Deprivation of liberty – current practice in the light of the recent Supreme Court judgment
01 June 2015
In March 2014, the Supreme Court issued a judgment on deprivation of liberty, which clarified what may constitute a situation whereby someone can legally have their liberty taken away.
The judgment has a big consequence for those people working in the area of mental capacity. As with any change, there’s likely to be some confusion over the future direction of practice in light of the judgement.
That’s why two new films and an updated briefing, launched today, will help those professionals in the frontline, and others. The resources, from the Social Care Institute for Excellence (SCIE), look at how sometimes there’s a case for depriving people of their liberty; for instance, when someone lacks the capacity to consent to their care and treatment. The case for the decision is taken in order to keep them and others safe from harm.
The new resources can be used by care home managers, registered managers, care providers, hospital managers, social workers, best interest assessors and independent mental capacity advocates, along with people with care and support needs and their families.
The three resources are:
- A film about how the Supreme Court judgment is having an effect in practice
- A film focusing on real-life case studies and how the judgment is being used
- An updated At a Glance briefing.
SCIE says that each case must be considered on its own merits, but there are some common themes when looking at whether to deprive people of their liberty; for instance, whether there’s a frequent use of sedation or medication to control behaviour; or, for instance, whether physical restraint is used to control behaviour.
However, 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.
SCIE’s Chief Executive, Tony Hunter, says:
It’s a sad fact that sometimes depriving someone of their liberty needs to be considered. Doing so should never be something that professionals do lightly – it’s a complex decision. The new films and the At a Glance Guide, all reflecting the important Supreme Court judgment, will be invaluable for staff working in the field. I love the bit where real-life case studies are discussed. There’s no simple answer to each dilemma that’s thrown up, but we must all strive to provide dignity and human rights, even if someone’s liberty is to be taken from them.
The films show a panel of Mental Capacity Act experts discussing the implications of the judgement, and also how practice has changed in light of the ruling, by looking in detail at two case studies.
Case study: Mr and Mrs Jones
Mr and Mrs Jones live at home. Both have dementia. Mrs Jones goes into hospital after a fall. After a while, Mr Jones is unhappy that his wife remains in hospital against his and her will. Hospital staff ask Mrs Jones to do a Standard Capacity Test before they consider discharging her. This involves using an electric kettle. Mrs Jones places it on top of a hob. Staff feel that Mrs Jones is in danger of harming herself. The hospital gives an emergency authorisation under the Deprivation of Liberty Safeguards.
The film’s panel, made up of two Mental Capacity Act managers, an independent mental health advocate and a best interest assessor, look at what could have been done differently in this scenario. It’s pointed out that Mrs Jones may have been used to using a different kettle at home and that the test used doesn’t necessarily guarantee that she is a potential harm to herself and others. It’s also pointed out that Mrs Jones became more agitated when she wasn’t discharged, causing further problems. One panellist wonders whether the hospital staff are being too risk averse. He wonders whether it’s more about the hospital getting its own way and not looking enough at the person involved.
At a Glance
The At a Glance briefing looks at how deprivation of liberty can be authorised under the Deprivation of Liberty Safeguards. It also focuses on urgent authorisations, safeguards for people who may be deprived of their liberty, when Deprivation of Liberty Safeguards can’t be used, and when deprivation of liberty happens without authorisation.
Since the judgment, the Mental Capacity Act (MCA) and the Deprivation of Liberty Safeguards have not changed.