Deprivation of Liberty

8 Key excerpts on "Deprivation of Liberty"

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  eBook - ePub

  A Practical Guide to the Mental Capacity Act 2005

  Putting the Principles of the Act Into Practice

  • Matthew Graham, Jakki Cowley(Authors)
  • 2015(Publication Date)
  • Jessica Kingsley Publishers

    (Publisher)

  Nevertheless, having said this, restrictions or deprivations of liberty that do not adhere to the MCA and are not in P’s best interests will be unlawful. The key issue might be whether care staff actually know they are acting unlawfully in the provision of their care, or whether such actions have come about because of the culture of care in that organization.

  In very simplistic terms restriction of liberty means to limit and Deprivation of Liberty means to take away . These considerations will be useful when helping us to understand later in the chapter what might constitute a restriction or a Deprivation of Liberty.

  This chapter will first discuss ‘restriction of liberty’ within the context of choice and people’s self-determination and then the discussion will focus on Deprivation of Liberty, what this means in relation the DoLS – the Deprivation of Liberty safeguards.

  Restriction of liberty

  When reflecting upon restricting liberty we must first consider why we should never restrict people of their liberty, and when we do that we have very clear reasons for doing so. Yet again, we ask the question on what authority am I acting in this situation? Everyone has the freedom to make decisions, choices, express opinions and live their lives in the way they see fit, including what care people wish to accept or decline. The only time this liberty can be contained or removed is if law states so because of a risk of harm to self or others, or because of other parameters stated by law within the context of caring for others in their best interests. Some examples of this are:

  • Criminal justice – imprisonment, for example.

  • The Mental Health Act 1983 – detention for assessment and/or treatment.

  • The Deprivation of Liberty Safeguards – which this chapter discusses.

  • Parental responsibility under the Children Act 1989 –

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  Social Work with Adults

  • Jim Rogers, Lucy Bright, Helen Davies, Author(Authors)
  • 2015(Publication Date)
  • Learning Matters

    (Publisher)

  Code of Practice (Department of Health, 2008a) and by case law until the Cheshire West judgment.

  The wide national discrepancies in the use and application of the DOLS, as reported by the House of Lords and others, have a variety of causes. However, there must be some foundation for the discrepancy in this tension between those who see liberty as something that is lost incrementally through increased restrictions on an ongoing basis and those who see liberty as an absolute, which is immediately surrendered and compromised the moment an incapacitous person enters a 24-hour placement. The two approaches do not have to be mutually exclusive, but the writer would argue that the now blanket approach to identifying deprivation may have unintended consequences – namely, that by affording everyone the right of appeal, opportunities to recognise and encourage empowerment, supported decision making and choice within 24-hour care may be lost. By automatically assuming that an individual is deprived of their liberty, there is less room for recognising different models of care and treatment, and supporting those models that sit well within the ethos of the MCA.

  What is Liberty?

  This is, of course, a question that is far too large and wide-ranging to answer in a social work textbook, but needs some reflection when considering concepts around Deprivation of Liberty.

  Philosophers, writers, anti-slavery campaigners and politicians have grappled with this question over the centuries. As human society has evolved, the variety of ways in which liberty can be perceived has also changed. For example, there is currently a debate around the ability of governments and/or businesses to spy on civilians by means of mass electronic surveillance, as highlighted by the Wikileaks whistleblower, Julian Assange. Privacy and liberty are now closely linked in a way that historical commentators would not have considered. John Stuart Mill wrote his famous treatise On Liberty

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  Mental Health and Mental Capacity Law for Social Workers

  An Introduction

  • Simon Godefroy, Author(Authors)
  • 2015(Publication Date)
  • Learning Matters

    (Publisher)

  However, when they introduced DOLS, the Government decided not to provide a statutory definition of a Deprivation of Liberty. Instead it stated that references to Deprivation of Liberty have the same meaning as Article 5(1) of the European Convention on Human Rights (MCA 2005, s64(5)). This means that there is no clear statutory definition (defined by Parliament in legislation) of what is a Deprivation of Liberty. Instead, it is up to the courts to interpret what the Convention means by Deprivation of Liberty, which means that what is considered to be Deprivation of Liberty can change over time.

  Restrictions on Liberty and Deprivation of Liberty

  In order to understand if a person is likely to a deprived of their liberty, you need to understand what restrictions on their liberty are being imposed. As with Deprivation of Liberty, there is no definition of restrictions on liberty. There have been a number of cases since the introduction of DOLS which have placed differing emphasis on a range of restrictions in order to decide whether there is a Deprivation of Liberty or not. However, what is clear is that a Deprivation of Liberty occurs when the ‘intensity and degree’ of the restrictions placed on the person, who lacks capacity and is in a care home or hospital, build up to a point where the threshold of Deprivation of Liberty is crossed. Now this threshold of Deprivation of Liberty has changed over time (and is likely to continue to change in the absence of a statutory definition) but the fundamental building blocks, i.e. restrictions on liberty, basically remain the same. If we continue with the analogy of building blocks, restrictions can be bigger or smaller but when they are built on top of each other they can be tall enough to show that the threshold required for Deprivation of Liberty has been reached. This can be made up of a larger number of smaller blocks, or a smaller number of bigger blocks, or more often a combination of various sized blocks. If when you add up all the restrictions, the threshold of Deprivation of Liberty has not been reached, then there is no need for a legal authorisation.

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  Clinical Topics in Old Age Psychiatry

  • Julian C. Hughes, Philippa Lilford(Authors)
  • 2020(Publication Date)
  • Cambridge University Press

    (Publisher)

  A Deprivation of Liberty (a DoL) without lawful justification and due legal process for scrutiny would be a breach of the person’s rights under Article 5 with associated conse- quences including the right to compensation. The judgment handed down by the Supreme Court in P and Q and P (in Cheshire West) 1 in March 2014 has established a threshold to apply and a measure of clarity as to when a Deprivation of Liberty may arise. This threshold is perhaps lower than many anticipated and consequently has had wide-ranging effects. In relation to older people, and particularly those with dementia, this is the situation that now applies in a whole range of clinical and social care locations. There are, however, two legal considerations for practitioners; first, what constitutes a deprivation of someone’s liberty? We shall discuss this in relation to some of the relevant case law along with practical considerations as to how it may be recognized in different settings. Second, how is it authorized? At the time of writing, one scheme to authorize a deprivation under the MCA, the Deprivation of Liberty Safeguards (DoLS), is to be replaced by a second scheme, the Liberty Protection Safeguards (LPS), which is not yet operational. We shall, therefore, discuss the interface between the DoLS/LPS and the Mental Health Act 1983 (MHA) and briefly discuss the anticipated amendments the LPS will introduce. Background to the Concept of Deprivation of Liberty The first point to note is that Article 5 of the ECHR is a ‘limited right’ and does not protect us from detention. There are defined circumstances when it does not apply. It expressly permits confinement of criminals, illegal immigrants, and the ‘lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants’. It does, however, protect us against ‘arbitrary detention’ so that deprivations are made in accordance with a procedure prescribed in law.

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  Safeguarding Adults Together under the Care Act 2014

  A multi-agency practice guide

  • Barbara Starns(Author)
  • 2019(Publication Date)
  • Critical Publishing

    (Publisher)

  » The Deprivation of Liberty system is being revised and updated as Liberty Protection Safeguards. This is an approach with wider scope and emphasis on greater protection of the adult’s human rights. References and further reading Allen, N (2009) Restricting Movement or Depriving Liberty? Journal of Mental Health, Law , 19: 105–210. Brown, R (2013) The Approved Mental Health Professional’s Guide to Mental Health Law . London: Sage/ Learning Matters. Brown, R, Barber, P and Martin, D (2015) The Mental Capacity Act 2005: A Guide for Practice . London: Sage. Department for Constitutional Affairs (2007) Mental Capacity Act 2005: Code of Practice . London: HMSO. Department of Health (2004) Advice on the Decision of European Court of Human Rights in the Case of HL v UK (the ‘Bournewood’ case) . Gateway Reference 4269. London: Department of Health. 74 74 SAFEGUARDING ADULTS TOGETHER UNDER THE CARE ACT 2014 74 DL v A Local Authority & Ors (2012) EWCA Civ 253. Royal Courts of Justice. London: Crown Copyright. Hardy, R (2017) Safeguarding Adults Who Have Mental Capacity: Key Principles. [online] Available at: www. communitycare.co.uk/2017/12/04/safeguarding-adults-mental-capacity-key-principles (accessed 19 July 2019). Law Commission (2018) Reforming the Law: Mental Capacity and Deprivation of Liberty . [online] Available at: www.lawcom.gov.uk (accessed 19 July 2019). Law Society (2015) Identifying a Deprivation of Liberty: A Practical Guide . London: The Law Society. Ministry of Justice (2008) Mental Capacity Act 2005: Deprivation of Liberty Safeguards. Supplement to the Main Code of Practice . London: HMSO.

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  Mental Capacity Legislation

  Principles and Practice

  • Rebecca Jacob, Michael Gunn, Anthony Holland(Authors)
  • 2019(Publication Date)
  • Cambridge University Press

    (Publisher)

  The Code of Practice 3 accompanying the Deprivation of Liberty Safeguards legislation provides examples of acts that may, when taken together, under principles as above, amount to a Deprivation of Liberty, including; 1. The person is not allowed to leave the hospital or care home. Restrictions that are put in place for the person’s protection would not necessarily amount to a Deprivation of Liberty. 2. The person has no or very limited choice about their life within the care home or hospital staff exercise control over assessments, treatment, care and movement within the environment. 3. The person is not able to maintain contact with the world outside of hospital or care home staff exercise control over contacts/access to other people. 4. Restraint is/was used on admission and the person is not realistically allowed to leave. Carers would not be allowed to discharge. (This must be read in conjunction with recent case law specifying the ‘acid test’ that constitutes Deprivation of Liberty, and which will be discussed more fully later in this chapter (Supreme Court Cheshire West and Chester Council v. P). Deprivation of Liberty Safeguards: Past, Present and Future 57 Additionally, the Code of Practice specifies that the duration of restrictions is of paramount importance in deciding whether they constitute Deprivation of Liberty; actions that are immediately necessary to prevent harm may not, in isolation, be sufficiently restrictive to constitute a Deprivation of Liberty. A prolonged journey to an institution or a period of travel that requires a person to be ‘more than persuaded or restrained’ (being neither too prolonged a restraint to justify a DoLS, nor too great a restriction to be lawful under MCA legislation) may, however, require a one-off order from the Court of Protection. The less autonomous an individual becomes within a care environment, the more that person moves towards a position of being deprived of their liberty.

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  How to Manage Dementia in General Practice

  • Nicholas Clarke, Farine Clarke, Denzil Edwards(Authors)
  • 2013(Publication Date)
  • BMJ Books

    (Publisher)

  Surprisingly there is no formal definition of the Deprivation of Liberty. This means GPs and others involved in a patient's care will have to judge whether or not a restriction on their freedom is appropriate and proportional for them. At a formal level, cases which have been defined as a Deprivation of Liberty include:

  • restraining a patient in order to bring them into hospital;
  • giving medication against a patient's will;
  • staff taking all decisions about a patient including choices about assessments, treatment and visitors;
  • staff refusing to discharge a person to others or restricting access to their family or friends
  • However, repeated attempts by a patient to leave do not justify Deprivation of Liberty safeguards in themselves, if repeated reassurance and discussion successfully distracts or terminates the apparent desire to do so. Also, locked doors are not necessarily a Deprivation of Liberty if there is a route or pathway by which a patient can leave. They should either know about this already, be told about it, or be able to ask staff about it.

  What duties do GPs have towards their patients about Deprivation of Liberty?

  Should a GP have reason to believe that a patient is being deprived of their liberty but that they have capacity and the staff insist there is no problem, they will rightly need to resolve the issue. Ideally the care staff will engage with the GP to ensure the patient has a means of redress, such as being able to leave with staff. However, if they do not then the GP is right to inform the Deprivation of Liberty Office, who will undertake an assessment for Deprivation of Liberty Safeguards.

  If a GP feels a patient in a residential home is subject to Deprivation of Liberty and this is justified, they should also check that a Deprivation of Liberty Certificate is in place. It is against the law to deprive a patient of their liberty without an ‘authorisation’ to do so in place for that patient. Managers of care homes have to apply for such authorisation for every patient and this is made in writing to a supervisory body. In an emergency the management can grant itself urgent authorisation lasting for 7 days at the same time as applying for standard authorisation. This lasts for a maximum of 12 months before it must be renewed.

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  The Right to Liberty and Security versus Counter-Terrorism under International Law

  Analysing the Ethiopian legal and institutional frameworks as a case study of an 'authoritarian state'

  • Shimels Sisay Belete(Author)
  • 2018(Publication Date)
  • Books on Demand

    (Publisher)

  37 Accordingly, the term is used in the entire dissertation, not in a sense of that of the very gross conception of liberty, which inculcates probably all rights of mankind in the quest for the thickest notion of human freedom, but rather in its narrowest and thinnest meaning of the expression implying to the person’s physical containment. 38 6.3. The Scope of the Right and Legitimate Deprivation of Liberty: Interpreting the Normative Contents Be it to the placation of all or only to the few, and enough of such a treacle, it has been conceded that the person’s right to liberty remains to be a natural entitlement, com-prising of both substantive and procedural components, but enfolded by, and subject to, legitimate grounds for its deprivation. This section provides the interpretational baseline and benchmark as to the meaning and scope of the right as provided in inter-national human rights instruments. Accordingly, the two binding instruments ratified 34 Human Rights (CCPR) Committee, General Comment No. 35, Art. 9 (Liberty and Security of person) , CCPR/C/GC/35, 16 December 2014, para. 67. 35 Ibid., para. 2. 36 Jim, L. M. (ed.), Art. 5 of the European Convention on Human Rights: The Protection of Liberty and Security of Person , Council of Europe, Strasbourg, 2002; as cited in Nowak, supra note 1, p. 212. 37 Ibid. At times, there seems to have a tendency of intermingling the scope and content of liberty with other less boundary-based confinements like freedom of movement and forced residential expulsions as provided under Art. 12 of ICCPR. 38 CCPR Committee, General Comment No. 35, Art. 9 (Liberty and Security of Person) , supra note 34, paras 3 and 5. See more in this regard the opinion of the Committee in its decision on the individual communication: Wackenheim vs. France , CCPR/854/1999, para. 63. 290 by Ethiopia – the universally applicable Art. 9 of ICCPR 39 and Art.

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