The deprivation of liberty safeguards were introduced into the Mental Capacity Act 2005 schedule A1 following the decision of the European Court of Human Rights in HL v United Kingdom (45508/99) (2005). The safeguards can be used to authorise the deprivation of liberty of an adult in a care home or hospital where this is necessary to protect the person from harm and is proportionate to the risk and seriousness of that harm, as set out in the Mental Capacity Act 2005, schedule A1 paragraph 16.
Protecting dignity and autonomy
To protect the dignity of patients by ensuring that restrictions imposed to protect that person and not overly intrusive, best interests assessors are commissioned to review the restrictions and satisfy themselves that the protective measures in place are necessary and proportionate. Restrictions that disproportionately interfere with the autonomy of the person will be unlawful. In Re MK [2014] the Court of Protection held that the removal of a woman with severe learning disabilities from her family was a deprivation of liberty that was disproportionate and unnecessary. The woman was not at risk, her wishes and feeling were to be at home with her family and the standard of her day-to-day care had been good. The woman had been unlawfully deprived of her liberty and unlawfully denied contact with her family. Both were unjustifiable interferences with her human rights under article 5 and 8 of the European Convention on Human Rights (ECHR) (Council of Europe, 1950).
Using conditions to ensure necessary and proportionate restrictions
Local authorities and health boards, in their role as supervisory bodies, are tasked with sanctioning a deprivation of liberty standard authorisation under the safeguards (Mental Capacity Act 2005, schedule A1 paragraph 50). To ensure that hospitals only impose proportionate restriction that are necessary to protect the person from harm, the supervisory body can make the authorisation subject to conditions that are legally binding on the hospital. The supervisory body will consider the recommendations of the best interests assessor when deciding if an authorisation should be subject to conditions (Mental Capacity Act 2005, schedule A1 paragraph 53).
In Re G [2016] the court considered the case of a woman, aged 92, who had dementia and lacked capacity. Her care plan involved the administration of medication covertly. No conditions had been placed on the authorisation of her deprivation of liberty. The court found that the use of covert medication had not been subject to proper safeguards; the decision to administer medication covertly did not appear to have been communicated to the supervisory body. The court issued guidance that best interests assessors and supervisory bodies should place conditions on the authorisation to ensure that covert administration was regularly kept under review and that it continued to be a necessary and proportionate response to the needs of the person.
Recommending conditions
The code of practice for the deprivation of liberty safeguards (Ministry of Justice, 2008) highlights that attaching conditions to a deprivation of liberty standard authorisation should relate to the restrictions and should not be used as a substitute for a properly constructed care plan. As the conditions in a deprivation of liberty authorisation are binding on the hospital it is good practice for the best interests assessor to discuss proposals for conditions with the staff caring for the protected person (Ministry of Justice, 2008: paragraph 4.75).
To ensure that conditions are appropriate to the protected person they must (Welsh Assembly Government, 2009):
- Be relevant to the role of the managing authority
- Relate directly and specifically to the deprivation of liberty, and
- Should not be general in nature, or
- Be a lever to improve the overall care plan.
To ensure that those requirements are met best interests assessors and supervisory bodies are required to subject any proposed conditions to a ‘but for’ test. That is, would the conditions be needed ‘but for’ the protected person being deprived of their liberty. A valid condition would be one that meets that test, it is needed only because the person is being deprived of their liberty.
Purpose of conditions
The code of practice to the deprivation of liberty safeguards (Ministry of Justice, 2008) suggest that conditions might be used to:
- Ensure the deprivation of liberty is secured
- Limit the restrictions that amount to a deprivation of liberty
- Work towards ending the deprivation of liberty.
Ensuring the deprivation of liberty is secured
The code of practice (Ministry of Justice, 2008) suggests that conditions could be imposed on a deprivation of liberty authorisation to ensure that the deprivation of liberty is secured. This might arise where it is necessary to ensure that the person will not leave the hospital. In A local authority v D [2013] a woman with Huntington’s disease was prevented from returning home to her husband following a period of respite care. The husband was also denied access to his wife to secure the deprivation of liberty by preventing him from taking his wife home.
Although conditions can be used to immediately secure a deprivation of liberty, the use of conditions for such purposes must only be for a short period. A deprivation of liberty safeguard authorisation cannot generally be used to authorise limited or no contact with the protected person. ‘No contact’ issues can only be authorised by the Court of Protection. The code of practice to the deprivation of liberty safeguards stresses that it must be for the Court of Protection to make decisions when contact between family members or close friends is being restricted. The deprivation of liberty safeguards cannot be relied on to manage no-contact cases.
In A local authority v D [2013] the Court of Protection held that the delay of some 3 months between the initial authorisation of the deprivation of liberty and bringing the case before the court was a breach of the couple’s right to respect for a family life under article 8 of the ECHR (Council of Europe, 1950) and an unlawful deprivation of liberty contrary to article 5 of the ECHR. Damages were awarded to both the husband and wife for these breaches.
Limiting the deprivation as much as possible
This purpose allows best interests assessors and supervisory bodies to impose conditions where they are satisfied that the restrictions being imposed are disproportionate to the risk of harm. The conditions can be used to ensure that the protected person continues to enjoy access to fresh air or meaningful activities, or to maintain social contacts.
Working towards or bringing about an end to the deprivation
Supervisory bodies can use conditions for this purpose to ensure the person’s timely and appropriate discharge from hospital. The conditions might require assessment to facilitate discharge to be completed within a given time frame. This might include obtaining a occupational therapy home visit assessment report or a physiotherapy report.
Conditions are binding on managing authorities
The Mental Capacity Act 2005, schedule A1 paragraph 53(3) states that:
‘The managing authority of the relevant hospital must ensure that any conditions are complied with.’
The Mental Capacity Act 2005 schedule A1 paragraph 4(3) also states that:
‘In a case where an authorisation is in force, a person is not authorised to do anything which does not comply with the conditions (if any) included in the authorisation.’
The Local Government and Social Care Ombudsman found that Barchester Healthcare had failed to fulfil the conditions attached to a man’s deprivation of liberty authorisation that related to the provision of meaningful activities and his interaction with a fellow resident. The man’s wife felt compelled to find her husband a different care provider due to these failures. Barchester Healthcare offered a £5000 payment in recognition of their shortcomings relating to the authorisation conditions, which the ombudsman found to be appropriate in the circumstances (Peart, 2020).
Changing or removing conditions
The only lawful way for a hospital to vary a condition attached to a deprivation of liberty authorisation is to seek a review of the best interests requirement under part 8 of schedule A1 of the Mental Capacity Act 2005. Varying in this context includes amending, adding to or omitting conditions. Where a request for a review is received then the supervisory body will commission a best interests assessor to reassess the protected person’s best interests and make recommendations as to whether the supervisory body should vary the conditions.
Enforcement of conditions
In Re W [2016] the Court of Protection held that it was for the supervisory authority that had granted a standard authorisation, under the Mental Capacity Act 2005, to deprive a person of their liberty that was responsible for monitoring compliance with the conditions it had imposed. The frequency of such monitoring depended upon the circumstances of the case rather than there being any need to fix a period that would be applicable to all authorisation cases.
Conclusion
Under the deprivation of liberty safeguards, local authorities and health boards, in their role as supervisory bodies, can attach conditions to a deprivation of liberty authorisation to ensure that the restrictions imposed on the protected person are necessary and proportionate to the risk of harm the person faces. Conditions are binding on the hospital where the person is being deprived of their liberty and it would be unlawful not to implement the conditions attached to an authorisation of a deprivation of liberty. It is the duty of supervisory bodies to ensure the conditions they attach to authorisation are implemented by the hospital through regular review and monitoring.
Key points
- A supervisory body can make the authorisation of a deprivation of liberty subject to conditions that are legally binding on the hospital
- Conditions attached to a deprivation of liberty standard authorisation must relate to the restrictions and should not be used as a substitute for a properly constructed care plan
- Conditions must meet the ‘but for’ test to be valid
- Conditions are binding on the hospital where the person is deprived of their liberty