Last week the Law Commission suggested radical reforms to the Deprivation of Liberty Safeguards, controversial rules on how the state should protect people who lack mental capacity. Here we take a closer look at the both the safeguards and the proposed reforms.
What do we mean by Deprivation of Liberty?
Liberty is a fundamental right, recognised since Magna Carta and protected by Article 5 of the Human Rights Convention.
Taking away a person’s liberty is one of the greatest punishments the state can inflict. But sometimes it’s necessary to detain people, or limit their liberty, in order to help them.
The meaning of ‘deprivation of liberty’ was considered by the Supreme Court in an important case known as Cheshire West. Here, the court said that a person was deprived of their liberty if they were subject to continuous supervision and control, and were not free to leave. This is a broad definition and has proved controversial because it could cover people who looked after at home, for example.
Who is protected by the Safeguards?
The Deprivation of Liberty Safeguards should be used wherever the state is detaining someone who lacks capacity under the Mental Capacity Act. These are generally vulnerable people who are not able to make their own decisions. For example, people with learning difficulties or conditions such as autism or dementia who struggle to hold on to and process information so as to reach a decision.
It may be necessary to restrict their liberty to care for them properly, or to prevent them from injuring themselves or getting lost.
Where people without capacity are being deprived of liberty in this way – in a hospital, for instance, or a care home – the Deprivation of Liberty Safeguards apply to protect their human rights.
The safeguards don’t apply to people who need to be detained to protect them from themselves or others because of mental health issues. In those cases, the Mental Health Act governs their detention and other legal protections apply.
What are the Safeguards and why do we need them?
The Deprivation of Liberty Safeguards exist to make sure that detention is in your best interests.
They do this by setting out a procedure which has to be followed. First, any deprivation of liberty needs to be authorised. Before it’s authorised, six tests are carried out. These assess whether:
- You are over 18;
- You have a ‘mental disorder’ (this is the term used in the legislation);
- You don’t have the capacity to make decisions yourself about what should happen;
- Being deprived of your liberty is the right thing for you (‘in your best interests’);
- You shouldn’t be sectioned under the Mental Health Act instead;
- You didn’t make a decision (known as an advanced decision) about what should happen to you when you did have capacity, such as a decision to refuse treatment.
The authorisation lasts for 12 months, but you can have more than one, and they can run on from each other.
You have the right to challenge the authorisation, either by asking the place that made it to review it, or by appealing to the Court of Protection.
Why have the Law Commission got involved?
The definition of people covered by the Safeguards is very wide-ranging, and has led to a huge increase in the number of people who need to go through the authorisation system. The scale of the increase – ten times as many people as previously – has placed a strain on local authorities and led to concerns that the system is failing vulnerable people. That’s where the Law Commission come in.
What are the new recommendations?
The Law Commission is a body set up to keep the law under review and recommend changes. They’ve looked at the Deprivation of Liberty Safeguards and issued a report. The Commission have concluded that the system is in crisis and proposed a new system altogether: the Protection of Liberty Safeguards.
What are the differences?
We’ve posted about the report in detail here. The main differences are that the new scheme will apply to 16-17 year olds and will apply to any setting.
The focus is on what is happening, not where it’s happening. It also puts more emphasis on the person’s own wishes (where those can be known) and on considering their rights.
For more information on this important topic:
- Find the Law Commission report and a summary here
- Click here for our summary of Cheshire West
- Read more about the Deprivation of Liberty Safeguards here
