Deprivation of liberty(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDeprivation of liberty(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDeprivation of liberty(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDeprivation of liberty:permittedDeprivation of liberty:not permittedDeprivation of liberty:authorisationDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDeprivation of liberty:Bournewood gapDeprivation of libertyBournewood gap(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDeprivation of liberty:standard authorisationDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDeprivation of liberty:safeguardsDeprivation of libertyCodes of Practice:Deprivation of Liberty Safeguards (DOLS) Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice (2008)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDOLS scheme:six requirementsDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDOLS scheme:six requirementsDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDOLS scheme:six requirementsDOLS scheme:age requirementDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDOLS scheme:six requirementsDOLS scheme:mental health requirementDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDOLS scheme:six requirementsDOLS scheme:mental capacity requirementDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDOLS scheme:six requirementsDOLS scheme:best interests requirementDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDOLS scheme:six requirementsDOLS scheme:best interests requirementDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDOLS scheme:six requirementsDOLS scheme:no refusals requirementDeprivation of liberty(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDOLS scheme:six requirementsDOLS scheme:no refusals requirementDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDOLS scheme:six requirementsDOLS scheme:no refusals requirementDeprivation of liberty(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDOLS scheme:six requirementsDOLS scheme:no refusals requirementDeprivation of liberty(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDOLS scheme:six requirementsDOLS scheme:eligibility requirementDeprivation of liberty(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDOLS scheme:six requirementsDOLS scheme:eligibility requirementDeprivation of liberty(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDOLS scheme:four mechanisms, andDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDOLS scheme:four mechanisms, andDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDOLS scheme:four mechanisms, andDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDOLS scheme:Cheshire West caseDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDeprivation of libertyPractice Guidance:Court of Protection Practice Direction 10AA:Pt 2(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDOLS scheme:Re XDOLS schemeDeprivation of liberty(reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDeprivation of liberty:three proceduresDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDeprivation of liberty:three proceduresDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDeprivation of liberty:three proceduresDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDOLS scheme:ten commandmentsDeprivation of liberty:ten commandmentsDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDOLS scheme:ten commandmentsDeprivation of liberty:ten commandmentsDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDetention:deprivation of liberty, andDeprivation of liberty:detention, andDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDetention:deprivation of liberty, andDeprivation of liberty:detention, andDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDetention:deprivation of liberty, andDeprivation of liberty:detention, andDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDetention:deprivation of liberty, andDeprivation of liberty:detention, andDeprivation of libertyMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overviewMental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:deprivation of libertyDetention:deprivation of liberty, andDeprivation of liberty:detention, andDeprivation of liberty
3.166To recap, the MCA 2005 in its original form included a fairly clear framework in relation to providing care or treatment to an incapacitated person.
3.167It did not adequately address the problem that an incapacitated person who did not wish to receive this care or treatment was often not permitted to leave the hospital, care home or other place where it was being given.
3.168In certain circumstances, MCA 2005 s5 permitted a carer to restrict the person’s liberty of movement and to use reasonable and proportionate force in order to give the care or treatment. Likewise, if the individual had a personal welfare donee or deputy appointed for them, that person could authorise such restraints in identical circumstances.
1MCA 2005 ss11 and 20.3.169What no one other than a judge of the Court of Protection could do was to authorise depriving the person of their liberty in order to give them the care or treatment. The authority conferred by section 5, deputyship and an LPA was limited to restrictions of liberty which did not amount to deprivation of liberty:
3.170This was a problem for three reasons:
a)First, if the reality was that many care homes were depriving residents of their liberty, it was not practical for them to obtain a court order authorising this for every such resident. They would soon be bankrupt given the relatively modest fees paid by local authorities and the costs involved in applying for court orders.
b)Second, if the reality was that many incapacitated people were being deprived of their liberty in relatives’ homes or in supported living accommodation, it was similarly unrealistic to expect families and housing providers to obtain court orders for each person affected.
c)Third, there was uncertainty as to the dividing-line between restricting someone’s liberty of movement (permitted without a court order) and depriving them of their liberty (not permitted without a court order). It was not always clear to care providers where the line was, nor therefore whether it had been crossed and a court order was required.
3.171Even allowing for some uncertainty, it was obvious that a considerable number of incapacitated hospital patients and care home residents were being deprived of their liberty without any proper legal order or authority permitting it, without the use of clear and explicit criteria, with no proper application process and no adequate form of judicial review.
3.172In essence, this was what was commonly referred to as the ‘Bournewood gap’ as a result of a famous case in which the European Court of Human Rights found that this lacuna in English and Welsh law breached the European Convention on Human Rights (ECHR).
2HL v United Kingdom Application no 45508/99, [2004] ECHR 471 (‘the Bournewood case’).3.173The eventual consequence was that a new scheme was inserted in the MCA 2005 (by the MHA 2007) which enables hospitals and care homes to obtain a legal authority to deprive people of their liberty under the MCA 2005 without having to obtain an order from a court.
3.174This authority – called a standard authorisation – can be obtained from the relevant local authority (or in Wales, in some cases, the National Assembly), with the incapacitated person having a right to apply to court for a review of the authorisation.
3The new authorisations are commonly referred to as ‘DOLS orders’. Most of the relevant provisions are set out in two new schedules at the end of the MCA 2005: Schedules A1 and 1A. Even now it is not known publicly who devised the scheme and drafted the schedules, which were not put out to prior consultation.3.175This ‘deprivation of liberty safeguards’ scheme – known colloquially as the ‘DOLS scheme’ – commenced operation on 1 April 2009. The detail is set out as necessary in the relevant chapters. However, briefly, it applies only to hospitals and care homes. It seeks to ensure that the relevant person is assessed at least annually by two suitably qualified and independent professionals. They must certify that the care and treatment arrangements made for the incapacitated person are in their best interests, necessary to protect them from harm, proportionate and so forth.
The six requirements
3.176The new Schedule A1 to the MCA 2005 provides that deprivation of liberty under the scheme requires that six requirements are satisfied: the age, mental health, mental capacity, best interests, no refusals and eligibility requirements.
3.177The purpose of the requirements is the same as in the case of the ‘sectioning criteria’ in the MHA 1983, ie to prevent people who do not meet the statutory requirements from being deprived of their liberty.
The age requirement
3.178The age requirement is simply that the person must be an adult. A child may not be deprived of their liberty under a standard authorisation.
The mental health requirement
3.179The second requirement is simply that the person suffers from a mental disorder within the meaning of the MHA 1983 (but disregarding the requirement in the 1983 Act sometimes to demonstrate that a learning disability is associated with abnormally aggressive or seriously irresponsible conduct).
The mental capacity requirement
3.180The requirement here is that the person lacks capacity to make their own decision about whether or not to be accommodated in the particular hospital or care home in order to receive the care or treatment in question.
The best interests requirement
3.181This is really four requirements masquerading as one. It is satisfied only if all of the following conditions are satisfied:
1)the person is being detained in the hospital or care home for the purpose of being given care or treatment in circumstances which amount to a deprivation of their liberty;
4More precisely, they are a ‘detained resident’. By MCA 2005 Sch A1 para 6, a ‘detained resident’ is ‘a person detained in a hospital or care home – for the purpose of being given care or treatment – in circumstances which amount to deprivation of the person’s liberty’. If this is not the case, then no authorisation is required, because there is no deprivation that requires authorisation. 2)this is in their best interests;
3)this is necessary in order to prevent harm to them; and
4)their detention in the care home or hospital for the purpose of being given care or treatment in circumstances which amount to a deprivation of their liberty is a proportionate response to the likelihood of them suffering harm, and the seriousness of that harm (if they were not so detained).
3.182If one or more of the four conditions is not satisfied, the person does not meet the best interests requirement; and, because a standard authorisation may only be given if all six requirements are satisfied in their totality, that person may not be deprived of their liberty under the scheme.
The no refusals requirement
3.183The essence of this oddly phrased requirement is to ensure that the relevant person does not have in place a valid LPA or advance decision which a standard authorisation would breach.
3.184Specifically, a person may not be deprived of their liberty in a care home or hospital in order to give them treatment or care which by virtue of their advance decision may not be given to them under the MCA 2005.
3.185Nor may they be deprived of their liberty in order to give them treatment or care which their personal welfare donee under an LPA has refused consent to on their behalf.
3.186The underlying premise is that one cannot use the MCA 2005 to break the MCA 2005.
The eligibility requirement
3.187This requirement is concerned with the inter-relationship between the MHA 1983 and the MCA 2005.
3.188In certain situations where the MHA 1983 is ‘in play’, detention or compulsory treatment or care takes place under that Act, not the MCA 2005. This requirement is dealt with below, after some relevant provisions of the MHA 1983 have first been considered.
The DOLS scheme and the four mechanisms
3.189The four care and treatment mechanisms set out in the original MCA 2005, which were explained above, are unaffected by this ‘standard authorisation ‘DOLs scheme’ and are still good law.
3.190Where a person lacks capacity to consent to treatment or care, their treatment or care is subject to any relevant advance decision, LPA or court order, or is given under the protection of MCA 2005 s5. All that has changed is that if it is necessary and in their best interests to deprive them of their liberty so that this care or treatment can be given, then a standard authorisation is required alongside (or a court order).
3.191So, for example, a person may be deprived of their liberty at a care home under a standard authorisation in order to give them the care determined to be in their best interests, which in practice most often is provided under the protection of section 5.
The Cheshire West and Re X cases
3.192Because the DOLS scheme just described only applies to care homes and hospitals, the absence of a simple equivalent procedure for people deprived of their liberty in other settings such as supported living accommodation or their own homes remained a problem. This gap was considered in the
Cheshire West case
5Cheshire West and Chester Council v P [2014] UKSC 19, (2014) 17 CCLR 5. where the Supreme Court found that three incapacitated people were deprived of their liberty in non-care home settings and that they were equally entitled to a proper legal process under Article 5 ECHR.
3.193Following the judgment in
Cheshire West, a non-statutory ‘streamlined procedure’ designed to comply with Article 5 was formulated by the President of the Court of Protection, Sir James Munby, in
Re X and others (Deprivation of Liberty)6[2014] EWCOP 25, [2014] COPLR 674, (2014) 17 CCLR 297. and
Re X (Deprivation of Liberty) (No 2)7[2014] EWCOP 37, (2014) 17 CCLR 464. and brought into law as Part 2 of Court of Protection Practice Direction (PD) 10AA.
3.194Although the President’s approach was criticised in some respects by the Court of Appeal in
Re X (Court of Protection Practice),
8[2015] EWCA Civ 599, [2015] COPLR 582. the ‘
Re X Procedure’ remains that to follow where authorisation is required under MCA 2005 for a deprivation of liberty outside hospital or a care home. It involves filing an application form (form COPDOL10) together with certain required information such as a copy of the person’s care plan, and paying a fee. If the person affected has not expressed any objection to the care arrangements and application is uncontroversial the judge may authorise the deprivation of liberty ‘on the papers’, and further identical reviews then take place at least annually.
Three murky streams forming one river
3.195It can be seen that there are now three different procedures in existence in relation to a deprivation of liberty under MCA 2005:
•As originally enacted, MCA 2005 required an application to a judge under section 16 in all cases where authorisation for a deprivation of liberty was sought. This approach is still used for complicated cases where a deprivation of liberty is but one of a range of issues requiring the court’s determination. For example, an application may require the court to determine the relevant person’s best interests in relation to deprivation of liberty, residence, family contact, treatment and care.
•There is then the ‘DOLS scheme’ inserted in the MCA 2005 (by the MHA 2007), which commenced operation on 1 April 2009. This is an administrative procedure which enables a deprivation of liberty in a care home or hospital to be authorised by a local authority, with a right of appeal to a judge of the Court of Protection.
•There is also now a ‘Re X procedure’ designed to enable a deprivation of liberty in a setting other than a care home or hospital to be authorised by a judge on the papers in appropriate cases. This is discussed further in chapter 21.
3.196The reason for this unsatisfactory piecemeal approach is not hard to discern. Almost twenty years ago the Department of Health strongly opposed the original ‘Bournewood’ application and, having eventually lost that case, over many years it has fought hard to minimise the impact.
3.197The Law Commission is now reviewing the deprivation of liberty procedures and a draft Bill containing new procedures is expected at the end of 2016.
Ten commandments
3.198Deprivation of liberty schemes are intended to be protective schemes. Anyone who is deprived of their liberty – that is, who is under another person’s complete and effective control and is not free to leave – is vulnerable to abuse.
3.199The subject is dealt with in detail in chapter 21. However, at this preliminary stage, the relevant domestic and convention law can be understood as imposing ten commandments:
1)Deprivation of liberty requires that the person has been confined in a particular restricted space ‘for a not negligible length of time’. This is the ‘objective condition’.
2)In addition, a ‘subjective condition’ must be met before a person is deprived of their liberty. This is that they have not validly consented to their confinement.
3)However, a person cannot consent to being confined if they lack capacity to consent to it.
4)The distinction between deprivation of liberty and restriction of liberty is one of degree or intensity, not one of nature or substance.
5)The starting-point is the specific situation of the individual concerned. Account must be taken of a whole range of factors arising in the particular case, such as the type, duration, effects and manner of implementation of the measure in question.
6)The critical issue is whether the professionals exercise ‘complete and effective control’ over the person’s care and movements, so that the individual is ‘under continuous supervision and control and is not free to leave’.
7)The state’s obligations under the convention are engaged if a public authority is directly involved in the detention (it is ‘imputable to the state’), but also where the state has breached its positive obligation to protect the person against interferences by private persons.
8)This is because Article 5(1) ECHR imposes a positive obligation on the state to protect the liberty of its citizens. The state is obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge.
9)It is also essential that the person concerned should have access to a court and the opportunity to be heard in person or, where necessary, through some form of representation. Fundamental procedural safeguards are called for in order to protect the interests of detained persons who, on account of their mental disabilities, are not fully capable of acting for themselves.
10)With regard to persons in need of psychiatric treatment in particular, the state is also under an obligation to secure to its citizens ‘their right to physical integrity’ under Article 8 ECHR. Private psychiatric institutions, in particular those where persons are held without a court order, need not only a licence, but also competent supervision by the state on a regular basis of whether confinement and medical treatment is justified.
Detention and deprivation of liberty
3.200A critical thing to understand is that in law there is a distinction between ‘detention’ and ‘deprivation of liberty’. This is counter-intuitive because most people use these words interchangeably in everyday conversation.
3.201At first blush, the first commandment appears to be one of those vague legal statements which are of no use to anyone. However, that is not so.
3.202In our field of interest, the particular restricted space in which the relevant person is confined will often be a hospital, a part of a hospital such as a ward or A&E department, a police station or a care home. A person who is prevented from leaving hospital for a brief period, say for one hour, until he can be assessed by a doctor is being ‘detained’ there but is not in fact being ‘deprived of his liberty’. This is because his confinement is, in this sense, for a ‘negligible length for time’.
3.203Compare that with the case of an older person in a care home. Their situation for the next hour may be exactly the same: they are not allowed to leave. However, it may be the case that nor will they be allowed to leave tomorrow or next week or next month. Their confinement in a particular restricted space is ‘for a not negligible length of time’, in which case the objective condition for a deprivation of liberty is met.
3.204The doctor’s action is an emergency measure which does not carry with it any general claim to a right to control the person’s liberty of movement; to prevent that person from being ‘at liberty’. It is only in the second case that the ‘confiner’ claims a general power or right to control the person’s liberty of movement to the extent that a right to confine is claimed. Unlike me or you, the concrete reality is that their liberty is no longer theirs and is in the hands of another: they do not decide whether and when to leave, where to go, when if at all to return, what they do when they leave, and so on.