This article applies to residential (and hospital) care settings in England & Wales.
So far in this series we have established that people in receipt of health and social care have the same basic rights as everyone else so long as there is no legal mechanism to remove those rights from them. We further established that those basic rights include the right to make their own choices and to take risks. After all, quality of life depends upon taking risks to some degree – even if that risk is no more than crossing the road.
Further we have identified that there are two types of risk – organisational risk that care providers must manage and individual risk that may well be none of our business. Individual risk only becomes organisational risk if it affects others for whom the organisation has a duty of care or if the individual lacks the capacity to understand the risk they are taking.
If the person lacks capacity to decide then care providers can restrict their liberty under the Mental Capacity Act so long as the restriction is both proportionate and in that person’s best interests. However they cannot deprive a person of their liberty without external authorisation. This third article in the series considers the difference between restriction and deprivation of liberty and how to go about getting authorisation to deprive should it be necessary.
Liberty means freedom – it means rights. All rights represent the freedom to do something or the freedom from something. All our choices are freedoms and they are not to be trifled with unless there’s very good reason.
Let’s examine the difference between restriction and deprivation of liberty. According to the European court of Human rights:
“The difference between restriction and deprivation of liberty is one of intensity or degree and not one of nature or substance.”
(European Court of Human Rights HL vs UK (the Bournewood case) 2004)
To put it another way:
“It aint what you do – it’s the way that you do it.”
An emergency response to a wandering resident with dementia may be to pull him physically from the path of a speeding car.
A resident with a urinary tract infection causing toxic confusion may need to be restrained to prevent her from injuring herself or someone else.
An autistic resident who bangs his head repeatedly against the wall may require immediate physical restraint to prevent head injury.
All of the above examples are likely to constitute restrictions of liberty because they are emergency responses and not long term policy. The common law doctrine of necessity recognises that sometimes workers are caught between a rock and a hard place – they have only two options and they don’t really like either.
The law accepts that in such situations the best we can manage is the lesser of two evils – restraint is usually better than injury so the common law doctrine of necessity allows us to act. Berar in mind though that common law works best in emergency. It is not nearly so reliable when the restraint is carried out as part of a longer term policy. That is because policy is more likely to represent deprivation of liberty and not unplanned emergency restrictions under common law.
For example:
George is 87 years old and lives in residential care. He has physical difficulties but appeared mentally ‘sound’ until now.
It is 3am in November. The temperature outside is well below freezing when George appears wearing only his underwear and slippers. He is making his way to the front door and clearly intends to leave.
The night staff ask him where he is going and he replies the post office to buy stamps. The night staff try to persuade him to wait until the day time when the post office will be open. They also suggest that he is not suitably dressed but George does not appear to understand. He attempts to force his way out of the building and the night staff physically prevent him from leaving.
This is an unexpected emergency response. It is a restriction of liberty – not a deprivation. The reason for this is that there is no intention (at least not yet) to deprive George of his liberty in the long term. It is simply a proportionate response in George’s best interests to restrict his liberty because it is reasonable to assume that he would come to harm should he be left to wander in those conditions.
If in the morning George has regained his understanding (his capacity) and wants to go to the Post Office fully dressed and in a rational state of mind then he will do so. There is no need for further restriction and so no need for further authorisation.
If however it became necessary to keep George from going outside for longer than that it would be necessary to seek further authorisation under the new Deprivation of Liberty Safeguards (DoLS) which came into effect on April 1st 2009.
Some people believe that the new DoLS procedures represent a new crime but nothing could be further from the truth. In fact they are a way to make deprivation of liberty lawful for people in hospitals and care homes without the need to seek a court order or detention under the Mental Health Act. DoLS makes your job easier. Let’s look at the situation DoLS seeks to change.
It has been unlawful to deprive people of their liberty throughout Europe without legal authorisation for years. This is why Josef Fritzl was prosecuted for locking his daughter Elisabeth in a cellar for 24 years:
http://www.telegraph.co.uk/news/newstopics/joseffritzl/1929150/Austria-Elisabeth-Fritzl-was-imprisoned-behind-eight-doors.html
It is also why the Bournewood ‘admission’ that prompted the government to create the Mental Capacity Act 2005 was unlawful:
http://www.communitycare.co.uk/Articles/2009/09/02/112480/the-bournewood-case.html
Both of these cases were against articles 5 (the right to liberty) and article 8 (the right to respect for private and family life) of the European Convention on Human Rights ECHR. The convention demands that all member states create laws preventing such human rights breaches and the UK is no exception.
Article 5 (the right to liberty) effectively says that there should be no deprivation of liberty without legal process including the right to a fair hearing and to speedy appeals processes. This means that it is unlawful to deprive a person of liberty without recourse to a court.
For decades the culture in care homes has been that people are routinely denied their right to liberty by workers with no legal training, no real understanding of Human Rights legislation and no authority to replace the courts. This has been illegal and has left care workers open to criminal prosecution.
The Bournewood judgement made it clear that this practice had to stop. Residents’ rights had to be respected or their would be legal consequences for care workers who wrongfully deprived them of their freedom.
So the government created the deprivation of Liberty safeguards (DoLS) in order to help residential care providers obtain legal authorisation without the need for lengthy court processes. In effect DoLS does you a favour. It gives you a way to do what you need to do to fulfil your duty of care without having to appear before a judge and without fear of prosecution.
The process is very straightforward and is designed to help you to stay within the law.
The authorisation comes from the local supervisory body (either the local authority or the local PCT) and depends upon 6 assessments. These are:
- Age requirement
- Capacity requirement
- No refusals requirement
- Mental health requirement
- Eligibility requirement
- Best interests requirement
In the next article in this series we’ll look at the DoLS process itself, how it works, why the 6 requirements are there, who completes the assessments and what happens once the authorisation is granted.
We’ll also talk about what will happen if the authorisation is not granted.
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