The Mental Capacity Act 2005 ("the Act") covering Wales and England provides a statutory framework for acting and making decisions on behalf of people who lack the capacity to make those decisions for themselves.

In April 2009, additional safeguards were introduced in to the Act for people who lack capacity to consent to treatment or care that is determined, by others, to be in their best interests, or which will protect them from harm. The Deprivation of Liberty Safeguards (DOLS) process applies where that treatment or care is provided in circumstances which might involve depriving that person of their liberty. A critical issue in the DOLS process for staff therefore, is the identification of when a patient is, or is at risk of, being deprived of their liberty.

The following is an edited extract from Professor Richard Jones’ Mental Health Act Manual (12th edition) which provides useful guidance on this key issue.

In HL v United Kingdom (2004) 40 E.H.R.R. 32, the European Court of Human Rights held that in order to determine whether a person has been deprived of his or her liberty for the purposes of Art.5 (1) of the European Convention on Human Rights, the starting point must be the specific situation of the individual concerned. Account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and a restriction upon, liberty is merely one of degree or intensity and not one of nature or substance (para.89).

On the facts of the case, the correspondence between HL’s carers and his psychiatrist reflected both the carer’s wish to have HL immediately released to their care and, equally, the clear intention of the health care professionals to exercise strict control over his assessment, treatment, contacts and, notably, movement and residence. HL would only be released from the hospital to the care of his carers as and when the professionals considered it appropriate.

It followed that HL was being deprived of his liberty because "professionals treating and managing [HL] exercised complete and effective control over his movements" in that he "was under continuous supervision and control and was not free to leave" [to return to the care of his carers] (para.91). The fact that HL might have been on a ward which was not "locked" or "lockable" was not determinative (para.92). With regard to HL’s compliance to his admission, the Court observed that "the right to liberty is too important in a democratic society for a person to lose the benefit of Convention protection for the single reason that he may have given himself up to be taken into detention" (para.90).

There is no definitive legal test for establishing what will amount to a deprivation of a person’s liberty and that the core element of a deprivation of liberty is confinement. (Secretary of State for the Home Department v E). An analysis of European and domestic case law suggests that the circumstances in which a court might find that there had been a deprivation of liberty include the following:

• Force, threats or medication being used to overcome the patient’s resistance to being taken to the hospital or care home. However, a deprivation of liberty will not occur if the force used constitutes restraint which is authorised by section 6 of the Mental Capacity Act 2005.
  
• Subterfuge being used to ensure the patient’s cooperation in being taken to the hospital or care home, e.g. the patient being misled into believing that he or she will return home the next day.
  
• The decision to admit the patient to the hospital or care home being opposed by relatives and/or carers who either live with, or are closely involved in, caring for the patient. Or a request by them for the patient to be discharged to their care being denied. Given the judgments in HL v United Kingdom and JE v DE and Surrey County Council, the presence of this factor alone would usually lead to a conclusion that the person is being subjected to a deprivation of liberty. However, in LLBC v TG, JG and HR, McFarlane J. accepted a submission of the Official Solicitor that the fact that some family members opposed the placement of TG in a care home was not sufficient to change the character of circumstances which would not otherwise amount to a deprivation of liberty. The factors given the most weight by the court in coming to this conclusion were: (i) the care home in question was an ordinary care home with ordinary restrictions on liberty; (ii) the family were entitled to visit TG on a largely unrestricted basis and were entitled to remove him for outings; (iii) TG was compliant, happy and objectively content with his situation; and (iv) there was no occasion where TG was objectively deprived of his liberty.
  
• Force or a locked door being used to prevent the patient from leaving the hospital or care home in a situation where the patient is making a purposeful attempt to leave and he or she cannot be persuaded to desist.
  
• An assessment concluding that the patient would make a purposeful attempt to leave the hospital or care home if he or she had the physical capacity to do so.
  
• Threats being used to dissuade the patient from making an attempt to leave the hospital or care home.
  
• Medication being used for the primary purpose of preventing the patient from making an attempt to leave the hospital or care home.
  
• A decision by the hospital or care home to deny or severely restrict access to the patient by relatives, carers and/or people with whom the patient enjoys a significant relationship.
  
• The patient’s access to the community being denied or severely restricted in a situation where the patient would be capable of benefiting from such access.

It is suggested that the following restrictions on a patient’s liberty would not, by themselves, constitute a deprivation of liberty:

• Restraint which is authorised by section 6 of the 2005 Act being used: (i) on a non-compliant patient during the patient’s conveyance to the hospital or care home; (ii) to feed, dress or provide medical treatment for the patient; or (iii) to protect the patient from harm.
  
• The patient being treated or cared for in a locked environment.
  
• The design of door handles or the use of key pads making it difficult for a confused patient to leave the hospital or care home.
  
• Staff bringing a patient who has wandered back to the hospital or care home using restraint authorised by section 6 of the 2005 Act if necessary.
  
• The short term use of statutory or common law powers to restrain the patient from causing harm to others or to property.
  
• Dissuading a confused patient from attempting to leave the hospital or care home, using benign force (i.e. force that is not being used to overcome significant resistance) if necessary. This would be the case even if the confused patient had attempted to leave the premises on more than one occasion.
  
• Placing reasonable limitations on the visiting of the patient by relatives or carers.
  
• The patient’s behaviour, or care needs, requiring restrictions being placed on his or her movements and/or contact with others.
  
• A temporary refusal to let the patient leave the hospital or care home for health or safety reasons, or because of the unavailability of an escort.

Although none of these restrictions taken alone would constitute a deprivation of liberty, the cumulative effect of a number of restrictions could have such an effect (Guzzardi v Italy).

To discuss your individual requirements, whether advice or training, please contact Richard Jones or Eve Piffaretti.