This is from an article published in the BMJ of 15th January, but was long and detailed enough to get its own post. Deprivation of liberty and the various legal frameworks thereof form a brainmeltingly complicated subject of which it seems I am nevertheless expected to have at least some kind of basic grasp. The following is my understanding of the issue after busting my brain on the article for many a long hour, but I must stress that it is nothing more than that, that I am not remotely an expert, and that nobody should use these notes as anything other than a rough guideline and certainly not as any kind of definitive guidance on the subject. If you want to know more, the original article is online here, the code of practice concerning deprivation of liberty safeguards is online here, the revised code of practice for the Mental Health Act is here and the code of practice for the Mental Capacity Act is here.
What is deprivation of liberty?
A (deliberately) poorly-defined term for the cumulative effect of various restrictions placed by professionals on a person’s actions and/or freedom to come and go, when the effect of these is marked.
If restrictions do not have too severe an overall effect on a patient and/or are very short-term (i.e. keeping a delirious person in hospital for long enough to get some antibiotics into them to stop them being delirious so that they can make an informed choice) then they may count as restriction of liberty, rather than deprivation of liberty. The distinction is important because restriction of liberty is legally allowed in people with mental impairment sufficient to affect their ability to make decisions (under the Mental Capacity Act), but deprivation of liberty is not. However, although the distinction is important, it’s also not clearly defined (again, deliberately – each case must be considered carefully on its merits). Therefore, if you are concerned that a particular situation may be either crossing the blurred line into deprivation of liberty or in potential danger of doing so, the correct practice is to call a multidisciplinary meeting – preferably including the patient’s family and/or carers, if at all possible – to discuss the issue. At this, you should:
- consider whether the controls being applied on the patient’s liberty amount to deprivation of liberty
- consider whether they are necessary, and whether there might be other ways to deal with the situation (explaining carefully to the patient, having a family member sit with the patient at distressed times to calm him or her, etc.)
- weigh up the arguments for and against this being a deprivation of liberty
- document all of the above and also write down the reasons why the meeting has reached whatever conclusion it has on the subject
It is also important to note that duration of the controls on the patient’s life is an important factor in making the distinction between restriction of liberty and deprivation of liberty. Controls on a patient’s liberty that may be justifiable in the extreme short-term as restriction of liberty, or under common law (i.e. taking an acutely ill patient to hospital and/or keeping them in the A&E department in an emergency situation), may become deprivation of liberty if applied for days on end. So, be alert to the possibility that a few more days with no other change may be sufficient to transform the situation into one of deprivation of liberty, and consider when it would be appropriate to review the situation (or whether it would be appropriate to apply for a standard deprivation of liberty authorisation now, if the situation is likely to be long-term).
How do I go about deciding whether the controls on someone’s life might amount to deprivation of liberty?
Consider such factors as:
- Are professionals exercising complete control over the patient’s care and movement?
- Does the control and supervision exercised lead to a loss of the patient’s autonomy?
- Are professionals controlling such issues as where the patient lives, how he/she is assessed and treated, and who he/she gets to see socially?
- Would this person be stopped from leaving if he/she made a meaningful attempt to do so?
- Are restraint and/or sedation being used to control the person?
If there have been requests from carers for the patient to be discharged to their care and these have been refused, this could also be significant.
How do I tell whether someone has capacity?
They need to be able to:
- understand the relevant information given
- retain it long enough to make a decision
- use or weigh it to make a decision
- communicate the decision
What should I do in a situation where a patient may be in danger of deprivation of liberty occuring?
Apart from common law in emergency situations, in order for deprivation of liberty to be legal you have to be acting either under the Mental Health Act or the deprivation of liberty safeguards. The Mental Health Act is your first port of call – if the deprivation of liberty is wholly or partly for the treatment of mental disorder, you have to be looking first at whether the MHA will cover the situation, and how to go about getting the patient sectioned, or whatever. (Further details on this weren’t covered by the article.)
If the MHA is not applicable AND the patient does not have capacity AND they are in a hospital or care home AND deprivation of their liberty is thought to be necessary after the kind of discussion described above, then what you need to do is apply for a deprivation of liberty authorisation. (All four of those conditions need to apply.)
Ideally, all of this will have been planned a little in advance (for example, in one of the case studies the article gave, the patient was in hospital and was insisting that he would not be discharged to a residential home even though it was clear that he would not cope at home) and you can apply for a standard deprivation of liberty authorisation. For this, the managing authority (the hospital or care home involved, in plain English) applies to the appropriate supervisory body:
- For care homes – the local authority
- For hospitals in England – the PCT
- For hospitals in Wales – the Welsh ministers or local health board
A standard deprivation of liberty authorisation can apply for up to a year, which, I assume, means that you have to keep renewing/reviewing it as appropriate.
Of course, the circumstances will often be too urgent to allow for you to get the standard deprivation of liberty of authorisation back in time. In those cases, at the same time as getting the application in for standard authorisation, the managing authority also has to grant an urgent deprivation of liberty authorisation, which they grant themselves and which is valid for up to seven days while the standard authorisation goes through.
What do I do if I come across a situation where a patient is being deprived of his/her liberty without the proper safeguards?
A timely one for me as I’ve just been reading ‘We Are All Made Of Glue’, in which an elderly woman is moved to a residential home without her consent and the friend who comes to visit her is told she can’t receive visitors. The appropriate action in this case, would be first to discuss with the managing authority (in this case, the care home manager), and then to raise the concerns that this may be illegal deprivation of liberty with the supervisory body (see above).
Given that in real life I’m going to be clueless about how to apply all this, whom should I approach for advice?
The links above will hopefully be helpful, but it’s also a good idea to talk to someone directly. Possible sources of help include
- Senior psychiatrist
- Duty approved mental health practitioner (the new name for approved social worker)
- Hospital legal team, for a hospitalised patient
- Local social services and/or PCT
- And, of course, my medical defence organisation.