• Set any necessary conditions to make sure the person’s care/treatment meets their needs in their best interests
• Set a time-scale for how long a deprivation can last
• Keep records of who is being deprived of their liberty.

• Discuss the issue with the hospital or care home. They may be able to change a person’s care or treatment to make sure the person is not being deprived of their liberty, or may be able to explain why a person is not actually deprived of their liberty.
• Request that the Supervisory Body reviews the person to see whether they are being deprived of their liberty. This request can be by telephone, fax or email.

The Supervisory bodies in the Borough of Kingston are the Royal Borough of Kingston and Kingston Primary Care Trust.

All urgent and standard referrals for the Royal Borough of Kingston and Kingston Primary Care Trust during normal working hours and at weekends and bank holidays should be sent to:

Adult Safeguarding and Deprivation of Liberty Team
Telephone: 020 8547 4735
Fax: 020 8547 6142
Email: adult.safeguarding@rbk.kingston.gov.uk

Please see the Managing Authority and Supervisory Body Checklists pages for guidance on the process for dealing with standard and urgent authorisations.