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Deprivation of Liberty Safeguards – where are we?

Our People - Maria Nicholas
1 October, 2012

Ever since 1 April 2009, when they first came into force, ‘Deprivation of Liberty Safeguards’ has been a phrase all care homes must be familiar with. But how have they been used? And is the same approach taken throughout the country?

NHS Health and Social Care Information Centre report

On 17 July 2012, the NHS Health and Social Care Information Centre published its third report on the safeguards: Mental Capacity Act 2005, Deprivation of Liberty Safeguards assessment (England) – third report on annual data 2011/12. It offers some interesting insights into where and when the safeguards are being used.

The report looks at the number of requests for standard authorisations that were made, and granted, between 1 April 2011 and 31 March 2012. Standard authorisations legalise the deprivation of a person’s liberty, in their best interests.

It is the responsibility of the organisation physically depriving an individual of their liberty to make these requests. It is no doubt well known among the care home sector that the duty is upon the care home itself to identify these cases and seek the necessary authorisation. However, this is an important point to remember and so it is right to emphasise it here.

The number of requests has increased by 27% compared to the previous year, and 56% of the requests have been successful. There are essentially more people subject to standard authorisations than last year or the year before.

The figures in the report suggest that someone in a care home is more likely to be under a standard authorisation than someone in hospital. The figures also show that standard authorisations are lasting for a longer period of time for people in care homes than in hospitals.

Further, there are regional variations, with the East Midlands having the highest rate of applications in England and London having the lowest.

The increase suggests that care homes are identifying more cases where there is or may be a deprivation of liberty or perhaps that they are becoming more familiar with the need and process of applying for authorisation. This can only be a good thing if it is indeed the case. Of course, one suspects that the makeup of the national care home population has not changed in terms of the number of people lacking capacity.

However, what we still do not know is how many people in care homes or hospitals are being deprived of their liberty without any authorisation. How many people who enter a care home are actually asked if they want to be there? Is their capacity to consent to being there properly assessed? Is it assessed at all?

Benefits and risks

From the perspective of an individual and their family, a standard authorisation offers some protection, in the sense that there is something concrete in existence to challenge. No permission is required to make an application in the Court of Protection (unlike other welfare matters in the Court), and legal aid is not means-tested for the person being deprived and their relevant person’s representative (again, unlike other welfare matters in the Court, which are means-tested). It also removes an important hurdle – the need to successfully persuade the Court that someone is being deprived of their liberty, in order to then challenge the deprivation. If the individual is already under a standard authorisation, it is likely that all parties will agree that there is a deprivation, and the arguments can focus instead on what is in their best interests.

From a care provider’s point of view, making a request for a standard authorisation, where appropriate, will avoid any unlawful deprivation of liberty, and therefore a breach of the individual’s Article 5 right under the European Convention of Human Rights.

However, these statistics come at a time when Steven Neary will be receiving £35,000 in compensation from the London Borough of Hillingdon for the unlawful deprivation of his liberty. This was a case where a standard authorisation was requested by the care home and granted by the local authority, but in inappropriate circumstances. In this case, the standard authorisation was used to circumvent the fact that Steven Neary’s father objected to his residence in the care home, rather than the local authority making an application to the Court of Protection so his best interests could be determined there.

For local authorities, primary care trusts, hospitals and care homes there is a fine line to tread between ensuring that the deprivation of a person’s liberty is authorised where appropriate, and over-use of the deprivation of liberty safeguards to circumvent a family’s objections to the care being provided to their loved one.

In either case, the consequences can be significant, not least the risk of having to pay compensation and the inevitable legal costs awarded against the body that has unlawfully deprived someone of their liberty. Monetary fears aside, the risk of the matter being made public, as in the Neary case, and the resulting damage to an organisation’s reputation could prove to have far longer lasting effects.

Next steps

So, what do you do?

All care homes must have documented procedures designed to identify those residents who may lack capacity and to uncover situations where a deprivation of liberty may exist. It goes without saying that not only must the procedure exist, it must also be followed. However, there is no easy and sure-fire way to protect yourself if you are the owner/manager of a care home.

Deprivation of liberty cases are highly fact-sensitive and only by understanding the facts in the decided cases, and the thought process of the court in those decisions, can you begin to build up a sense of how the courts approach these complicated issues. Only then can you start to get a feel for how they are decided and how to train your staff and management.

The law in this area has barely grown beyond infancy. This makes the task of identifying deprivations of liberty and taking the appropriate action when necessary, and only when necessary, fraught with uncertainty. It is essential that the relevant managers and staff receive training in this crucially important area of safeguarding.

For publication in the October 2012 edition of Quality & Compliance Magazine.

Head of Court of Protection
Maria Nicholas is a Solicitor and Director at GN Law, and the Head of the Court of Protection and Community Care Departments. Maria advises on issues of mental capacity, best interests, deprivation of liberty and all aspects of community care law.

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