Deprivation of Liberty Safeguards
The deprivation of liberty safeguards address the October 2004 European Court of Human Rights judgment in HL v the United Kingdom (the Bournewood judgment), which requires that people may only be deprived of their liberty through a process set out in law, with safeguards to prevent arbitrary detention and speedy access to a Court to review the detention. The safeguards cover England and Wales.
The safeguards are designed to protect the interests of an extremely vulnerable group of service users who are cared for in hospitals or care homes and to:
· ensure people can be given the care they need in the least restrictive regimes;
· prevent arbitrary decisions that deprive vulnerable people of their liberty;
· provide safeguards for vulnerable people;
· provide them with rights of challenge against unlawful detention;
· avoid unnecessary bureaucracy
The aim is to implement the safeguards in April 2009.
Some key points
· The deprivation of liberty safeguards are in addition to and do not replace other safeguards in the Mental Capacity Act
· Any action taken under the deprivation of liberty safeguards must be in line with the key principles of the Mental Capacity Act
· Deprivation of liberty is for the purpose of providing treatment or care under the Mental Capacity Act, and does not authorise it
· It is essential that hospital and care home managers and assessors understand the distinction between deprivation and restriction of liberty
· Every effort should be made to avoid instituting deprivation of liberty care regimes wherever possible
· Local authorities, PCTs, hospitals, care homes and other key stakeholder organisations need to work in partnership to deliver DoL safeguards and reduce the numbers referred unnecessarily for assessment.
Deprivation of liberty safeguards - Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice
The draft Code of Practice was laid in Parliament on 13 June 2008 and must lay there for 40 days without challenge before being passed.
The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008
The Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) Regulations 2008
Both sets of regulations have been debated in both Houses of Parliament and were passed on 3 July
Deprivation of Liberty Safeguards briefing sheet [gateway ref. 8965]
Deprivation of Liberty Safeguards frequently asked questions [gateway ref. 9381]
Deprivation of Liberty Safeguards implementation tool
DH has developed an implementation tool that local MCA implementation networks may wish to use when estimating the number of assessments and staff that are likely to be required in 2009/10.
Regulatory impact assessment of the Mental Capacity Act 2005 deprivation of liberty safeguards to accompany the Code of Practice and regulations.
