Deprivation of liberty in light of the Supreme Court judgment: explaining the 2014 changes
This video explains the recent changes to the Deprivation of liberty (DoL) in light of the Supreme Court Judgment led by Lady Hale, which clarified that people who lack capacity to consent to the arrangements for their care and treatment have the same rights to liberty as anyone else.
Messages for practice
- People with care and support needs have the same rights as everyone else under the Human Rights Act.
- People cannot be deprived of their liberty without it being authorised by a legal process.
- The Supreme Court judgement clarified what may constitute a deprivation of liberty but the Mental Capacity Act (MCA) and the Deprivation of Liberty Safeguards have not been changed.
- Even in a system under pressure, don't lose sight of the fundamental rights aspects of the MCA.
Who will find this useful?
Care home managers, registered managers, care providers, hospital managers, social workers, best interests assessors, independent mental capacity advocates, people with care and support needs and their families, and people who use services.
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Video transcript Open
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00:00:15 MCA: Deprivation of Liberty (DoL) in the light of the Supreme Court judgment
VO
00:00:23 The European Convention on Human Rights, states that everyone has the right to liberty and security, regardless of mental capacity or disability.
00:00:34 In this film, consideration is given to the Supreme Court judgment on Deprivation of Liberty led by Lady Hale, which clarified that people who lack capacity to consent to the arrangements for their care and treatment have the same rights to liberty as anyone else.
Alex Ruck-Keene, Barrister, 39 Essex Chambers:
00:00:50 Well the Supreme Court were responding to Article 5 of the European Convention on Human Rights, which provides very very strict limits on when the state can deprive people of their liberty on the basis that they are unsound in mind. There are very carefully circumscribed circumstances. I think it is actually also right to say that when you look at what Lady Hale is saying, and she gives the judgment, the lead judgment, for the majority, what Lady Hale is really looking at is not so much in a funny sort of way Article 5, which is the right to liberty, but Article 8, which is the right to private life, which the European Court of Human Rights and our courts have interpreted as including the right to autonomy.
VO
00:01:29 Here, a panel of MCA experts look at the implications for practice of the Supreme Court judgment ruling and the huge increase in requests for authorisations under the Deprivation of Liberty Safeguards.
Rachel Griffiths, MCA Practice Consultant and MCA National Professional Advisor to CQC:
00:01:43 We have all come here together today because it’s been about a year now since the Supreme Court gave its landmark ruling really about Deprivation of Liberty, which has caused a huge amount of interest in our world, the world of the Mental Capacity Act and DoLS. How has the Supreme Court judgment about Deprivation of Liberty changed what a Best Interests Assessor, or Independent Mental Capacity Advocate looks for in a care home or hospital ward?
Janet Tudor, Best Interests Assessor, Cambridgeshire County Council:
00:02:16 I’d be looking at the acid test, which is something that came from the Supreme Court judgment, I would be looking to see if there’s a least restrictive way of doing whatever’s required to care for the person.
Tim Hunter, Independent Mental Capacity Advocate and Service Manager, Voiceability
00:02:30 Because the principles of the MCA haven’t changed, when an IMCA goes to work with a person they’re looking primarily at what that person is saying, what they are articulating, what they are communicating to an advocate. Factors around could that have been done less restrictively are certainly at the forefronts of our mind, but really trying to put that person to the forefront of the decision. And that hasn’t changed.
Alex Ruck-Keene, Barrister, 39 Essex Chambers:
00:02:56 There’s been a perception that the law changed completely in March 2014 as a result of the Supreme Court decision in Cheshire West. For reasons we don’t need to go into, actually that may not be correct, it’s just simply a clarification of the position as it has always been. But the perception is very much that there has been a change. And that change has been seen as lowering the threshold for what counts as a Deprivation of Liberty and expanding the scope of the number of people who are considered to be deprived of their liberty. And the change that most people have picked up on is the use by Lady Hale in the Cheshire West decision of the term ‘the acid test’ to say whether or not someone is deprived of their liberty.
VO:
00:03:39 The ‘acid test’, the phrase used by Lady Hale to determine whether someone is deprived of their liberty, is comprised of two criteria: Is the person under continuous supervision and control? And is the person free to leave?
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00:03:39 The acid test. Is the person under continuous supervision and control? Is the person free to leave?
Rachel Griffiths, MCA Practice Consultant and MCA National Professional Advisor to CQC:
Given the real pressures on the DoLS processes how can the DoLS managers make sure that they’re sending assessors in the right order to respond to the right requests?
Joseph Yow, Mental Capacity Act Manager, Cambridgeshire County Council:
00:04:08 This is a big challenge for us following the Supreme Court judgment because you know, up and down the country, supervisory body like us have been inundated with applications for standard authorisation. I think ADASS has quickly put together a group to try and address these challenges. And one of the outcomes of that group is the formulation of a priority list that has been sent out to all supervisory bodies and I think that is very helpful.
Janet Tudor, Best Interests Assessor, Cambridgeshire County Council:
00:04:45 One of the issues for Best Interests Assessors is I think that quite often there is a small period of opportunity to reverse what’s happened, and if someone is somewhere they don’t want to be, and someone’s got a lasting power of attorney, and they’ve decided that they’re going to sell that person’s home, by the time we get there maybe the house has been sold, and possibly the view might be that they would be ok to go somewhere else with a full package of care. And they could’ve returned home, but home isn’t there anymore, and you really feel that the boat has sailed for that person.
Rachel Griffiths, MCA Practice Consultant and MCA National Professional Advisor to CQC:
00:05:27 What do you think are the practical things that people involved in the DoLS process, so that’s the Best Interests Assessors, and the IMCAs, and the authorisers, can do to protect and enhance the human rights of the people who are being deprived of their liberty?
Tim Hunter, Independent Mental Capacity Advocate and Service Manager, Voiceability:
00:05:47 From my perspective, it’s to not lose sight of the principles of the Act in the first place, and to continue using those, and using them in confidence.
Janet Tudor, Best Interests Assessor, Cambridgeshire County Council:
00:05:56 You need to find out why someone’s behaving in a particular way or what they’re trying to do. Because it’s really easy to misunderstand what someone is doing if they’re in a restricted environment.
Lorraine Currie, MCA DoLS Manager, Shropshire County Council, ADASS Lead MCA/DoLS
00:06:07 Sometimes it’s about understanding the person’s life story, isn’t it. And sometimes BIAs, because of the way they - well, often BIAs, because of the way they approach assessments, pick up on these things. And they ask the questions of care homes, why is that door locked, why would it not be safe to do this? Sometimes they’ve done something and they’ve done it for a number of years, and not revisited it, not reviewed it, not looked at a less, a genuine less restrictive way of doing things.
VO and words on screen:
00:06:40 Best practice for BIAs and IMCAs is to
Focus on the least restrictive option that bears in mind the person's views and opinions and
Find the best solution with the right communication for each individualAlex Ruck-Keene, Barrister, 39 Essex Chambers:
00:06:57 Well the good BIAs I talk to, when they’re wondering how they can use DoLS properly, they always see it as something they can really use as a tool to empower people. They can really think creatively, they can put really creative conditions on a standard authorisation to make sure that what is going on really is - not just calibrated to make sure that restrictions are as little as possible, but actually make sure that really good things happen. Make sure that conditions are put in to say that the care home must allow the person to go to the church that they’d always gone to for 50 years. Do things - on one view little things, but things that make a massive difference to that person’s day to day life. So as I say the good BIA assessors really think that they can do some good with DoLS authorisations.
Tim Hunter, Independent Mental Capacity Advocate and Service Manager, Voiceability:
00:07:45 With my advocacy hat on, it’s always got to be about the person, and what they want, and doing everything possible to make sure that their views are not only listened to, but their whole person is at the forefront of the decision making process. And finding innovative ways to support that person to be involved. I think that’s got to lead these kinds of decision making processes. Because I think the danger is that people can feel alienated. And the person drops out and this becomes process driven as opposed to person driven, and I think there are lots of committed professionals, lots of committed advocates and decision makers who really want to put people at the centre of it. There are challenges, but I think we mustn’t lose sight of what the Act tells us.
Alex Ruck-Keene, Barrister, 39 Essex Chambers:
00:08:27 It’s vitally important that Best Interests Assessors and others involved with the DoLS process and also Deprivation of Liberty outside hospitals and care homes take proper steps to keep themselves abreast of legal developments. Because this is a legal landscape that changes. And they absolutely have to make sure they know what’s going on at any one time as a matter of law.
Title: Key Learning Points
People with care and support needs have the same rights as everyone else under the Human Rights Act
People cannot be deprived of their liberty without it being authorised by a legal process
The Supreme Court judgment clarified what may constitute a deprivation of liberty but the Mental Capacity Act (MCA) and the Deprivation of Liberty Safeguards have not changed
Even in a system under pressure, it is important not to lose sight of the fundamental human rights aspects of the MCA