There are times when it is in the best interests of vulnerable members of society to be deprived of their liberty so that, for their own protection, they may be treated and cared for in a safe environment. It may not be necessary to detain them under the Mental Health Act 1983 (MHA) and, indeed, it may not be appropriate to do so.

Under the MHA, it was traditionally accepted that patients who lacked capacity but did not resist admission or treatment could be admitted informally, without the need for MHA powers of detention. However, once this approach had been successfully challenged in HL v United Kingdom (the Bournewood case), it obviously had to be revised.

The Bournewood case

Bournewood highlighted the plight of an autistic patient who had severe learning disabilities. He lived with his carers and attended a day centre. On one occasion at the day centre, he became agitated. He was given Valium and then admitted to Bournewood Hospital. The patient was admitted under the common law doctrine of necessity, as his psychiatrist considered it was in his best interests to be detained. He lacked the capacity to refuse such detention.

In hospital, he was compliant and did not try to leave. However, his doctor also instructed the hospital staff to stop him leaving if he tried. Further, his carers were prevented from visiting him in case he was reminded of a desire to leave.

The European Court of Human Rights held that keeping the patient in hospital without access to his carers – and not allowing him to leave – amounted to a deprivation of liberty. No-one should be deprived of their liberty before a prescribed legal procedure has been followed. In the absence of such a procedure, patients are being detained unlawfully.

To prevent a repeat of this situation, the Mental Capacity Act 2005 (MCA) has been amended (at sections at 4A and 4B) to incorporate deprivation of liberty safeguards. These new provisions are intended to ensure that incapacitated but compliant patients are only detained in hospital once MCA prescribed procedures have been followed. These new safeguards will come into effect from 1 April 2009. They are designed to strengthen the rights of vulnerable adult patients and will give them the ability to challenge decisions.

However, the safeguards will not replace MHA detention provisions, which should still be used in appropriate cases to detain individuals with a mental disorder.

What constitutes deprivation of liberty?

There is an important distinction between a deprivation of liberty and a restriction of liberty. The distinction is often a matter of degree and intensity. In Bournewood the hospital exercised complete and effective control over the patient’s care, treatment, movement and contacts. This amounted to a deprivation of liberty.

If there is a risk that an individual may be deprived of their liberty, consideration should always be given to less restrictive alternatives before authorisation is sought. It is hoped that the Department of Health guidelines and codes of practice will assist hospitals and care homes to avoid deprivations of liberty.

Department of Health guidance lists various factors suggesting deprivation of liberty:

  • the use of restraint, including sedation
  • the exercise of complete and effective control over the care and movement of an individual
  • the exercise of complete control over the assessment, treatment and residence of – and contact with – an individual
  • a decision to prevent an individual from leaving the medical institution if they attempt to do so.

What are the safeguards?

Patients not treated under the MHA can only be deprived of their liberty lawfully where such detention is:

  • authorised by a personal welfare decision of the Court of Protection
  • authorised in accordance with the deprivation of liberty procedures, or
  • necessary to save life or to prevent a serious deterioration in a patient’s condition.

When a hospital or care home (“the managing authority”) suspects that a patient is now – or in the next 28 days will be – at risk of losing their liberty, they must apply to the supervisory body for a standard authorisation. For a hospital the “supervisory body” will be the relevant PCT; and for a care home it will be the local authority. The patient must (or will) be resident at the applying body. If the patient is moved a new standard authorisation will be needed.

Any decision to deprive a person of their liberty must be necessary and made in their best interests to protect them from harm.

Standard authorisations

To obtain a standard authorisation the managing authority should inform the supervising authority of the following:

  • the name, age, mental disorder and other relevant health information e.g. the ethnicity of the patient
  • the purpose and nature of the proposed deprivation of liberty
  • the contact details of the care home (or hospital) and the main professionals involved in the care of the individual patient
  • the contact details of family, friends and carers, and
  • whether urgent authorisation has already been issued.

The supervisory body will then consider six qualifying requirements before giving the authority:

1. Age assessment (the patient is aged 18 or over)

2. Mental health assessment (the patient suffers from a mental disorder)

3. Mental capacity assessment (the patient lacks the capacity to decide whether or not to be admitted to – or remain in – the hospital or care home)

4. Eligibility assessment (the patient is eligible). The patient will be eligible unless:

  • they have been detained under the MHA
  • they are subject to an MHA requirement that conflicts with the authorisation sought (for example, a guardianship order requiring them to live elsewhere)
  • they are subject to powers of recall under the MHA
  • they object to being in hospital or to the treatment in question. In deciding whether a person objects, their past and present behaviour, wishes, feelings, views, beliefs and values should be considered.

5. The best interests assessment confirms the proposed course of action is:

  • in the best interests of the patient
  • necessary to prevent harm to them, and
  • a proportionate response to the likelihood of harm and the seriousness of that harm.

6. No refusals assessment. The authorisation must not:

  • conflict with a valid decision by a donee of a lasting power of attorney or by a court-appointed deputy, or
  • be for the purpose of giving treatment that would conflict with a valid and applicable advance decision made by the patient.

If any of the six qualifying requirements are not fulfilled, authorisation will not be given.

The eligibility requirement is particularly interesting, as it prevents patients being admitted under the deprivation of liberty safeguards where they object. This is the case even if they would not ordinarily have the capacity to object to treatment. Consequently, where patients do object, detention under the MHA might have to be considered if less restrictive options are not appropriate.

Assessments

A best interests (BI) assessor, independent of the admissions unit, will carry out assessments. They must consider the views of those individuals named by the patient to be consulted, the carers, those interested in the patient’s welfare, any attorney and any deputy. If there are no family members or friends the BI assessor must consult an independent mental capacity advocate (IMCA).

The BI assessor may recommend that certain conditions are attached to any authorisation – so as to ensure, for example, that the patient’s cultural and religious needs are taken into account.

A doctor will carry out the mental health assessment and the same individual may carry out the Mental Capacity assessment.

The standard authorisation

If and when authorisation is provided it must be in writing and detail the purpose of the deprivation of liberty. It must also list the time period, any conditions attached and specify how each of the qualifying criteria is met.

A copy of the authorisation must be given to the hospital or care home managers, the patient, any IMCA and all interested persons consulted.

If there are no interested parties to support the patient during their admission, the supervisory body must appoint a person (paid or voluntary) to represent the patient for the duration of the authorisation.

The maximum time period for a standard authorisation is 12 months. After that, it must be renewed. The minimum time will depend on each case. The general rule is that patients must be deprived of their liberty for the shortest time possible.

Protecting the vulnerable

To protect vulnerable patients, people who are concerned about their interests – such as family members – can apply for an assessment of whether the patient is in fact being deprived of their liberty. If the hospital or care home is aware of a patient who may be subject to the deprivation of liberty provisions, they must notify the supervisory body of a person who will look after the patient’s interests. This may be a family member. But if there is no-one else, an IMCA should be instructed.

Urgent authorisations

In an emergency where there is no time to apply for standard authorisation, an urgent authorisation must be obtained. A follow-up standard authorisation must then be secured before the urgent authorisation expires. Urgent authorisations will be for a maximum of seven days. In exceptional circumstances the period can be extended for a further seven days by the supervisory body.

The managing authority of the hospital or care home can give an urgent authorisation. This must be in writing, detailing the patient’s name, hospital’s name, length of authorisation and the purpose for which the authorisation has been given.

Reviews and appeals

During the admission, the hospital and care home managers must take practical steps to ensure the authorisation is followed. They must also monitor the patient’s circumstances in case changes require an authorisation review. Such a review can end the authorisation, vary the conditions or change the reason recorded for authorisation.

An application can be made to the Court of Protection for permission to challenge a deprivation of liberty decision.

Looking ahead

Trusts and care homes must prepare for 1 April 2009, when those vulnerable and eligible patients will require standard authorisations if they are to continue their admissions. While there may be concerns about the volume of authorisations required, high numbers are not envisaged. Most patients do not endure deprivation of liberty to a degree and intensity to warrant authorisation and for those that do, measures will be in place to ensure they are protected.