A Critical Analysis of Deprivation of Liberty Safeguards re; the Mental Capacity Act 2005

Project for the Graduate Diploma in Law - Author - Assunta Crolla - Spring 2020

The history of ‘madness’ and mental health dates back to the 16th century. In the days when people were placed in “mad houses” and considered to be possessed by evil spirits because they had what we would deem now as “mental health issues.” Although, mental health is very much present in our day to day lives, for centuries anyone who was considered to be behaving in an “unconventional” manner would have found themselves labelled a “lunatic” or “insane”, confined to a poor house and subjected to treatments that were quite shocking. It was not until the 1774 Lunacy Act that two separate specialist doctors were required to certify a person who was going to be committed to an asylum. The act was the first step in regulating madhouses and required all inmates to be registered, it did not, however, stop sane people from being detained against their free will. Also the act did not give magistrates from releasing those who had been incorrectly detained.

However, being incorrectly detained, in the UK, a country that is at the forefront of the Human Rights movement, has not always been deal with as it should be. The stigma attached relating to, not only mental health issues, but also to severe educational needs, abuse related issues, or even anti-social behaviour by young people can often result in the deprivation of someone’s liberty. Often this has been as a result of fear, not necessarily because the person in question could be a danger to themselves, but more so because they could prove a threat to society and the public. This misunderstanding that anyone who is suffering from schizophrenia, for example, could not possibly function in society should, therefore, be deprived of their liberty. For many years, the lack of awareness of certain issues has caused people to be deprived of their liberty, without truly having an understanding of what the person in question needs or requires. It is easy to judge an illness by the stereotypes that surround us. It is even easier to assign negative behaviours to the person and not the symptoms[1].

Moving forward to the current day, legislation has focused heavily on the rights of those with mental health issues or conditions that could require the input of either the Mental Capacity Act 2005 or the Human Rights Act 1998 or both.

That being said, it was not, surprisingly, until 2013 that the UK Government considered a ban on the use of “face down” restraints in English mental health hospitals. This method of “restraining” someone is an example of depriving a person of their liberty, commonly known as Deprivation of Liberty (DOLS) which were brought into force in April 2009 to ensure that professionals applied checks and balances when they had to deprive people lacking capacity of their liberty. In December 2019, the Voluntary Organisations Disability Group[2] (VODG) found that 2,250 people with special needs are currently detained in long-stay NHS accommodation, half of which will still be confined by 2030. This is another example of DOLS being used in institutionalised care which is fundamentally wrong and exposes some of the most vulnerable people to serious risk of harm and thus risks damaging their well-being.

Understanding why a person could be deprived of their liberty is not something one thinks about unless they find themselves, as a family member or health care giver, in a position where someone is actually deprived of their liberty. Therefore, it is important to first understand what is meant by “Liberty” and “Deprivation”.

Under Article 5 of the convention[3] – Right to Liberty and Security - 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;

Deprivation is the fact of not having something that a person needs - enough food, money or a home and of course, freedom. In this, being deprived of liberty is an example of deprivation. [4]

It is difficult to apply DOLS to any one type of condition, situation or illness, however, in the last 20 years one condition which has increased across the UK is Dementia. According to the Dementia Statistics Hub[5], more than 850,000 people are living with Dementia in the UK, with 28.6 million people, 38% of the population who know someone suffering with some form of Dementia. The reason for using this condition as an example where Deprivation of Liberty and the Mental Capacity Act 2005 (MCA 2005)[6] are often referred to, is that Dementia can affect the decision making abilities of the person suffering from the illness and it can be complicated when having to make any decisions on their behalf. Often it is not until the illness is in its advanced stages that family members or next of kin realise that a person who does not have mental capacity cannot actually make any crucial decisions about their own life, health or finances. Without a Power of Attorney for Health and Well-Being and Finance, it is difficult to provide the person in question support of any kind. Once the window of opportunity has passed, a person diagnosed with Dementia may not have the capacity to understand what decision they are actually making and why. The other options available such as obtaining a Deputyship through the Court of Protection, can be onerous, complex and extremely drawn out.

An example of such a case is SR v A Local Authority 2018[7] when despite the fact that the husband of a woman with Alzheimer's disease had expressed support for euthanasia, it would not be justifiable, proportionate or necessary to prevent him from taking her out of the care home in which she resided unaccompanied. He was devoted to his wife and no harmful conduct had ensued when the two had been alone. The husband had made comments which had given rise to legitimate anxiety on the part of the professionals, and whilst was concern, there had not been an adequate investigation into the reasons behind the comments made by him. Imagine, a couple who have been married for 58 years, and were devoted to each other. The woman developed dementia and November 2016 the decision was then taken by the local authority that she should remain in a care home, in part because the health care professionals were concerned over her husband’s views on euthanasia. As a result she was made the subject of a DOLS authorisation. Her family objected and wished for her to return home. The woman was reported to have frequently expressed a wish to be with her husband. Attempts to mediate with the family proved futile and as a result her stay was extended.

How can it be possible for a husband and wife to be separated and kept apart based on the fact that healthcare professionals do not take the time to investigate the thinking behind a person’s opinion? One example of how DOLS based on failure to properly investigate the circumstances in question, can cause distress for the parties involved.

Therefore, it is paramount to have an understanding of the Mental Capacity Act 2005 and how significant this piece of legislation is when trying to come to terms with exactly what “having capacity” means and how that can affect not only a person suffering from a mental illness, but also those who are placed in the decision making process on their behalf.

 Currently, the MCA 2005 states that the 5 key principles must be adhered to:- 

1.      Every adult must have the right to make their own decisions unless otherwise proven that s/he does not the capacity to do so.

2.      People must be supported in making their own decisions.

3.      People have the right to make unwise or eccentric decisions, as everyone has their own beliefs.

4.      Anything done on behalf of a person who lacks capacity must be done in their best interests.

5.      Anything done on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms. 

With mental health being high on the country’s agenda, the Queen’s Speech in 2017, announced a review of the Mental Health Act 1983 (MHA 1983). Sir Simon Wesley, an eminent professor was given the task of carrying out an independent view of the MHA1983. The report focused on the increase in detentions and improving the way in which organisations tasked with supporting those suffering with mental health issues can be supported.

The common denominator between the MHA 1983 and the MCA 2005 is the fact that a person suffering from a mental illness, such as dementia or depression can be detained. In doing so, one must always take into consideration that depriving a person of their liberty should be done to protect them from their own behaviour or to protect society.

DOLS were amended as part of the MCA 2005 in 2017, allowing the restraint or deprivation of someone’s liberty but only if it is in their best interests. One of the key safeguards is that a person with authority (a family member) who has the power to represent them, can give authority for DOLS to be in place. As one out of four hospital beds within the NHS are occupied by someone over the age of 65 suffering from Dementia, this was a clear indicator that DOLS had been considered to be increasingly important by some health care professionals.

However, should it be left to health care professionals, carers and even a court of law to decide whether a person should be deprived of their liberty? There are situations where people with conditions like dementia, Alzheimer’s, or severe learning difficulties need to be confined or made subject to restrictions which are in their best interests. For example, a person with dementia may be kept in their room within a care home to prevent them from wandering off, which could put them in danger.

In the case of P v Cheshire West and Chester Council[8] previous judgements that had defined deprivation of liberty more restrictively, were thrown out. The case showed that many people could have been deprived of their liberty unlawfully and without the correct safeguards in place. As a result, Cheshire West changed this definition. Now anyone living in a hospital, care home and even a private or family home who is under constant supervision and not free to leave is considered to have been deprived of their liberty.

All people who lack the capacity to make decisions about their care and residence and, under the responsibility of the state, are subject to continuous supervision and control and lack the option to leave their care setting are deprived of their liberty, ruled the court.

The Law Commissioner Nicolas Paines QC[9] said “It’s not right that people with dementia and learning disabilities are being denied their freedoms unlawfully. There are unnecessary costs and backlogs at every turn, and all too often family members are left without the support they need. The Deprivation of Liberty Safeguards were designed at a time when considerably fewer people were considered deprived of their liberty. Now they are failing those they were set up to protect. The current system needs to be scrapped and replaced right away. We know there are enormous pressures on health and adult social care at the moment and our reforms will not only mean that everyone is given the protections they need, but could also deliver a saving to the taxpayer. That’s cash that can then be directly reinvested to support those most in need.”

The Cheshire West decision significantly widened the numbers of those vulnerable people considered to be deprived of their liberty. As a result, health and social care services were unable to cope with the huge increase in cases and additional administrative burden. The Department for Health responded by requesting the Law Commission to review the law to ensure suitable protections were in place.

Following a public consultation[10], the Law Commission recommended replacing the law with a new scheme, called the Liberty Protection Safeguards[11]. As a result The Law Commission recognised that many people who “need” to be deprived of their liberty can benefit from being in a home environment with the loving support that close family and friends can provide. The reforms were intended to widen protection to include care or treatment in the home and also designed to ensure that safeguards can be provided in a simple and unobtrusive manner, which minimises distress for family carers.

Importantly, the Commission also recommended a wider set of reforms which would improve decision-making across the Mental Capacity Act. All decision makers would be required to place greater weight on the person’s wishes and feelings when making decisions under the Act. Professionals would also be expected to confirm in writing that they have complied with the requirements of the Mental Capacity Act when making important decisions – such as moving a person into a care home or providing serious medical treatment. It is calculated that local authorities would save an estimated ￡200 million or more a year. Caroline Dinenage, the then Minister of Care said: “Treating people with respect and dignity, no matter their disability or condition, is the touchstone of a civilised society. I want to ensure that the system works for everyone and ensures that individuals’ fundamental rights are protected while reassuring families their loved ones are getting good care.”

As a result, the Mental Capacity (Amendment) Act 2019 (MCA 2019) given Royal Assent in May 2019 with a target date for implementation in October 2020, include the key features of the Liberty Protection Safeguards (LPS) start at 16 years old. There will be no statutory definition of a deprivation of liberty beyond what was decided in Cheshire West and Surrey Supreme Court judgement of March 2014 and the “Acid Test”.

 Any “deprivation of liberty” would have to be authorised in advance by the ‘responsible body’, for example, within NHS hospitals, the responsible body would be the ‘hospital manager’. For the responsible body to authorise any deprivation of liberty, certain elements need to be in place. The MCA 2019 will require that the person in question lacks capacity to consent to care arrangements and can be proven to have a mental illness, for example Alzheimer’s. The arrangements for the person’s care would be put in place to prevent harm to the cared-for person, however, in order to establish a. the mental illness and b. the need for DOLS, the responsible body must consult with the person and others, to understand what the person’s wishes and feelings about the arrangements are.

If is suspected, that the person objects to the care arrangements, then a more thorough review of the case must be carried out by an Approved Mental Capacity Professional. 

Where there is a potential deprivation of liberty in a care home, the Act will allow care home managers – if the local authority felt it was appropriate – to lead on the assessments of capacity, and the judgment of necessity and proportionality, and pass their findings to the local authority as the responsible body. This aspect of the Act has generated some negative comment, with people feeling that it might lead to insufficient independent scrutiny of the proposed care arrangements. 

Once a deprivation is authorised, safeguards will include regular reviews by the responsible body and the right for an appropriate person or an IMCA to represent a person and protect their interests.

As with DOLS, a deprivation can be for a maximum of one year initially. Under LPS, this can be renewed initially for one year, but subsequent to that for up to three years. This will be overseen by the Court of Protection who will also deal with any disputes or appeals.

So will the Liberty Protection Safeguards (LPS) truly be an improvement on DOLS? The importance of these changes is extremely important in an era when not only mental health issues are at the forefront of public discussions, but also at a time when a society is witnessing an ageing demographic who have a much higher life expectancy than ever before; the significance of this is that not only are those who suffer from an illness, affliction or condition which impairs understanding or capacity affected by the deprivation of liberty, but equally those who are ageing.

Even though LPS has not yet been implemented, a prime example of whether or not DOLS can be relied upon is Hertfordshire CC v NK and AK. 

A local authority's application for a deprivation of liberty order in respect of a 16-year-old boy was refused where his current regime did not subject him to continuous supervision and control. When considering whether given restrictions constituted a deprivation of a child's liberty, it was the current situation of the child which ordinarily fell for the court's consideration, not contingent circumstances. The court had to adhere to the rule of law when interfering with a person's right to liberty and security, Brogan v United Kingdom (A/145-B) (1989) 11 E.H.R.R. 117, [1988] 11 WLUK 363 applied. To determine whether someone had been deprived of their liberty within the meaning of ECHR art.5, the starting point was his concrete situation, Guzzardi v Italy (A/39) (1981) 3 E.H.R.R. 333, [1980] 11 WLUK 49 applied. The relevant factors included the restrictions placed on the child in their placement, Salford City Council v M (Deprivation of Liberty in Scotland) [2019] EWHC 1510 (Fam), [2020] 1 W.L.R. 371, [2019] 6 WLUK 239 applied. Comparisons would be drawn with children of the same age, Cheshire West and Chester Council v P [2014] UKSC 19, [2014] A.C. 896, [2014] 3 WLUK 548 followed. 

The child’s guardian stated that "AK requires a consistent placement where AK can develop attachments with staff members and develop his independence skills ready for adulthood. AK would like to remain living near his family […] the placement at [Y] will offer him this opportunity."

Based on this statement alone it illustrates that LPS could be a turning point in the way in which a person who could be deprived of their liberty is dealt with. Hertfordshire CC were asked by the court to think about how they deprive a child of his / her liberty, if and ONLY if, it is a necessity and of course, only if it is in the best interests of the child.

Baroness Hale stated[12] that “the protection afforded by Art 5 of the ECHR is precisely so that there can be an independent assessment whether the arrangements that constitute a deprivation of liberty can be said to be in a person’s best interests. This sits exactly behind the thinking behind the changes to the way in which DOLS were dealt with in the past and will soon be superseded by LPS. 

So why are we concerned about the deprivation of someone’s liberty?

As human beings in a western society most of us we have the tremendous privilege of being born free. We are given the ability to express ourselves with very little restriction and we have liberty, we have freedom. In order to understand why deprivation of liberty needed to change, it is important to stop and ask why we are concerned about whether a person is deprived of their liberty? These decisions are taken by healthcare professionals who are required to focus on whether the whole care and/or treatment package is in the best interests of the person who cannot give consent because they lack the capacity to do so. Therefore, the starting point must be a consideration of whether the arrangements made for them – their placement and the care and/or treatment plan around them – are in their best interests having regard to less restrictive alternatives. Healthcare professionals must also take into consideration that the decisions as to whether to prevent or control a person’s contact with others have a greater impact on that person when they are also deprived of their liberty. The European Court of Human Rights (ECtHR) emphasised how much more personal autonomy means for those who are the subject of ‘authorised’ deprivations of liberty. [13]

As with Cheshire West, when taking the decision as to whether someone has been deprived of their liberty, the ECtHR decided that the starting point must be an outline of their concrete situation and one must take into account a range of criteria such as the type, duration, effects and manner of implementation of the restrictive measure in question. 

However, one must also take into consideration the existing DOLS Code of Practice[14] (COP). The COP is a statutory one, to which all professionals providing care and treatment to individuals lacking capacity must have regard.

This means that care must be taken when considering the factors outlined at paragraph 2.5[15] of the DOLS Code as potentially identifying whether steps taken involve more than restraint to a deprivation of liberty.

And these are the issues that take us full circle back to the 16th Century. Whilst the severity with which people with mental health issues and health conditions were dealt with may have changed, the attitude towards those in need of help has not changed. The COP states that restraint is used, including sedation, to admit a person to an institution where that person is resisting admission; being sedated because a person is refusing to be admitted to a psychiatric ward in a hospital does not grant that person their “human rights” . Why is it acceptable for healthcare staff to exercise complete and effective control over the care and movement of a person when a decision has been taken by an 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? Just the words used – “not be released”, “permitted”, “consider appropriate” are so negatively loaded. The final point in section 2.5 of the COP states that “The person loses autonomy because they are under continuous supervision and control.” It is this sentence that sums up the fact that DOLS and the MCA do not consider that the liberty-restricting measures being taken would have a much further reaching impact not only on the person being deprived, but also their family and carers. Imagine being told that you are prevented from taking a loved one out to a tea shop because the law states you can’t. It is this type of very simple situation that the lay person does not understand is a breach of someone’s human rights. What does this say about society? And how does this type of decision impact families who are opposed to these decisions and find themselves trying to challenge authority.

Is it really necessary in the 21st century to use force or restraint, which sometimes includes sedation against a human being? Are their less restrictive measures which are available? Do the Government and the CQC truly understand that historical cases show us exactly what does not work well within society?

PS[16] was 55. Evidence showed that she lacked the capacity to make decisions about her healthcare and treatment. She also lacked the capacity to conduct or defend proceedings. PS had cancer of the uterus. The treating doctors were of the opinion that she required a hysterectomy and removal of the fallopian tube and ovaries. PS also suffered from needle phobia. The clinical team treating her came to the conclusion that special arrangements would need to be put in place to ensure that she had the operation and also that she remained in hospital for her post-operative recovery. The arrangements included sedation, the administration of anesthetic during the operation, and post operatively analgesic with a sedative effect, close supervision and the use of force to stop her absconding.

The issues to be decided were:-

1.      whether it was in her best interests to undergo the proposed operation;

2.      whether it was in her best interests to sedate PS and if necessary for force to be used in order to convey her to hospital, to administer the anaesthetic (because of her needle phobia) and to detain PS in hospital during the period of post-operative recovery.

The decision was:-

1.      It was in PS’s best interest to undergo a hysterectomy and removal of the fallopian tubes and ovaries.

2.      It was necessary and in PS’s best interests to use sedation and force, if required, to convey PS to hospital, during the operation and to detain her in hospital post operatively.

It was Sir Nicholas Wall who felt it was necessary for P to have the operation and therefore there was no deprivation of liberty. However, following on from the decision in Cheshire West all elements that P was subjected to would now be likely to be held to meet the acid test and to be a deprivation of PS’s liberty requiring authorisation.

To comply with Article 5(4) of the European Convention on Human Rights[17], anybody deprived of their liberty in accordance with the safeguards described is entitled to the right of speedy access to a court that can review the lawfulness of their deprivation of liberty. Yet it was the Bournewood Gap[18] which raised concerns about the way in which adults without mental capacity but who are compliant to be hospitalised and treated for psychiatric problems without the procedural safeguards offered by the Mental Health Act 1983. The European Court of Human Rights found that such practice violated a patient's right to liberty[19].

The details of the case of P are highly emotive, yet they hark back to an era when a person in similar circumstances would have been placed in a poor house. It is clear that the reasoning behind implementing DOLS and removing a person’s liberty was often disproportionate and decided in a way which did not make sense to many. Yet why has it taken a case like Cheshire West for the law to be finally changed and for DOLS to be reassessed?

It is only to be hoped that the Law Commission’s proposal that the MCA be amended so as to give greater priority to wishes and feelings in best interests decision-making will be realised.

[1] https://www.supremecourt.uk/cases/docs/uksc-2018-0064-judgment.pdf

[2] https://www.vodg.org.uk

[3] https://www.echr.coe.int/Documents/Guide_Art_5_ENG.pdf

[4] https://www.oed.com

[5] https://www.dementiastatistics.org

[6] https://www.legislation.gov.uk/ukpga/2019/18/enacted

[7] https://www.bailii.org/ew/cases/EWCOP/2018/36.html

[8] Declarations of incapacity were made in respect of a 24-year-old man with autism and learning difficulties who was subject to a care support package. He suffered from anxiety and the unpredictability of that anxiety and its impact was decisive in overturning the legal presumption of capacity. 

A local authority sought declarations of incapacity in respect of a 24-year-old man who was subject to a care support package. The respondent had autism and mild learning disabilities. He also had a visual impairment and had previously been compulsorily detained under the Mental Health Act 1983. 

[9] https://www.lawcom.gov.uk/government-commits-to-protect-people-with-dementia-and-learning-difficulties/

[10] https://www.lawcom.gov.uk/project/mental-capacity-and-deprivation-of-liberty/

[11] The Law Commission estimates that the Liberty Protection Safeguards would cost ￡236 million a year in total – a saving of ￡10 million which could then to be reinvested into adult social care services. If the current system was working and every referral to DoLS was completed within the year they were referred, the Law Commission estimates this could cost up to ￡2.2 billion annually. For more information view the impact assessment.

[12] [2020] EWHC 139 (Fam)

[13] Munjaz v United Kingdom 2012

[14] https://www.cqc.org.uk/files/deprivation-liberty-safeguards-code-practice

[15] 2.5 The ECtHR and UK courts have determined a number of cases about deprivation of liberty. Their judgments indicate that the following factors can be relevant to identifying whether steps taken involve more than restraint and amount to a deprivation of liberty. It is important to remember that this list is not exclusive; other factors may arise in future in particular cases.

[16] DH NHS Foundation Trust v PS [2010] EWHC 1217 (Fam) (Sir Nicholas Wall P)

[17] https://www.cqc.org.uk/sites/default/files/Deprivation%20of%20liberty%20safeguards%20code%20of%20practice.pdf

[18] R. v Bournewood Community and Mental Health NHS Trust Ex p. L

[19] HL v UK App no 45508/99 (2004) 40 EHRR 761