SCIE Practice guide 09: Dignity in care

Promoting dignity within the law: Relevant articles in the Convention of the Human Rights Act

Article 5: a right to liberty and security

This means that a person can be detained only in certain circumstances, following a proper, lawful procedure that provides the detainee with opportunities to challenge their detention.

Tribunals and courts that hear challenges to detention must conform to a high standard of procedural protection. When three prisoners challenged the operation of the parole board, the court found that the structure of the parole board and the way that it was controlled by the Secretary of State were such that it did not enjoy the independence from the executive necessary for a court under Article 5. [R. (on the application of Brooke) v Parole Board (2007)]

The significance of Article 5 was illustrated by what has become known as the Bournewood case. The European Court of Human Rights held that the routine detention of incapacitated adults in the UK was in breach of their Article 5 rights. In its judgment the European Court said that:

The key factor in the present case [is] that the healthcare professionals treating and managing the applicant exercised complete and effective control over his care and movements and the applicant was under continuous supervision and control and was not free to leave.

As a result, the government introduced the Deprivation of Liberty safeguards (under the Mental Health Act 2007).

Understanding the Deprivation of Liberty (Bournewood) safeguards

Briefly, the managers of care homes or hospitals who identify that a person who lacks capacity is being (or risks being) deprived of their liberty, must apply to a ‘supervisory body’ for authorisation of the deprivation of liberty, unless it would be appropriate to detain the person under the Mental Health Act 1983 or 2007.

When a person in this position is staying in a care home the supervisory body will be the relevant local authority. Where the person is in a hospital it will be the relevant primary care trust, or, in Wales, the National Assembly for Wales. In an emergency, the care home or hospital management can itself provide an urgent authorisation supported by written reasons for a maximum of seven days.

The safeguards are explained in more detail in the Mental Capacity Act 2005: Deprivation of Liberty Safeguards, a draft addendum to the Mental Capacity Act 2005: Code of Practice. This is an essential read for practitioners working with people with ‘mental disorders’ in care homes and hospitals.

Practice points

It may be difficult for care homes or hospitals to recognise that someone is being deprived of their liberty. Organisations must ensure that they have systems in place to consider whether care plans deprive an ‘incapacitated’ adult of his or her liberty. Staff must keep these cases under review and ask the question about deprivation of liberty explicitly whenever a change is made to the care plan. This should be recorded in the person’s health and care records.
Indications that liberty has been deprived could include: sedating a patient who is resisting admission, any decision that the person would be prevented from leaving if they made a meaningful attempt to do so and refusals of requests by carers for the person to be discharged to their care.
The Code of Practice to the Deprivation of Liberty safeguards will be invaluable and should be easily accessible to staff in care homes and hospitals, and training should be taken up as soon as it is available.

Practice example

Mrs Bailey made arrangements to enter a care home when she could no longer walk and needed a lot of help looking after herself. Over the past months she has become increasingly confused and has been diagnosed with vascular dementia. She often tries to leave the home to ‘go to school’ and staff persuade her to come back. This seems to be the sensible thing to do, but at a care review, her key worker raises with the home’s manager the question of their right to do this: might this be construed as depriving Mrs Bailey of her liberty? They decide to contact the local office of adult services and ask to have the legal position clarified.