The Deprivation of Liberty Safeguards were introduced in 2009 in a bid to protect people’s human rights. In particular, they were introduced to plug the cap that was left where people weren’t eligible to be detained under the Mental Health Act but needed to be detained (sometimes against their wishes) in a care home or hospital. Since 2014, people’s awareness of the Deprivation of Liberty Safeguards has increased following a Supreme Court ruling that significantly reduced the threshold of who is considered to be deprived of their liberty.
It’s unlawful for a care home or hospital to deprive a person of their liberty without the correct safeguards in place because it breaches their human rights. Human rights are universal, so it doesn’t matter whether a person has dementia, poor mental health, learning disabilities or is in a minimally conscious state, it’s not lawful for them to be deprived of their liberty without due process being followed and certain safeguards adhered to.
Sometimes, people need to live in a care home or receive their healthcare in a hospital. Those that can consent to such arrangements have the option of deciding for themselves. It might not always be the wisest of decisions to discharge oneself from hospital until they have received the necessary treatment, but people have the freedom to make such decisions without the interference of others.
However, some people lack the mental capacity to make such decisions and have their decisions made by others. This may be an attorney or deputy appointed by a court, or it may be a best interests decision made by someone else. The Deprivation of Liberty Safeguards provide a set of safeguards for people who need to live in a care home or stay in a hospital and can’t make the decision whether to themselves.
The Deprivation of Liberty Safeguards process starts with a request from the care home or hospital to the local authority (the body who authorise deprivations of liberty in care homes and hospitals). Following this, an assessment is completed by a specially trained health or social care professional called a Best Interests Assessor. The Best Interests Assessor will undertake a series of assessments to ensure that the person; lacks the mental capacity to make the decision for themselves, is objectively deprived of their liberty and that the deprivation of liberty can be attributed to the state. The Best Interests Assessor will also ensure that the specific circumstances of the person are in their best interests and a proportionate response to the harm that would otherwise be present if the person wasn’t deprived of their liberty. If all these are satisfied, the Best Interests Assessor will recommend that the local authority authorises the deprivation of liberty and for how long it should be authorised.
Once the authorisation has been granted, there are additional safeguards for the person. First, they are appointed a representative who can challenge the deprivation of liberty by requesting a review of the authorisation or taking the matter to the Court of Protection for a Judge to determine whether the deprivation of liberty is lawful. Second, the local authority can authorise the deprivation of liberty subject to certain conditions. Finally, the authorisation lasts a maximum of 12 months before it is reviewed again by a Best Interests Assessor.
The deprivation of Liberty Safeguards only apply to care homes and hospital. But of course, a person can be deprived of their liberty in other settings such as supported living and their own homes if the circumstances amount to a deprivation of liberty. In such cases, an application to the Court of Protection is required as there are no procedural safeguards that can be used by local authorities to authorise a deprivation of liberty.