1. THE DEPRIVATION OF LIBERTY SAFEGUARDS
Amendments to the Mental Capacity Act 2005

2. Deprivation of Liberty and the Mental Capacity Act
The Deprivation of Liberty safeguards are part of the Mental Capacity Act
They amend the Mental Capacity Act however…
Care and treatment must still adhere to the Mental Capacity Act
The Safeguards provide legal authority but only to detain the individual subject to certain strict criteria

3. Deprivation of Liberty Safeguards – care for those without capacity
Will affect
1.those lacking capacity to give informed consent to their care +
2. Where the nature of the care could be depriving them of their liberty +
3. Must be over 18
4. Cared for in a hospital or care home (Care Standards Act)

4. Deprivation of Liberty Safeguards
Deprivation of liberty must be authorised via a legal procedure
Assessment must establish eligibility criteria and best interest proportionate + no other viable alternative – 6 areas of assessment
Assessor can attach conditions to the authorisation including time period of authorisation
Maximum period of authorisation is 12mths
Person has right of appeal and a representative appointed

5. What is Deprivation of liberty?
Arises from the “Bournewood” case – a ECtHR case – Article 5.
HL had been deprived of his liberty unlawfully, because of a lack of a legal procedure which offered sufficient safeguards against arbitrary detention (5(1)) and speedy access to court (5 (4)) – Bournewood Trust were found to have exercised complete and effective control.
“The distinction between deprivation of and restriction upon liberty is merely one of degree or intensity and not one of nature or substance”
Therefore no definition
A serious matter to be used sparingly and avoided wherever possible

6. What is Deprivation of Liberty (cont)
Draft Code of Practice refers to a need to consider the combined impact of all restrictions – degree and intensity rather than nature or substance
The person is not or would not be allowed to leave the facility
no or little choice about their life within the care home or hospital
Prevented from maintaining contact with the outside world
Restraint may indicate the persons wishes being over ridden and need to consider if liberty is being deprived

7. A) Hospital or care home managers identify those at risk of deprivation of liberty & request authorisation from supervisory body
In an emergency hospital or care home can issue an urgent authorisation for 7 days while obtaining authorisation
B) Assessment commissioned by supervisory body. IMCA appointed for unbefriended
Age assessment
No Refusals assessment
Mental health assessment
Eligibility assessment
Mental capacity assessment
Best interest assessment
Authorisation expires and Managing authority requests further authorisation
All assessments support authorisation
Any assessment says no
E) Best interest assessor recommends person to be appointed as representative
C) Request for authorisation declined
D) Best interest assessor recommends period
Person or their representative appeals to Court of Protection which has powers to terminate authorisation or vary conditions
F) Authorisation is granted and persons representative appointed
G) Authorisation implemented by managing authority
Managing authority requests review because circumstances change
Person or their representative requests review
H) Review

8. Responsibilities in Deprivation of Liberty
Assessors
Carry out assessments
Managing Authority
Hospital or Care Home
Responsible for care and requesting an assessment of deprivation of liberty
Relevant Person
Person being deprived of liberty
Representative
Providing independent support
Family/Friends/Carers
Consulted, involved and provided with all information
Supervisory Body
PCT or LA
Responsible for assessing the need for and authorising deprivation of liberty
IMCA
Court of Protection

9. Age Assessment To establish if the relevant person is 18 or over
Anyone deemed to be appropriate

10. Mental Capacity Assessment
Purpose – To establish whether the relevant person lacks capacity to consent to the arrangements proposed for their care or treatment
Anyone eligible to act as a Mental Health Assessor or Best Interests Assessor

11. No Refusals Assessment
Purpose – To establish whether an authorisation for DoL would conflict with other existing authority for decision making for that person
Anybody that the Supervisory Body considers has the skills and experience to perform the role

12. Eligibility Assessment
Purpose – to establish whether the relevant person should be covered by the MHA 1983 of DoL under MCA 2005
Best Interests Assessor
Someone familiar with the Mental Health Act 1983

13. Mental Health Assessment
Purpose – Is the relevant person suffering from a mental disorder within the meaning of the MHA 1983
Doctor
Approved under Section 12 of MHA 1983 or Registered medical practitioner who has special experience in diagnosis and treatment of mental disorder
Completed appropriate MCA 2005 mental health assessor training
Doctors cannot be Best Interests Assessors

14. Best Interests Assessment
Purpose – to establish firstly whether DoL is occurring or is going to occur and if so whether it is in their best interests, it necessary to prevent harm to themselves and the DoL is proportionate to the likelihood and seriousness of the harm
AMHP; Social Worker, Nurse, Occupational Therapist, Psychologist:
With skills and experience required by the regulations
Has the required skills for the role
Has completed specific DoL Best Interests Assessor training
Suitability considering the circumstances of the case

15. Advocacy and deprivation of liberty
IMCA – is appointed where the person being assessed has no family or friends to consult with.
IMCA – Where family/friends are available and an IMCA is not instructed at point of assessment, where the appointed representative is an unpaid person, they may refer to an IMCA – issue specific

16. Purpose: To prevent unlawful deprivation of liberty
Person in need of care to prevent harm to themselves
Is it necessary to deprive them of their liberty?
Now?
Grant urgent authorisation
Yes
Apply to SB for standard authorisation
DoL Process
Purpose: To prevent unlawful deprivation of liberty
Is application appropriate? No
Reject application
Yes
Conduct assessments
Do all assessments support DoL? No
Reject application
Yes
Grant authorisation
Appoint a representative
Monitor and Review DoL

17. Summary responsibilities – Supervisory Bodies
Receive application for Deprivation of Liberty
Ensure communication between bodies
Determine if request is appropriate - assess
Appoint to the roles - assessors and IMCA
Obtain written assessments to ensure relevant criteria are met
Grant authorisation for specific period or decline based on the assessment outcomes
Attach conditions where appropriate
Communicate decision and support alternative care planning where relevant
Appoint representative
Inform in writing relevant parties of authorisation & appeals procedure
Review Deprivation of Liberty authorisation
End the authorisation
Governance of duty

18. Summary responsibilities – Managing Authorities
Identify and minimise Deprivation of Liberty
Determine if application for DoL is required in advance
Grant urgent authorisation where required
Submit application for DoL
Ensure communication between relevant bodies
Support assessment – access to information, consideration of appropriate representative
Provide alternative care where authorisation is not granted
Comply with any conditions attached to authorisation
Monitor and review DoL authorisation including the representatives invovlement
End deprivation of liberty
Inform relevant parties of authorisation & appeals procedure
Review Deprivation of Liberty authorisation
End the authorisation
Governance/recording

19. Further information Sylvia.manson@eastmidlands.csip.nhs.uk