Mental Capacity Act 2005

A general guide on how the Mental Capacity Act affects you and how you can plan ahead for when you no longer have the mental capacity to make decisions for yourself. Applies to England and Wales.

Deprivation of liberty

What is a deprivation of liberty?

Your liberty can only be taken away from you in very specific situations. The Mental Capacity Act calls this a deprivation of liberty. It should only be used if it is the least restrictive way of keeping you safe or making sure you have the right medical treatment.

  • Being deprived of liberty means that you are kept on a locked ward or in a locked room, or you are not free to go anywhere without permission or close supervision, and you are continuously supervised. This is against the law unless it is done under the rules set out in the Mental Capacity Act.
  • This may happen if you need to go into a care home or hospital to get care or treatment, but you don't have the capacity to make decisions about this yourself. 
  • If you are living at home, you can also be deprived of your liberty lawfully if the Court of Protection makes an order allowing it.

Your liberty can only be taken away under the Mental Capacity Act if:

  • Deprivations of liberty are monitored by the Care Quality Commission (England) and the Healthcare Inspectorate Wales (Wales). They write regular reports on the use of deprivations of liberty, but they would not be able to investigate individual cases on your behalf.

Example

Jon has memory problems that have got worse over time, and lives in a care home. Because of his condition, he is less aware of danger than a person without the condition. He is unable to cross a busy road on his own and does not understand that it is dangerous to cross a nearby railway line. 

Jon needs constant supervision and also has to be stopped from going out on his own. This usually involves keeping him in a locked room and physically stopping him if he tries to go out on his own. To keep him safe, this has to be done on a regular basis. 

It would be unlawful for the staff to do this without using the deprivation of liberty safeguards, so they should apply to the local authority for permission, called a 'standard authorisation', as soon as they realise it is necessary.

Is a deprivation of liberty the same as being detained under the Mental Health Act?

No, it is not the same as being detained under the Mental Health Act 1983 – you do not need to have treatment for a mental health problem in order to be deprived of your liberty.

  • You can be deprived of your liberty to keep you safe, or for treatment of other health problems. 
  • If you need to be detained mainly for treatment for a mental health problem, this will normally be done under the Mental Health Act 1983. If you are already detained under the Mental Health Act, the health professionals cannot at the same time apply the deprivation of liberty procedure under the Mental Capacity Act.

What are the deprivation of liberty safeguards (DoLS)?

The Mental Capacity Act says that your liberty can only be taken away by health professionals if they use the procedures called the Deprivation of Liberty Safeguards (DoLS), or if the Court of Protection has granted permission. This protects you from having your liberty taken away without good reason.

Key elements of the Deprivation of Liberty Safeguards

  • It is in your best interests to take away your liberty. This means it is necessary to prevent harm to you, and the detention is proportionate, looking at how likely you are to suffer harm, and how serious the harm might be.
  • It has become an unavoidable necessity to take away your liberty. Every effort should be made to prevent it from becoming a necessity.
  • DoLS can only be used to deprive you of your liberty at a care home or hospital. It cannot be used to take you from your home to a care home or hospital – this would need an order from the Court of Protection.
  • However, a deprivation of liberty will not be used every time someone is admitted to a hospital or care home if they lack capacity to decide whether to be admitted.
  • It should only be used if it is the least restrictive way of keeping you safe or making sure you have the right medical treatment. For example, you may need to be kept away from places or situations where your safety could be at risk, such as railway lines or busy roads. Or you may be given medical treatment in your best interests and without being able to consent to it.

How does the authorisation process work?

Before you can be lawfully deprived of your liberty, the care home or hospital where you are staying must get permission from the relevant authority (which would be a local authority, or if you are in hospital in Wales it can also be a local Health Board or the National Assembly). This is called applying for an authorisation.

Before the deprivation of liberty is authorised, you will have six assessments, which may take place at the same time. You cannot have your liberty taken away unless all the six assessments are met.

Six assessments

1. An age assessment, to make sure that you are aged 18 or over.

2. A mental health assessment to confirm that you have been diagnosed with a ‘mental disorder’ within the meaning of the Mental Health Act.

3. A mental capacity assessment to see whether you have capacity to decide where your accommodation should be. If you have, you should not be deprived of your liberty and the authorisation procedure should not go ahead.

4. A best interests assessment to see whether you are being, or are going to be, deprived of your liberty and whether it is in your best interests. This should take account of your values and any views you have expressed in the past, and the views of your friends, family, informal carers and any professionals involved in your care.

5. An eligibility assessment to confirm that you are not detained under the Mental Health Act 1983 or subject to a requirement that would conflict with the Deprivation of Liberty Safeguards. This includes being required to live somewhere else under Mental Health Act guardianship.

6. A ‘no refusals’ assessment to make sure that the deprivation of liberty does not conflict with any advance decision you have made, or the decision of an attorney under a lasting power of attorney or a deputy appointed by the Court of Protection.

  • Length of the authorisation: this depends on your personal circumstances and how likely it is these circumstances might change, though the maximum time allowed is 12 months. The assessor will make a recommendation based on your best interests.
  • Renewing the authorisation: your hospital or care home can request a new authorisation to begin as soon as your existing authorisation has run out.
  • Urgent authorisations: these can be granted where the need for your deprivation of liberty is urgent. They can be granted for a maximum of 7 days, and it can be extended once for a further 7 days by the supervisory body.

Flowchart: How does the authorisation process work?

Deprivation Of Liberty

Is a deprivation of liberty authorisation always granted?

Your deprivation of liberty authorisation will not be granted unless all the conditions in the six assessments are met.

The authorisation must also:                 

  • be in writing  
  • include the purpose of depriving you of liberty
  • state why the supervisory body considers that you meet the legal conditions for using a deprivation of liberty
  • contain any conditions attached to the authorisation, such as steps to maintain contact with your family or meet your cultural needs.

The care home or hospital where you are must do what it can to make sure that you and your relevant person's representative understand:

  • the effect of the authorisation
  • your right to request a review
  • your right to apply to the Court of Protection.

If your deprivation of liberty authorisation is not granted, the supervisory body must inform:

Your care plan may need changing to avoid a deprivation of liberty.

Can I challenge the authorisation in court?

If you think you shouldn’t have your liberty deprived, you can challenge it by:

  • asking for a review of the authorisation, or
  • appealing to the Court of Protection.

Reviewing the authorisation

  • The supervisory body must review the deprivation of liberty authorisation if requested to do so by you, the hospital or care home where you are staying, or your relevant person’s representative.
  • You may have to go through the six assessments again if your circumstances have changed.
  • The outcome may be that: the deprivation of liberty authorisation is ended, the conditions attached to it are changed, or you still meet the conditions for deprivation of liberty, possibly for a different reason.
  • The supervisory body may also carry out a review at other times.
  • You can ask the local authority for an independent mental capacity advocate to help you with this, if you need someone’s help.

Appealing to the Court of Protection

  • You or your relevant person’s representative have a right to appeal to the Court of Protection against a decision of the supervisory body. Any other person can appeal to the court, but they will need the court’s permission first.
  • Legal aid is available for you or your relevant person's representative to have legal representation at the appeal.
  • The Court may tell the hospital or care home where you are being deprived of your liberty that the authorisation (standard or urgent) is at an end, or it may tell the body that granted the authorisation to change it or end it. 

Read more about the Court of Protection.

Flowchart: How can I challenge the authorisation?

Deprivation Of Liberty Updated

Where can I get support?

You can get support from:

Relevant person's representative

  • This is someone (such as a family member) who can keep in touch with you, represent you, and support you in all matters connected with the deprivation of liberty authorisation. You can choose who you want to be your relevant person's representative if you have the capacity to do so.
  • If you do not have capacity to choose your relevant person's representative, they may be chosen by your attorney acting under an lasting power of attorney, a deputy appointed by the Court of Protection, or the best interests assessor – who will try to identify a suitable person.
  • The identity of the relevant person's representative will be considered during your best interests assessment. If you have nominated someone you think will be willing to act as your relevant person's representative, the best interests assessor must recommend them.
  • The supervisory body can remove a person from acting as your relevant person's representative if it considers that they may not be keeping in touch with you, although it should contact the relevant person's representative to clarify the situation before removing them.

What if I am in my own home or in supported living?

The Deprivation of Liberty Safeguards can only be used if you are in care homes and hospitals. If you are deprived of your liberty anywhere else an application must be made to the Court of Protection. This should be made by the local authority or Clinical Commissioning Group (CCG) that made the arrangements for your care.

How does the application process work?

The local authority or CCG applying for an authorisation must provide the court with:

  • Information about your care arrangements and the reason why any restrictions are necessary.
  • A capacity assessment showing that you lack capacity to make decisions about your care.
  • A medical assessment with your diagnosis.
  • Your wishes and feelings about your care.
  • The views of anyone interested in your welfare, such as family members.

The Court of Protection will usually appoint a litigation friend or representative to act for you. They can object to the arrangements for your care if they don’t think they are in your best interests.

The Court of Protection will authorise the deprivation of liberty if it is satisfied that:

  • You lack capacity to make the decision yourself.
  • The arrangements for your care are in your best interests.

The authorisation will last for up to a year and will need to go back to court before it ends. It can be returned to court earlier if:

  • The arrangements become more restrictive.
  • You regain capacity.
  • Someone believes that the arrangements are no longer in your best interests.

How can I challenge the authorisation?

You should be involved in the application as far as possible and able to give your views to the court. Once the authorisation is made you or your representative will need to apply to court if you want to change the order. 

 


This information was published in November 2017. We will revise it in 2019.


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