It covers the following:
1. Overview
2. When should the deprivation of liberty provisions be relied upon?
3. Requesting an authorisation
4. Six assessments
5. Relevant person's representative
6. Action following decision
7. Reviewing and challenging
8. Appeal to Court of Protection
9. Black and minority ethnic issues
10. Further information
Part II of the Mental Health Act 2007 (MHA 2007) made amendments to the Mental Capacity Act 2005 (MCA) by the introduction of deprivation of liberty safeguards (previously referred to as "Bournewood" safeguards). These came into force on 1 April 2009.
The aim of the amendments to the MCA is to remedy the "gap" identified by the case of HL v UK (App No 45508/99, 5 October 2004), otherwise known as Bournewood after the hospital at the centre of the case. In HL v UK, the European Court of Human Rights (ECtHR) ruled that a man diagnosed with autism was deprived of his liberty and that this had been in breach of Article 5 of the European Convention on Human Rights (ECHR). Deprivation of liberty was not defined. The Court merely confirmed that it was different from restriction of liberty and said that the difference was one of degree or intensity. As originally drafted, the MCA allowed restrictions to be placed upon the liberty of people lacking capacity. The amendments set out a new procedure in England and Wales for depriving people lacking capacity of their liberty in certain circumstances.
New sections 4A and 4B are inserted into the MCA by the MHA 2007. Section 4A allows for a person to be deprived of his or her liberty if:
A Code of Practice to supplement the main MCA Code of Practice was issued by the Lord Chancellor in August 2008. This gives further information on how the new deprivation of liberty provisions should operate in practice and contains guidance intended for use by people exercising functions under these provisions.
The deprivation of liberty provisions apply to people aged 18 or over who have a disorder or disability of the mind, who lack the capacity to give their consent to plans made for their care and who are deprived of their liberty within the meaning of Article 5 ECHR despite not being subject to formal detention under the Mental Health Act 1983 (MHA 1983).
The provisions cover hospitals (NHS or private) and care homes registered under the Care Standards Act 2000 and such deprivation will be unlawful unless the institution obtains an authorisation under the new provisions. In other settings, the deprivation will be unlawful unless the Court of Protection has made an order. Not all admissions to hospitals and care homes involving a person who lacks capacity to decide whether to be admitted will require an authorisation. According to the Code of Practice, the new provisions exist only to provide a proper legal process and suitable safeguards in circumstances where deprivation of liberty is an unavoidable necessity in a person's own best interests. Every effort should be made to prevent deprivation of liberty becoming unavoidable.
Under the provisions, a body managing a care home or hospital (the "managing authority") must identify every person incapable of consenting to admission who is, or is at risk of being, deprived of his or her liberty. For each "relevant person" the managing authority must apply to a "supervisory body" for a standard authorisation for depriving that person of his or her liberty. For NHS hospitals, the managing authority will be the NHS body responsible for the running of the hospital; for a private hospital or a care home it will be the person registered, or required to be registered, under Part 2 of the Care Standards Act 2000 in respect of the institution. The identity of the supervisory body depends on whether the institution is a care home or hospital, where it is based - England or Wales - and who is commissioning the relevant person's care and treatment. Where the person is in hospital, the supervisory body will be a Primary Care Trust (PCT) or for Wales, a Local Health Board or the National Assembly. Where the person is in a care home, it will be the local authority for the area in which the person is ordinarily resident or, if the person is not ordinarily resident in the area of a local authority, the area in which the care home is situated.
The managing authority must request a standard authorisation if it appears likely that a resident is accommodated in circumstances that amount to a deprivation of liberty or it appears that this will be the case at some time during the next 28 days. In the meantime, an urgent authorisation may be issued by the hospital or care home itself if certain criteria are met (see below). A request must also be made for a standard authorisation even in cases where a resident is moving from a different establishment and a standard authorisation already exists in respect of that placement. The new managing authority must request the new standard authorisation before the move takes place although, again, there is provision for the new managing authority to make an urgent authorisation if the move has to take place so urgently that it is not possible to obtain a standard authorisation. As has been noted, the ECtHR did not define "deprivation of liberty" and whether someone has been deprived of liberty depends on the particular circumstances of the case. The Code of Practice provides guidance on what factors might amount to deprivation of liberty based on decisions of the ECtHR to date.
The Government's original proposals where amended during the passing of the MHA 2007 to allow a third party, who is concerned that there is an unauthorised deprivation of liberty taking place, to apply to the supervisory body to assess whether the person is deprived of liberty. If the outcome of this assessment is that there is an unauthorised deprivation of liberty, then the full assessment process must be completed as if an authorisation had originally been applied for.
The deprivation of liberty provisions will only apply to people 18 or over who have a disorder or disability of the mind, who lack the capacity to give their consent to plans made for their care and who are deprived of their liberty within the meaning of Article 5 ECHR despite not being subject to formal detention under the MHA 1983. Even where the provisions do apply, an authorisation can only be granted where it is:
An authorisation must not conflict with a valid decision by an attorney or Court of Protection appointed deputy and may not be sought for giving treatment in a hospital where the MHA 1983 could be used instead, if there is any evidence that the person objects or would object. In order to ensure that the deprivation of liberty provisions apply and that the criteria are met the supervisory body must obtain six written assessments of the relevant person. These relate to age, mental health, mental capacity, best interests, eligibility and objections.
The age of the person will have to be established to ensure that the deprivation of liberty provisions apply. The person undertaking the age assessment could be a person conducting one or more of the other assessments.
This is to confirm that the person has been diagnosed as having a mental disorder within the meaning of the MHA 1983. This assessment must be carried out by a doctor.
The capacity of the person to make a decision as to whether they should be accommodated in the relevant hospital or care home will need to be assessed. Sections 1 to 3 MCA and chapter 4 of the Code of Practice to the MCA will be relevant to this assessment. It is likely to be undertaken by a doctor but Regulations allow for other appropriately qualified professionals to perform the assessment, such as social workers, nurses and occupational therapists.
This involves two stages. It must first be established whether deprivation of liberty is occurring, or is going to occur. If so, the second stage is to assess whether it is in the best interests of the person to be deprived of liberty, whether it is necessary for the person to be so deprived in order to prevent harm to themselves, and also whether the detention is a proportionate response to the likelihood of the person suffering harm and the seriousness of that harm. If deprivation of liberty is not occurring and not going to occur then there is no need for this second part of the assessment to be undertaken.
The best interests assessor will take into account the views of friends, family members, informal carers and professionals involved in the person's care. If the person is unbefriended, an Independent Mental Capacity Advocate (IMCA) will be appointed to support and represent them during assessment (see below). Regulations specify that the best interests assessment must be undertaken by an approved mental health professional (AMHP), social worker, nurse, occupational therapist or chartered psychologist with appropriate skills.
If the best interests assessment supports deprivation of liberty in the care home or hospital, the assessor should state for how long any authorisation should be given, with a maximum period of 12 months. The assessor can also recommend conditions to be attached to the authorisation, for example concerning contact with family members. Where the assessor concludes that the best interests requirement is not met but the person is being deprived of her or his liberty, a statement to that effect must be included in the assessment report.
It must be confirmed that the person is not detained under the MHA 1983 or subject to a conflicting requirement under that Act such as being required to reside somewhere else under guardianship, for example. If the proposed authorisation relates to deprivation of liberty in a hospital, wholly or partly for the purpose of treatment of mental disorder, the assessment will have to establish that there is no evidence that the person objects or would object to mental health treatment. If the person is unable to state their objection, their behaviour, wishes, feelings, views, beliefs and values (present and past) should be taken into account. If there is reason to think that, if able to do so, the person would object, he or she should be taken to be objecting. If the assessment concludes that the person is not eligible but the best interests assessment concludes that deprivation of liberty is required, it may be appropriate to use the MHA 1983. The eligibility assessment must be carried out either by a mental health assessor who is also a section 12 approved doctor or a best interests assessor who is also an AMHP.
It must be ascertained whether an authorisation would conflict with a refusal on behalf of a person who lacks capacity to consent. A "refusal" for deprivation of liberty purposes includes a valid advance decision relating to some or all of the treatment that the person would receive if an authorisation was granted. It also includes a valid decision by an attorney or Court of Protection appointed deputy. The "no refusals" assessment can be undertaken by a person conducting one or more of the other assessments.
All assessments must be completed within 21 days from the date the supervisory body receives the request from a managing authority. Where an urgent authorisation is in force, the assessments will have to be completed before that authorisation expires. Any "equivalent assessment" already made may be used instead of obtaining a fresh assessment. An equivalent assessment is one carried out in the previous 12 months irrespective of whether it was made in respect of a deprivation of liberty authorisation, as long as it meets all the necessary requirements and the supervisory body is satisfied that there is no reason why it should no longer be accurate. There is no time limit on the use of an age assessment.
Regulations also set out who can carry out the particular assessments and the training and qualifications requirements. There must be a minimum of two assessors and the mental health and best interests assessments have to be carried out by different people. It is permissible for the best interests assessor to be an employee of the supervisory body or managing authority but they must not otherwise be involved in the person's care. Neither must the best interests assessor be on the staff of any care home or hospital where the relevant person is, or would be, residing. There are also bars on the assessor having a financial interest in the care of the person being assessed and being related to the person or someone else with a financial interest in the person's care.
It is acceptable for the supervisory body and managing authority to be the same, for example where a local authority owns the care home where the person is, or will be, residing. However, in this situation, the best interests assessor cannot be an employee of the supervisory body or managing authority.
A "relevant person's representative" must be appointed by the supervisory body when a standard authorisation is granted. The role of the representative is to keep in touch with the relevant person and to represent and support them in all matters relating to the authorisation. The representative may request a review or make an application to the Court of Protection (see below). Representatives must be aged 18 or over, be willing to be appointed and be able to keep in touch with the relevant person. They must not be prevented by ill health from carrying out the role and must be someone independent; they cannot be engaged in providing care and treatment for the relevant person in a professional capacity or for remuneration.
During the best interests assessment, the assessor has to consider whether it is possible to recommend a representative. If the person being assessed has capacity to do so, they must be invited to select their representative and provided that person is eligible, the best interests assessor must recommend them. If the relevant person lacks the relevant capacity, the person to be recommended may be selected by an attorney or court appointed deputy with the appropriate authority. If neither the person nor an attorney or deputy make a selection then the best interests assessor must consider whether they can identify someone to act. If more than one person is identified the person who selected them must rank them in order of appropriateness.
The supervisory body appoints the person recommended by the best interests assessor (or the first choice) to become the relevant person's representative if he or she is willing. Although the best interests assessor should make recommendations about whom the representative should be, the appointment cannot take place unless and until an authorisation is given. If there is no one, the supervisory body must instruct an IMCA to represent the relevant person.
The Code sets out a number of situations in which the appointment of a relevant person's representative will terminate. Rather controversially, the supervisory body may terminate an appointment, for example if it considers that the representative may not be keeping in touch, although the Code states that the supervising body should contact the representative to clarify the position before terminating the appointment.
If any assessment concludes that the person does not meet the criteria, the supervisory body must turn down the request. The assessment process should be stopped as soon as it appears that any one or more of the qualifying requirements are not met. The supervisory body must notify the managing authority, the relevant person, any IMCA involved and every interested person consulted by the best interests assessor. The managing authority must ensure that it does not deprive a person of their liberty without an authorisation and the organisation which commissions the care will need to decide if any action is needed, bearing in mind the reasons for the authorisation being refused. If, for example, the best interests assessor concludes that there is no deprivation of liberty within the meaning of Article 5 then no action is likely to be needed. However, if the best interests assessor concludes that the proposed deprivation of liberty is not in the person's best interests, the care plan may need changing to avoid such a deprivation.
If all criteria are met, the supervisory body must grant the authorisation and specify its duration. A person must be deprived of liberty for the shortest time necessary to protect them from harm. The time period of an authorisation will be set on a case-by-case basis; the assessor will look at the person's circumstances and the likelihood of change and make a recommendation, which is based on the person's best interests. This must be no longer than recommended by the best interests assessor and for a maximum of 12 months. The Code states that for the maximum period to apply, the best interests assessor will need to be confident that there is unlikely to be a change in the person's circumstances, which would affect the authorisation within the 12 month timescale.
The authorisation must be in writing, confirm the purpose for deprivation of liberty and state why the supervisory body considers the criteria to be met. It must also set out any conditions attached to the authorisation, such as any steps to be taken in order to maintain family contact or meet cultural or other needs, and the managing authority must ensure that these are complied with. The managing authority must take such steps as are practicable to ensure that the person concerned understands the effect of the authorisation, the right to request a review and the right to make an application to the Court of Protection in connection with the giving of the authorisation. This information should also be made available to the person's representative. There is a power to make regulations reducing the maximum length of standard deprivation of liberty authorisations, if evidence that it is necessary to do so arises from future monitoring of the safeguards.
If the managing authority considers that deprivation of liberty will need to continue after the authorisation ends, it must request a further standard authorisation to begin immediately after the expiry of the existing authorisation. There is no limit on how far in advance of expiry a renewal application may be made. The timing will have to balance the need to allow enough time for all the required assessments to be undertaken against the need for meaningful assessments of the circumstances as they are likely to be at the time of the proposed expiry. The process for renewal is effectively the same as for the original authorisation.
An urgent authorisation for deprivation of liberty may be given for a maximum of seven days and be extended, on one occasion only and in exceptional circumstances, for up to a further seven days. An extension is granted by the supervisory body but the initial urgent authorisation is granted to itself by the managing authority. It may do so where a request for a standard authorisation is required but it believes that the need for a person to be deprived of liberty is so urgent that it is appropriate to begin the deprivation either before the request is made or before the request is dealt with. The supervisory body may only grant an extension where it appears that a request for a standard authorisation has been made, there are exceptional reasons why it has not yet been possible to make a decision and continued deprivation of liberty is essential while the request is dealt with. Any urgent authorisation terminates as soon as the managing authority is notified by the supervisory body that a standard authorisation will not be granted.
Review of authorisations
The managing authority will be under a duty to monitor each person's case so that it can request a review if circumstances change. The supervisory body can be asked to undertake a review by the hospital or care home, or by the relevant person or their representative, on the grounds that certain circumstances have changed. It must carry out a review if asked by any of these parties and may do so at any other time. The supervisory body may need to arrange for new assessments to be undertaken in respect of any criteria affected by a change of circumstances. The outcome may be that the authorisation is terminated, the conditions are varied, or there is a change to the reasons that the person meets the criteria. The review process is set out in considerable detail in the Code. There are separate review arrangements in cases where the eligibility requirement ceases to be met for a short period of time to allow a period of detention under the MHA 1983. Here, the supervisory body may suspend the authorisation upon notification by the managing authority and if the person becomes eligible again within 28 days the suspension may be removed. At the expiry of the 28 day period the authorisation will cease to have effect if the managing authority has not notified the supervisory body that the person is eligible again.
The relevant person or their representative has a right of appeal to the Court of Protection, at any time, against the decision of the supervising body. Any other person may apply to the Court for leave to appeal. Legal aid is available for appeals, subject to the means and merits test. The Court may make an order which varies or terminates a standard or urgent authorisation or which directs the body which granted the authorisation to vary or terminate it.
The Code states that care should be taken to ensure that the deprivation of liberty provisions are not operated in a manner that discriminates against particular racial or ethnic groups. However, the guidance afforded is rather general in nature. As one might expect, it states that the required assessments should take account of the cultural, racial and ethnic background of the relevant person, as should decisions about the appointment of IMCAs or relevant person's representatives. The Code also states that interpreters should be available to help assessors communicate with the relevant person and people with an interest in their care and treatment, and that information should be made available in other languages where necessary.
This legal briefing relates to the law of England and Wales in force at the time of writing. It is a brief outline of the law and is not a substitute for detailed advice.
For further information about the work of Mind's legal unit please refer to this introductory page.
For more detailed advice on any of the issues discussed in this briefing you should take advice from a solicitor specialising in this area of the law. Details of where to seek specialist advice can be obtained from the Law Society (www.lawsociety.org.uk, telephone 0870 606 2555) or from Community Legal Advice (www.communitylegaladvice.org.uk, telephone 0845 345 4345). Alternatively, you could contact your local Law Centre or Citizens Advice Bureau, who may be able to help.
Michael Konstam
Mind Legal Unit
15-19 Broadway
Stratford
London
E15 4BQ
April 2009