May 2020: Coronavirus / COVID-19
It is older people and those with existing long-term health conditions who are likely to be most at risk from COVID-19 and who are also more likely to need their freedoms protected by the Mental Capacity Act (MCA) 2005. The Coronavirus Act has not made any changes to the MCA, although guidance in relation to Deprivation of Liberty Safeguards has been published; see Deprivation of Liberty Safeguards (DoLS) during the Coronavirus (COVID-19) Pandemic chapter.
Unresolved conflicts / best interest decisions must still be escalated to the Court of Protection.
Department of Health Advice Note (28 March 2014) (now Department of Health and Social Care)
Please note: Legislation is currently progressing through Parliament to amend the current Deprivation of Liberty Safeguards. This chapter will be amended once the legislation comes into force.
- 1. Deprivation of Liberty
- 2. Acid Test for Deprivation of Liberty
- 3. Identifying Deprivation of Liberty: Care Providers
- 4. Authorising Deprivation of Liberty
- 5. Patients in Intensive Care
- 6. Domestic Settings: Supported Living Arrangements
- 7. Objections
- 8. Relevant Person’s Representative
- 9. Reviews
- 10. Alerting to Unlawful Deprivation of Liberty
1. Deprivation of Liberty
Coronavirus / COVID-19
Deprivation of Liberty Safeguards (DoLS) protect the human rights of people who lack capacity to consent to care or treatment in a hospital or registered care home, when – in their best interests – they receive care that amounts to a deprivation of liberty (as defined by Article 5, Right to Liberty, Human Rights Act 1998).
DoLS is an amendment to the Mental Capacity Act 2005 (MCA), as introduced by the Mental Health Act 2007.
The Supreme Court held that a deprivation of liberty can also occur in domestic / home type settings where the State is responsible for imposing such arrangements. This may include a placement in a supported living arrangement in the community. These must be authorised by the Court of Protection.
There is a difference between deprivation of liberty (which is unlawful, unless authorised) and restrictions on an individual’s freedom of movement.
1.1 Restrictions and restraint
Restrictions of movement (if in accordance with the principles and guidance of the MCA) can be lawfully carried out in someone’s best interest to prevent harm. This includes use of physical restraint where that is proportionate to the risk of harm to the person and in line with best practice.
Neither the MCA nor DoLS can be used to justify the use of restraint for the protection of members of staff or other service users or patients.
Examples of restraint and restriction include:
- using locks or keypads to prevent a person leaving a specific area;
- administration of certain medication, for example to calm a person;
- requiring a person to be supervised when outside;
- restricting contact with family and friends, including if they could harm the person;
- physical intervention to stop someone from doing something which could harm themselves;
- removing items from a person which could harm them;
- holding a person so they can be given care or treatment;
- using bedrails, wheelchair straps, and splints;
- requiring close supervision in the home;
- the person having to stay somewhere they do not want;
- the person having to stay somewhere their family does not want.
2. Acid Test for Deprivation of Liberty
The Supreme Court clarified (P v Cheshire West and Chester Council and P&Q v Surrey County Council, March 2014) that there is a deprivation of liberty where the person:
- is under continuous supervision and control; and
- is not free to leave;
- lacks capacity to consent to these arrangements; and
- whose confinement is the responsibility of the State.
The Court held that factors not relevant to determining whether there is a deprivation of liberty include:
- the person’s compliance or lack of objection;
- the reason or purpose behind a particular placement; and
- the extent to which it enables them to live a relatively normal life for someone with their level of disability.
This test is far broader than those set by previous judgements, so that disabled people should not face a tougher standard for deprivation of liberty than people who are not disabled.
This ruling has implications for practice. Advice from the then Department of Health, 2014 states that:
‘Relevant Staff should be aware of the following areas:
- Mental Capacity Act principles: the five principles and specifically “the least restrictive” principle (see Mental Capacity);
- restrictions and restraint: when designing and implementing new care and treatment plans for individuals lacking capacity, be alert to any restrictions and restraint which may be of a degree or intensity that mean an individual is being, or is likely to be, deprived of their liberty (following the acid test supplied by the Supreme Court);
- least restrictive alternative: where a potential deprivation of liberty is identified, a full exploration of the alternative ways of providing the care and/ or treatment should be undertaken, in order to identify any less restrictive ways of providing that care which will avoid a deprivation of liberty.
A Court of Protection judgement – Birmingham City Council v D (January 29, 2016) – widens the acid test to apply to 16 and 17 year olds who lack capacity. It also widens the accountability of the State in relation to the acid test, to apply to all those persons who may be deprived of their liberty in the community that the State has a duty to authorise. This does not just apply to persons who are in receipt of a package of care or an assessment, but anyone “who lacks capacity to decide on their place of care and residence, is under continuous supervision and control and is not free to leave.” This judgement, therefore, widens the acid test to include purely private arrangements.
3. Identifying Deprivation of Liberty: Care Providers
Care providers do not have to be experts about what is and is not a deprivation of liberty, but need to be able to recognise when a person might be deprived of their liberty by applying the acid test and take the required action by applying for an authorisation to the supervisory body (see 4.2 The supervisory body).
Final decisions about whether a person is being deprived of their liberty are made by the Courts.
It is crucial that hospitals and care homes recognise when they may be depriving a patient of their liberty, and are therefore breaching the law. They should also consider if the Mental Health Act 1983 is being used inappropriately to keep a patient in hospital, when the patient should, instead, be restrained.
If an organisation breaches a person’s human rights by unlawfully depriving them of their liberty, it could result in legal action being taken, including a court declaration that the organisation has acted unlawfully and breached the adult’s human rights, a claim for compensation, negative press attention and remedial action taken by commissioners and regulators.
An assessment must be made as to whether the living arrangements made for a person who lacks capacity amount to a deprivation of liberty. If so, the deprivation has to be authorised either by:
- the Deprivation of Liberty Safeguards (for hospitals / care homes); or
- the Court of Protection (for domestic settings such as supported living arrangements).
The deprivation must be subject to regular independent checks.
4. Authorising Deprivation of Liberty
The managing authority manages the care of the adult concerned.
Deprivation of Liberty Safeguards (DoLS) only apply to adults in a care home, hospital setting or supported living arrangement including where there are plans to move a person to a care home or hospital where they may be deprived of their liberty.
Where a managing authority thinks it needs to deprive someone of their liberty under the acid test (see Section 2, Acid Test for Deprivation of Liberty), it has to request the authorisation from a supervisory body. It can do this up to 28 days in advance of when it plans to deprive the adult of their liberty.
4.2 The supervisory body
The supervisory body supervises the process for assessment and signs off the final order.
The local authority where the person is ordinarily resident is the supervisory body for care homes (see Ordinary Residence). This will usually be the local authority area in which the care home is situated, unless the person is funded by a different local authority. The local authority will be the supervisory body for hospitals.
4.3 The assessment process: care home providers
The managing authority must fill out a form requesting a standard authorisation (see Department of Health and Social Care). This should be sent to the supervisory body, which has 21 days in which to decide whether the adult can be deprived of their liberty.
Before a local authority, as the supervising authority, can grant an authorisation they will arrange the following assessments:
- mental health assessment: to confirm whether the person has an impairment / disturbance in the mind or brain;
- eligibility assessment: to confirm the person’s existing or potential status under the Mental Health Act, and whether it would conflict with a DoLS authorisation;
- mental capacity assessment: carried out by either the Mental Health or Best Interest Assessor to determine the person’s capacity to consent to the care proposed;
- best interest assessment: to confirm whether deprivation of liberty is occurring, whether it could be avoided, and whether it is in the person’s best interest. They will also recommend, how long the authorisation should last and who should act as a person’s representative throughout the period of authorisation;
- age assessment: to confirm the person is at least 18 years of age;
- no refusals assessment: to confirm whether there is any valid advanced decision which would conflict with the authorisation, or a person with a valid and registered Lasting Power of Attorney with authority over welfare decisions.
An Independent Mental Capacity Advocate may also be appointed during the assessment process if required.
If any of the above conditions are not met, deprivation of liberty cannot be authorised. This may mean the care home or hospital has to change its care plan.
If all the conditions are fulfilled, the supervisory body must authorise the deprivation of liberty, for up to one year. The supervisory body must inform the adult and the managing authority in writing.
The restrictions should cease as soon as the adult no longer requires them; they do not have to be in place for the full period of the authorisation.
The supervisory body can set certain conditions on the authorisation, which must be fulfilled by the managing authority. At the end of the authorisation period, if it is believed the adult still needs to be deprived of their liberty, the managing authority must request another authorisation.
If it is believed an adult needs to be deprived of their liberty before the supervisory body can respond to a standard request, the managing authority can use an urgent authorisation. The managing authority can deprive a person of their liberty for up to seven days using an urgent authorisation. It can only be further extended (up to another seven days) if the supervisory body agrees to such a request from the managing authority (see Department of Health and Social Care forms).
When using an urgent authorisation the managing authority must also request a standard authorisation. The managing authority must reasonably believe a standard authorisation would be granted when using an urgent authorisation.
Before granting an urgent authorisation, the managing authority should try to speak to the family, friends and carers of the person. Information they provide may assist in preventing the adult being deprived of their liberty. Efforts to contact family and friends and any discussions had with them should be documented in the adult’s case records.
4.5 Authorisation in the community
Applications to authorise a deprivation of liberty in the community can be made to the Court of Protection(contact the local authority’s legal department for more details). In most cases the authorisation is a paper based application that should not require a court hearing.
The Court wants each person who is deprived of their liberty in the community to have a representative to represent their wishes and feelings, to ensure there is independent scrutiny of the local authority’s care and support plan and the application to authorise a deprivation of liberty in the community.
5. Patients in Intensive Care
The judgement in R (Ferreira) v HM Senior Coroner for Inner South London held that for patients in intensive care they are not necessarily deprived of their liberty as per the acid test in Cheshire West, as the facts in the two cases differed. The effect of this judgement is that even if a patient in intensive care appears to be deprived of their liberty, they will not be said to be so if the primary condition they are being treated for is a physical condition even if there is an underlying mental disorder and they are an inpatient in intensive care.
“There is in general no need in the case of physical illness for a person of unsound mind to have the benefit of safeguards against deprivation of liberty where the treatment is given in good faith and is materially the same treatment as would be given to a person of sound mind with the same physical illness.” (Judge Lady Justice Arden)
She also held however that there may be some circumstances where a deprivation of liberty arises and needs to be authorised. In NHS Trust I v G  for example, a hospital sought authorisation to deprive a pregnant woman of her liberty. The order prevented her from leaving the delivery suite and authorised invasive medical treatment such as a caesarean section.
Any treatment, therefore, for a primary condition which is a physical condition will not constitute a deprivation of liberty where the same treatment would be given to a patient who had capacity. This case is however subject to appeal to the Supreme Court. In such circumstances, staff should always take advice from their legal department.
6. Domestic Settings: Supported Living Arrangements
The Supreme Court has held that a deprivation of liberty can occur in domestic settings where the State is responsible for imposing such arrangements. This will include 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 that must be authorised by the Court of Protection.
A judgement by Mr Justice Baker Royal Courts of Justice February 2015 ruled that in all cases where a person lacks capacity, a DoLS assessment has been completed and the relevant person objects to their placement, a referral must be made to the Court of Protection under the Human Rights Act.
This would be done by the Relevant Person’s Representative (RPR) (see Section 7. Relevant Person’s Representative) but if this does not happen the local authority should take action to make the referral themselves.
Practice lessons from the judgement include:
- plan in advance: care should be taken to ensure that a DoLS assessment is completed prior to the move of the relevant person into residential accommodation. There should be very few exceptions to this rule. DoLS assessments should be completed in the case of ‘respite’ care if it is likely that this will become permanent either prior to the placement or with urgency after the placement is started;
- RPR – conflict of interest: care should be taken that the person appointed as the RPR is willing to make a referral to the Court of Protection if the relevant person objects to their placement. This may be difficult if the RPR is a family member who has a personal interest in the relevant persons placement. In this case a paid representative should be appointed;
- local authority duty: the local authority has a duty to check that the RPR meets all the criteria and, if not, to take action to rectify this. They should make resources available to support Independent Mental Capacity Advocates (IMCAs);
- challenge to placement: where the relevant person is challenging their placement, action should be taken speedily to refer to Court of Protection.
Click here to view the judgement: AJ (Deprivation of Liberty Safeguards).
8. Relevant Person’s Representative
Everyone who is subject to a deprivation of liberty authorisation will be appointed a representative, who must maintain contact with them in person, and represent and support them in all related matters, including requesting a review or applying to the Court of Protection to present a challenge to a DoLS authorisation.
If there is no family member, friend, or informal carer suitable to be the person’s representative, the DoLS office will appoint a paid representative. Their name should be recorded in the person’s health and social care records.
They have the right to request the advice and support of an IMCA (see Independent Mental Capacity Advocate Service).
In Re KT & others, which was heard before the Court of Protection, Mr Justice Charles approved the use of general visitors to act as Rule 3A Representatives when there is no one else – such as family members or advocates – available to act for the person who is the subject of the proceedings. General visitors are commissioned by the Court of Protection to visit the person and others involved in the case, and report back their findings. Appointing a general visitor safeguards the rights of the person in the proceedings.
Over 300 such cases currently with the Court of Protection could have their stay lifted with the appointment of such a court visitor, if there are no other Rule 3A Representatives available. This should clear the backlog of cases before the Court.
The care home / hospital must monitor and review the adult’s care needs on a regular basis, and report any change in need or circumstances that would affect the deprivation of liberty authorisation or any attached conditions. The home / hospital must request a DoLS review if:
- the adult (who is the ‘relevant person’) no longer meets any qualifying requirements;
- the reasons they meet the qualifying requirements have changed;
- it would be appropriate to add, amend or delete a condition placed on the authorisation due to a change in the adult’s situation;
- the adult or their representative has requested a DoLS review, which they are entitled to do at any time.
The local authority will commission assessors to carry out a review of an authorisation when statutory conditions are met. Statutory DoLS reviews do not replace health or social care reviews.
10. Alerting to Unlawful Deprivation of Liberty
If a person (professional or otherwise) suspects a person is being deprived of their liberty under the acid test (see Section 2, Acid Test for Deprivation of Liberty) and it has not been authorised, they should first discuss it with the care home manager / hospital ward manager.
If the care home / hospital agrees the care plan involves deprivation of liberty, they should be encouraged to make a request for authorisation. Everyone should be satisfied the care plan contains the least restrictive option available to keep the person safe, and it is in the person’s best interest.
If the care home / hospital does not agree to make a request for a DoLS authorisation, the concerned person should approach the local authority, as the supervising authority, to discuss the situation and report the unlawful deprivation.