1. Deprivation of liberty screening tool
Mental Capacity Act Project Team

2. Aims and objectives of the session
Understand liberty and a deprivation of liberty
Be able to use the screening tool to scope the scale of deprivation of liberty in the community
Why use the tool?
First and foremost it’s about people and their rights
To identify the scale of deprivation of liberty and to be able to plan a response and identify the resources need

3. The principles: 1. The assumption of capacity
We always start by assuming everyone we work with has capacity to make their own decisions, until there is evidence to suggest otherwise
This principle protects the right of adults to make their own decisions
If we claim someone we are working with lacks capacity we must provide proof – this proof is the two stage assessment of capacity, it is up to us to prove the person lacks capacity it is not up to them to prove they have capacity
Therefore we are required to gain our patient’s consent to provide care, treatment or support, we must respect the rights of our patient’s to refuse treatment if they have capacity to decide.

4. The principles: 2. Maximising capacity
Before it can be claimed that someone lacks capacity everything practical must be done to enable them to make a decision for themselves
Using different forms of communication / providing information in an accessible format
Having a structured programme to improve the person’s capacity (i.e. through education)
Treating any medical condition that may be impairing the person’s capacity
In emergency and urgent situations we may not have time to provide additional support and information and may have to make an assessment of the patient’s capacity there and then

5. The principles: 3. People can make unwise decisions
A person shouldn’t be treated as unable to make a decision, because the decision they make appears unwise to others
We all have different values, wishes and beliefs
We shouldn’t confuse an assessment of the person’s capacity with an assessment of what we believe is in their best interests, the assessment isn’t on the basis of whether the person choose what you think is the right choice
Different people give different weight to different things

6. The principles:
4. Act in the best interests of people who lack capacity
Follow the best interest checklist
Best interests is a person centred process which should focus on the values, wishes and beliefs of the person and what they would consider if they were making a decision for themselves
The exception to the best interests principle is if the person has made a valid advance decision to refuse treatment, or is being involved in research, as other safeguards apply in these circumstances
If someone holds a valid and applicable Lasting Power of Attorney (LPA) they may be acting as the decision maker, however they must still act in the best interests of the person

7. The principles:
5. Act in the least restrictive way of people who lack capacity
Before the decision is made consideration should be given to whether there is a less restrictive course of action
Best interests decision making is restrictive as the person is no longer in control over the decision
Can we avoid making a decision on the person’s behalf?
Can we delay the decision so that the person can make it for themselves if they can regain capacity?
Can we act in accordance with their views?
How can we facilitate the person having the most amount of personal freedom?

8. What does it mean for you?
What is liberty?
A human right
Free will
What does it mean for you?
Personal freedom
Lady Hale described the “…right to physical liberty. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty.”

9. What is a deprivation of liberty?
Not being free to leave
Can only go out with supervision
Not allowed to live elsewhere
Restrictions over social contacts
Supervision and control
Lady Hale - “A gilded cage is still a cage.”

10. What is a deprivation of liberty?
Arrested by the Police
Detained under a section of the Mental Health Act
The above is in accordance with a procedure proscribed by law
A deprivation of liberty is unlawful unless it has been authorised by a procedure proscribed by law

11. What is a deprivation of liberty?
There must be the following three elements for a deprivation of liberty to be occurring:
An objective element of confinement in a particular restricted space for a not negligible length of time
A subjective element of a lack of consent, because the person lacks capacity to consent to the care, treatment and / or accommodation that deprives them of their liberty
The deprivation of liberty must be one for which the state is responsible, through paying for, arranging and / or providing the care, treatment and / or accommodation that deprives the person of their liberty

12. History of the Deprivation of Liberty Safeguards (DoLS)
The most important cases:
HL – Bournewood Gap
The case that led to the Deprivation of Liberty Safeguards
Surrey (MIG & MEG)
Cheshire West (P)
These cases led to the Supreme Court ruling that outlined the ‘Acid Test’
Re X
Streamlined Court of Protection application process for authorising deprivation of liberty in community settings

13. HL v UK - the Bournewood Gap
HL was an adult male who was autistic and had profound learning disabilities
He had lived in Bournewood Hospital from the age of 13 for over thirty years
In 1994 he was discharged into the community to live in an adult foster placement with carers Mr and Mrs 'E'
On 22 July 1997 HL became agitated at a day centre he attended, and was admitted to the Accident and Emergency Department at Bournewood Hospital under sedation
Due to the sedative, HL was compliant and did not resist admission, so doctors chose not to admit him using powers of detention under the Mental Health Act
HL never attempted to leave the hospital, but his carers were prevented from visiting him in order to prevent him leaving with them
Mr and Mrs 'E' sought a judicial review of the decision to detain HL

14. HL v UK - the Bournewood Gap
Case was before the introduction of the Human Rights Act (1998) & the Mental Capacity Act (2005) - the House of Lords considered whether HL had been unlawfully detained under the common law, which they found he hadn’t
Although HL was in fact released back into the care of Mr and Mrs E in December 1997 after being held in hospital for five months, the case was taken to the European Court of Human Rights (ECHR)
The ECHR found that HL had been deprived of his liberty
The ECHR said that the deprivation of liberty had not been in accordance with a procedure proscribed by law – therefore the Deprivation of Liberty Safeguards is the UK’s response to bridge the Bournewood Gap and provide a procedure in law for assessing and authorising deprivation of liberty, where it is in the best interests of an adult who lacks capacity to consent to those arrangements
The Deprivation of Liberty Safeguards apply in Hospitals and Care Homes registered under the Care Standards Act (2000)

15. Deprivation of liberty Hospitals and care homes
Right to Liberty protected by Article 5 of the Human Rights Act 1998
Deprivation of liberty unlawful unless authorised by a process in law
Deprivation of liberty will only be authorised if the person lacks capacity to consent to those arrangements, the deprivation is found to be in their best interests and it is a proportionate response to the likelihood of harm and the seriousness of that harm
Hospitals and care homes
Community Settings
Registered under the Care Standards Act 2000, only applies to adults over 18 years old
Person’s own home, supported living, sheltered or supported housing, or for applications relating to under 18s
Authorised through the Deprivation of Liberty Safeguards (DoLS)
Authorised by application to the Court of Protection
6 assessments carried out by Best Interests Assessor and Mental Health Section 12 Doctor
Re X two tier application process:
Table top exercise
Full hearing
Standard Authorisation granted
Court or Personal Welfare order granted
Authorisations can be granted for up to, but no longer than 12 months
Relevant Person’s Representative (RPR) and / or Independent Mental Capacity Advocate (IMCA) involved
Lady Hale described the “…right to physical liberty. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person.”

16. The ‘Acid Test’ 3 separate cases P – Cheshire West, MIG & MEG – Surrey
Cases were in community settings therefore outside of the scope of the Deprivation of Liberty Safeguards which apply in hospitals and care homes and therefore required authorisation from the Court of Protection (as a deprivation of liberty is unlawful unless authorised in accordance with law)
Lady Hale stated in the judgement that it is “…axiomatic that people with disabilities, both mental and physical, have the same human rights as the rest of the human race.”

17. The ‘Acid Test’
Supreme Court ruling sought to clarify the definition of a deprivation of liberty. A person is held to be being deprived of their liberty if they are:
Not free to leave
It’s is not relevant to whether the person is being deprived of their liberty if the person has never tried or been prevented from leaving, what is relevant is whether the person would be prevented from leaving the institution if they did try to leave
Under continuous supervision and control
Continuous supervision and control has not been defined, this does not necessarily mean that the person is supervised at all times of the day, significant periodic observation could qualify as continuous supervision and control, additionally this could be through the use of assistive technology, i.e. pressure pads, doors alarms etc.
Helpful briefing paper clarifying the meaning of ‘not free to leave’ and ‘continuous supervision and control’:

18. Two tier application process
Re X
Case that identified a streamlined process for making applications to the Court of Protection to authorise deprivation of liberty in the community
Two tier application process
Table top exercise
Full hearing
Fixed cost
Not fixed cost
Only evidence is from the applicant
P (and others) is a party to proceedings
For non contentious cases only (essentially an approval of the care planning that constitute the deprivation of liberty)
For cases where there is a dispute or the care planning that has been submitted for table top exercise is not clear

19. The screening tool
The amount of people being deprived of their liberty in the community is not known at the moment and part of the purpose of the tool is to scope the numbers of people at risk of being deprived of their liberty, this will aid future resource planning in assessing the number of applications to the Court of Protection that will be required
Fairly simple and efficient to use
The overall purpose of the tool is to promote the best possible practice to safeguard people’s rights and ensure compliance with the legislation
Excel wordbook for recording data and outcomes
We will arrange a further follow up session to discuss how you have found using the Screening Tool and make any amendments based on your feedback
Please take your hand-outs and MCA prompt card

20. The screening tool Two tiers of risk High risk Medium risk
P is at a high risk of being deprived of their liberty in light of the ‘Acid Test’
P at a medium risk of being deprived of their liberty, more in-depth review required
Authorisation is very likely to be required
Authorisation may be required

21. Any questions ?