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Deprivation of Liberty Safeguards

The Deprivation of Liberty Safeguards was introduced specifically to prevent breaches of the European Convention on Human Rights (ECHR).  The purpose of the safeguards is to provide legal protection for those vulnerable people who are deprived of their liberty, and to provide a legal framework in which decisions can be challenged. 

 

When a person lacking capacity requires care or treatment that may amount to a Deprivation of that person’s liberty, the Managing Authority (Care home or Hospital) must apply to the relevant “supervisory body” (Primary Care Trust for Hospitals, and the Local Authority for care homes). Unless there is a Court of Protection decision, the Mental Capacity Act will not permit any detention without authorisation. Care homes and hospitals must adhere to the Code of Practice for the Deprivation of Liberty Safeguards which offers guidance to help the assessor ascertain whether a person is at risk of deprivation.   

 

In emergencies the Managing Body can give themselves an urgent authorisation lasting 7 days, while they apply for a standard authorisation (this may be extended for a further 7 days by the Supervisory Body in exceptional circumstances). On request for authorisation the supervisory body has 21 days to obtain the following 6 assessments. For Deprivation of Liberty to be agreed, the person will need to meet the criteria for all of these assessments.

 

  1. Age assessment –  Determines whether the person is 18 and above.
  2. Mental health assessment – The person has mental health needs. It is recommended that a qualified doctor completes.
  3. Mental capacity assessment - The person lacks capacity to decide.
  4. Eligibility assessment –  The person is eligible unless subject to the Mental Health Act (1983). 
  5. No refusals assessment –  To check whether the authorisation would conflict with a Donee or Deputy decision, or a valid and applicable Advance Decision made by the person. 
  6. Best Interest Assessment - The Best Interest Assessor should be trained, qualified, and skilled. Independent of the admissions/care planning process, the Best Interest Assessor is a key role within the process, and decides the duration of the authorisation. To determine the deprivation request, the Best Interests Assessor must seek the views of all appropriate people, and consider relevant needs assessment and care plans. The Best Interest Assessor may also recommend conditions to the authorisation.

 

The supervisory body must inform the hospital/care home in writing, and all relevant people of the decision, reasons for it, the time period, and any conditions.  This decision must be implemented by the care home or hospital who have a duty to ensure that the person (or representative) understand what the authorisation means, how they can apply to the Court of Protection, monitor change or request a review. 

 

The duration of any authorisation is decided case by case, by the Best Interests Assessor taking account of the circumstances, and the possibility of the circumstances changing. The maximum authorisation period is 12 months, and the process will need repeating to continue any further Deprivation of Liberty. 

 

A review may be carried out at any time during an authorisation if any of the involved parties recognise a change in the person’s circumstances, or the decision is challenged through the Court of Protection (Legal aid is available for application to the Court of Protection).  The review outcome may be to terminate the authorisation, vary the conditions attached, or change the reasons that the person meets the criteria.  All concerned parties must be informed of the outcome of a review.

 

If the best interest assessor determines that deprivation of liberty has already occurred, the supervisory body must inform relevant people of the unlawful detention, and find alternative ways to provide the required care. If the detention is to enable life sustaining treatment or necessary treatment to prevent a serious deterioration in the person's condition, but the legality is questioned, it will not be unlawful to detain the person while a Court of Protection decision is sought.

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