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Restriction or Deprivation of Liberty – What’s the Difference?
Making Decisions in Someone’s Best Interests
I have discussed in earlier articles how under section five of the Mental Capacity Act 2005 we can make decisions in someone’s best interests where they lack the capacity to make those decisions about their own care, and how section six of the Mental Capacity Act allows us to restrain someone, when we are acting their best interest, when it is necessary to prevent the person coming to harm, and where the level of restraint is proportionate to the likely harm that might occur. There are lots of examples of such restrictions and restraints in the day to day to running of a care home . Are all residents allowed to make themselves a cup of tea? For some people, handling a kettle of boiling water would be very risky, and the harm caused would be high, so for some residents the kitchen door might remain locked.
I gave an example in a previous article about a frail elderly resident who walks out of the front door, and heads to a busy main road. Good practice (and the Mental Capacity Act!) would suggest we’ll go after them and bring them gently back by the arm into the home. If the person still says they want to go out, well maybe we’ll have a member of staff on duty later who can go for a walk with them. This is just common sense. However, what if this particular resident is very insistent they want to go out and we decide we haven’t got staff available, or the risks of the person going into the road, or going into the kitchen, are so high we going to make things more difficult for them. We’re going to lock the kitchen door and we’re going to lock the front door. In fact we’re a bit bothered that the person’s daughter is a bit careless and we’re going to tell her when she comes to visit she can’t take her mother out. You can may be see where this discussion is going!
Does the level of restriction and restraint we can apply in accordance with section 5 and 6 of the Mental Capacity Act mean that we are now actually depriving the person of their liberty? To do this would be in contravention of Article 5 of the Human Rights Act 1998. Now there are circumstances in which a Deprivation of Liberty is lawful, because of course there are lots of people lawfully deprived of their liberty, in prisons following a sentence in court, or in psychiatric units following detention under a Section of the Mental Health Act. They have been deprived of their liberty after they have gone through a process and procedure prescribed by law. So this is the key, if our level of restriction and restraint is so great that we may be depriving someone of their liberty then the care home needs to make application to have that Deprivation lawfully authorised. This procedure is known popularly as the DOLS - the Deprivation of Liberty Safeguards. The DOLS were a later amendment to the Mental Capacity Act introduced so that the UK was compliant with the European Court of Human Rights on this matter. (Incidentally, they only apply to people in care homes, nursing homes and hospitals, not in your own home).
Deprivation of Liberty Safeguards
Before saying something about how the DOLS process works let’s go back to our response to the resident walking out of the home. We’re agreed on the need to restrain or restrict his or her movements in some way, but we need to identify what form the restraint or restriction will take, and how long will it be for. Think of an old fashioned pair of weighing scales – with a bag of sugar in one pan. You keep adding small brass weights to the other pan. Each restriction or restraint might be seen as a weight. At some point there will now be so many weights, or maybe a very large weight that ‘tips the scales’ and we are now in a situation where we are depriving someone of their liberty. It is very difficult in hypothetical examples to say when we have tipped the balance. It is not really an either/or when we are thinking about whether someone has been deprived of their liberty, or merely had their liberty restricted. In the words of the European Court of Human Rights this matter is “one of degree or intensity, not one of nature or substance”. I’m afraid there is no definition of deprivation of liberty in the Mental Capacity Act! So if care home managers are unsure, and certainly where they are sure, that they are depriving someone of their liberty, they need to make an application for a Deprivation of Liberty Safeguards authorisation. The home or hospital is called the managing authority in the DOLS regulations, and they need to make an application to the supervisory body, which will be the NHS in the case of hospitals, or the local authority in the case of care homes.
So how do we know if we are depriving someone of their liberty, or even better, can we plan someone’s care so that we are not depriving them of our liberty? The Deprivation of Liberty Safeguards Code of Practice gives us some pointers on how to do that and these focus on the principles of good care planning that start with the care home admission process. Section 2.7 of the DOLS Code of Practice tells us to make proper assessments, involve friends and family, record decisions and the reasons for them, and review plans on an ongoing basis. Considering the persons’ care plan can help us decide whether the person is being deprived of their liberty:
- What were the circumstances of the admission? How willing were they to be moved to the home?
- What restrictions are we placing on the person within the home, and where do these fit into the care plan? Are these restrictions about managing risk?
- How much are we involving friends and family in the care of the person, and are they supportive of the care plan?
- Are the restrictions about management of short-term risk issues, or long-term management problems? Are they being reviewed regularly to explore less restrictive alternatives?
I know these are questions and not answers, but they are the issues that DOLS assessors will be looking at if your home applies for an authorisation.
Ministry of Justice Deprivation of liberty safeguards Code of Practice The Stationery Office 2008