Deprivation of Liberty

There are only a limited number of times in which a person's liberty can be taken away from them, and this is defined as a deprivation of liberty in the Mental Capacity Act. This type of action should only be used if it is the least restrictive method of keeping a person safe or ensuring that they receive necessary treatment when required.

The following article explains deprivation of liberty more thoroughly, including who can be affected by this action, what it means for an individual and the authority that is issued for such action to be taken.

What does deprivation of liberty mean?

To be deprived of liberty means that a person is held in a locked ward or in a room which is locked and that their ability to leave and move around freely is restricted. People who have been deprived of their liberty are not allowed to leave or move around unless they have prior permission and are closely supervised. The only time that this action is legal is if the deprivation of liberty is authorised as per the guidelines of the Mental Capacity Act.

When can deprivation of liberty be used?

A person's liberty may be deprived if they need to move into a care home or are treated at a hospital, but they are unable to make decisions on their own due to their mental capacity. In some cases, individuals living at home may legally have their liberty deprived if an order is obtained from the Court of Protection.

It is only possible for deprivation of liberty to be carried out if:

• The individual concerned is at least 18 years old
• The person concerned does not have the mental capacity to make decisions relating to personal health matters and care
• Authorisation has been obtained from the local authority by a care home or hospital in which you are treated
• Deprivation of liberty safeguards have been implemented and strictly adhered to
• Permission has been awarded by the Court of Protection

The guidelines and implementation of deprivations of liberty are managed by the Care Quality Commission.

Does deprivation of liberty differ from being detained under the Mental health Act?

Being detained under the Mental Health Act is different to having your liberty deprived, primarily because there is no requirement for a person to receive treatment for a mental health illness in order for deprivation of liberty to be carried out. Deprivation of liberty can be used to protect a person's safety or in order for them to receive treatment for another health problem.

Individuals who need to be detained primarily for mental health treatment will usually have this done through the Mental Health Act 1983. Those who are already detained under the act will not receive deprivation of liberty at the same time.

Deprivation of Liberty Procedures

The Mental Capacity Act sets out that a person's liberty can only be deprived by health professionals if they follow the Deprivation of Liberty Safeguards or when the Court of Protection has given authority. This means that individuals are protected against their liberty being taken away unlawfully and without reasonable cause.

Before deprivation of liberty is arranged, the patient will receive six assessments, and the liberty cannot be taken away until all assessments are completed. The assessments consist of:

• Age – individuals are assessed to ensure that they are 18 or over
• Mental Health Assessment – A mental disorder diagnosis as per the Mental Health Act is confirmed
• Mental Capacity Assessment – The individual's capacity to make decisions about their living arrangements are assessed
• Best Interests – To confirm whether a deprivation of liberty is in the best interests of the individual. This will include an assessment of the person's values, family, friends and those involved in care plans.
• Eligibility – The fifth assessment confirms that the individual is not currently detained under the Mental health Act 1983.
• ‘No Refusals' Assessment – The final assessment confirms that a deprivation of liberty does not contravene any advance decision that has been made by the individual or any decisions which have been made by a power of attorney or Court of Protection.

Length of Deprivation of Liberty

The length of the deprivation of liberty depends upon the personal circumstances of the individual concerned and the likelihood of a change of circumstances. There is a maximum period of authorisation which is 12 months, though the term will be decided based on the best interests of the patient.

Deprivation of liberty permissions can be renewed if the hospital or care home think that this is necessary. For a renewal to be actionable, new authorisation must be requested immediately upon the existing authorisation running out.

Urgent authorisations may be granted if there is an extreme need. There is a maximum period of 7 days on an urgent authorisation, with the ability to extend by a further 7 days if agreed by the supervisory body.

Can a deprivation of liberty be appealed?

If deprivation of liberty is arranged and the patient believes that it is unjust, the decision can be challenged in the following ways:

• Requesting a review of the authorisation for deprivation
• Appealing to the Court of Protection

If a review of the authorisation is arranged, the supervising body for the authorisation, such as the hospital or care home, will review the patient's case again. The six-step assessment will be completed again to determine whether there have been any mistakes or changes to circumstances. If there have been, the authorisation will be removed or amended.

Alternatively, an appeal can be made to the Court of Protection by the patient or their representative. Others can make an appeal, but they are required to obtain the court's permission first. The Court has the authority to demand that the hospital or care home where the patient is being held to end the deprivation of liberty if it deems it necessary.