The Mental Capacity Act Deprivation of Liberty Safeguards (MCA DoLs)
This legislation is about ensuring vulnerable who lack capacity to consent are not deprived of their liberty unless it is in their best interests.
The Mental Capacity Act Deprivation of Liberty Safeguards are commonly referred to as 'DoLs'. They were introduced into the Mental Capacity Act (MCA) 2005 through the Mental Health Act 2007. DoLs provide protection for vulnerable people who are accommodated in hospitals or care homes in circumstances that amount to a deprivation of their liberty, and who lack the capacity to consent to the care or treatment they need. In such cases, DoLs provide a lawful way to deprive someone of their liberty, provided that this is in their own best interests or is necessary to keep them from harm.
The MCA DoLS were introduced to prevent breaches of the European Convention on Human Rights (ECHR) following the legal judgment given by the European Court of Human Rights (ECtHR) in the case of HL v United Kingdom, commonly referred to as the ‘Bournewood judgment’. This case concerned an autistic man (HL) with a learning disability, who lacked the capacity to decide whether he should be admitted to hospital for treatment. He was admitted to hospital on an informal basis under common law but was prevented from leaving the hospital with his carers. This decision was challenged by his carers and the ECtHR found there had been a breach of HL’s rights under the ECHR. The reasons given for the verdict were that:
- HL had been deprived of his liberty and the deprivation of liberty had not been in accordance with ‘a procedure prescribed by law’ and was, therefore, in breach of Article 5(1) of the ECHR
- there had been a contravention of Article 5(4) of the ECHR because HL had no means of applying quickly to a court to see if the deprivation of liberty was lawful.
Cheshire West ruling - when is a person deprived of their liberty?
In March 2014 the Supreme Court handed down its judgment in the case of "P v Cheshire West and Chester Council and another" and "P and Q v Surrey County Council".
Following this judgement, there are two key questions to ask when determining if an adult - who has been assessed as lacking capacity to consent to their care arrangements - is deprived of their liberty:
- Is the person subject to continuous supervision and control?
- Is the person free to leave?
The focus is not on the person's ability to express a desire to leave, but on what those with control over their care arrangements would do if they sought to leave. It is not relevant to apply the following to the application of the test:
- the person's compliance or lack of objection
- the relative normality of the placement (whatever the comparison made)
- the reason or purpose behind a particular placement.
The following list gives examples of steps taken which involve more than restraint and amount to a deprivation of liberty according to the Courts:
- Restraint is used, including sedation, to admit a person to an institution where that person is resisting admission.
- Staff exercise complete and effective control over the care and movement of a person for a significant period.
- Staff exercise control over assessments, treatment, contacts and residence.
- A decision has been taken by the institution that the person will not be released into the care of others, or permitted to live elsewhere, unless the staff in the institution consider it appropriate.
- A request by carers for a person to be discharged to their care is refused.
- The person is unable to maintain social contacts because of restrictions placed on their access to other people.
- The person loses autonomy because they are under continuous supervision and control.
This list is not exclusive.
Who can be lawfully deprived of their liberty under the MCA DoLs?
The MCA DoLs state that deprivation of liberty should be avoided whenever possible, and should only be authorised in cases where it is in the relevant person’s best interests and is the only way to keep them safe. It should be for as short a time as possible, and only for a particular treatment plan or course of action.
In order to be deprived of their liberty, a person must be staying in a hospital or care home, and must meet six qualifying requirements:
- the age requirement
- the no refusals requirement
- the mental capacity requirement
- the mental health requirement
- the eligibility requirement
- the best interests requirement.
Authorisation for deprivation of liberty
If all alternatives have been explored, and the hospital or care home believe it is necessary to deprive a person of their liberty in order to care for them safely, then strict processes must be followed. The managing authority (the registered manager of a care home or the NHS trust or authority that manages the hospital) is responsible for applying for an authorisation of deprivation of liberty for someone who lacks capacity to make their own arrangements for their care and well-being. The managing authority should do this either when someone is about to be admitted, or is already in hospital or the care home.
It is unlawful to deprive someone of their liberty without an authorisation in place. The application for a standard authorisation must be made in writing to a supervisory body - for care homes in England this would be the local authority, for hospitals it would be the relevant local NHS board.
If the supervisory body thinks that the application is appropriate, it must then commission an assessment to determine whether the qualifying criteria are met, and will either grant or refuse an authorisation as appropriate.
In an emergency, the management of the hospital or care home may grant itself an urgent authorisation, but only as long as it has applied for a standard authorisation at the same time. This urgent authorisation is usually valid for seven days, although the supervisory body may extend this for up to another seven days in some circumstances.
Deprivations of Liberty in Community settings
Currently, for those who lack capacity to consent to their care and accommodation arrangements and who live in the community, such as people in supported living or who live at home, a Deprivation of Liberty will need to be authorised by the Court of Protection rather than by a Local Authority. However this process can be very lengthy with some authorisations severely delayed.
If a case is contentious, for example the person may not agree with decisions about their care, but lacks the capacity to instruct a Solicitor, the court will appoint a Litigation Friend. A Litigation Friend can be a family member or friend however if nobody is willing, available or appropriate, an independent person such as advocate can be appointed. If there is a family dispute it is unlikely that a family member would be appointed.
A Litigation Friend must:
- Fairly and competently conduct proceedings on behalf of the person
- Have no interests which are adverse to the person
- Confirm that they will act in the person’s best interests
The Litigation Friend effectively takes the place of the person throughout the court process and will instruct the person’s solicitor and be guided by them. A Litigation Friend will make every attempt to ensure that the person is consulted and informed throughout the process, is likely to attend at court and will continue to be involved until the case is resolved. A Litigation Friend who knows the person well will ensure that the person is at the heart of the Court process and that their wishes and feelings are made known to the Court.
Rule 3A Representative
If a case is not contentious and all those involved agree that a DoLS is appropriate a Rule 3A Representative can be appointed by order of the Court. Again this role can be taken by family or friends, or if nobody is available or appropriate, by an independent person such as an advocate.
In non contentious cases the Deprivation of Liberty can be authorised by a Judge ‘on the papers’ without a Court Hearing, which avoids the necessity of instructing Solicitors and Barristers and is therefore less time consuming and considerably less expensive.
The Rule 3A Representative role is similar to that of the RPR.
In most cases the Rule 3A Representative will be required initially to complete a Witness Statement for the Court, giving information about the person’s care and accommodation and including the views of the person themselves. If the person is unable to communicate, the Rule 3A Rep will consult with those who care for the person and will attempt to establish if the person appears be content and is able to indicate this by their behaviour. The Rule 3A Rep will consider all aspects of the person’s care and will indicate if they believe that the current care plan is meeting their needs.
Following authorisation of the DoLS the Rule 3A Rep must then be able to have regular contact with the person. They will ensure that the care and support plan is implemented and monitored throughout the duration of the DoLS and continue to ensure that the person’s care is in their best interests, is the least restrictive option and continues to meet their needs. The Rule 3A Rep will consult with those who are involved in the person’s care including family members, support staff and any professionals who may be involved, and will inspect care records. They will also raise any issues of concern and suggest any potential activities or options that may be of benefit to the person. Any significant changes to the care and support plan must be reported to the Court.
Prior to expiry of the DoLS a formal care review is usually held and the Rule 3A Rep will then provide a further statement to the Court giving their findings about the person’s care and circumstances.