Deprivation of Liberty Safeguards
What are the Deprivation of Liberty Safeguards?
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 Deprivation of Liberty Safeguards say that a hospital or care home must apply to the supervisory body for an authorisation. The supervisory body is the local authority 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
A minimum of two different people will carry out the assessment of 'best interests', if they agree that the deprivation of liberty is necessary an 'authorisation' is given to the care home or hospital by the Supervisory Body.
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.
Supreme Court judgement
On the 19 March 2014, the Supreme Court handed down its judgements in the cases of P vs Cheshire West and Chester Council and another and P and Q vs Surrey County Council.
The Supreme Court found that there is a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights in the following circumstances: 'The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements'.
The judgements suggest that the definition of a deprivation of liberty is wider than previously thought.
The Supreme Court held that a deprivation of liberty can occur in domestic settings where the State is responsible for imposing such arrangements. This includes a placement in a supported living arrangement in the community.
Where there is, or is likely to be, a deprivation of liberty in such placements, this situation is not covered by the safeguards and it must be authorised by the Court of Protection.