Use of conditions in deprivation of liberty safeguard authorisations

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.

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).