DEPRIVATION OF LIBERTY SAFEGUARDS POLICIES

Critical Account of Local Deprivation of Liberty Safeguards Policies in the Areas Where They Work

Critical Account of Local Deprivation of Liberty Safeguards Policies in the Areas Where They Work

Introduction

District nurses are aware that while many patients living in care homes are there by choice, some lack the capacity to decide where they should live due to mental incapacity of some sort (Griffith 2009, 132-140). Although unable to decide where they live, patients generally comply with the care and treatment they receive within care homes. Some residents are accommodated despite the objections of their relatives and carers or are subject to a great deal of control and supervision in order to protect them from harm. It was generally believed that the law in the UK allowed for this degree of control over vulnerable incapacitated adults on the grounds that it was necessary for their care and protection (R v Bournewood Community and Mental Health NHS Trust Ex p. L [1999] at paragraph 174). However, a ruling from the European Court of Human Rights has forced the government to introduce an amendment to the Mental Capacity Act 2005 that provides for more formal means of authorising the deprivation of liberty of adults who lack capacity in a hospital or care home where this is necessary in their best interests. In HL v United Kingdom (45508/99) (2005) a man who suffered from autism and lacked the capacity to consent to medical treatment had been living in the community when he became extremely agitated while attending a day centre. He was assessed as requiring in patient treatment but was not admitted to hospital under the compulsory powers of the Mental Health Act 1983, as he did not resist admission. He remained in hospital for sixteen months on the grounds of necessity, despite the objection of his carers and brother. The European Court of Human Rights held that he had been unlawfully deprived of his liberty contrary to the right to liberty and security of person under article 5(1) of the European Convention on Human Rights (Council of Europe 1950). The fact HL had not resisted his admission was irrelevant said the court, as the right to liberty was too important to be relinquished for that reason alone. His deprivation of liberty was unlawful because the doctrine of necessity did not provide set procedural rules authorising a deprivation of liberty, and provided no mechanism for review. The ruling of the European Court of Human Rights resulted in the introduction of Deprivation of Liberty Safeguards into the Mental Capacity Act 2005, section 4A, 4B and schedule A1. The Deprivation of Liberty Safeguards are accompanied by a 125 page addition to the Mental Capacity Act 2005 Code of Practice, that provide guidance on the use of the safeguards (Ministry of Justice, 2008).

Deprivation of liberty

The European Court of Human Rights has given some indication as to when a person's care goes beyond the restriction of liberty of movement allowed by the 2005 Act and ...