DEPRIVATION OF LIBERTY SAFEGUARDS

Deprivation of Liberty Safeguards

Deprivation of Liberty Safeguards

Key points

• People who suffer from a disorder or disability of the mind, such as dementia or a profound learning disability, and who lack the mental capacity to consent to the care or treatment they need, should be cared for in a way that does not limit their rights or freedom of action.

• In some cases members of this vulnerable group need to be deprived of their liberty for treatment or care because this is necessary in their best interests to protect them from harm.

The European Court of Human Rights (ECtHR) in its October 2004 judgement in the Tery case (HL v UK) highlighted

that additional safeguards are needed for people who lack capacity and who might be deprived of their liberty.

• The Government is closing the "Tery gap" by amending the Mental Capacity Act 2005. The deprivation of liberty safeguards being introduced will strengthen the rights of hospital patients and those in care homes, as well as ensuring compliance with the European Convention on Human Rights (ECHR).

Introduction

The context for the deprivation of liberty safeguards in the Mental Capacity Act 2005 is the government commitment in the White Paper Our Health, Our Care, Our Say that people with ongoing care needs, whether their needs arise in older age, or through illness or disability, should be cared for in ways that promote their independence, well-being and choice. It follows from this that people should be cared for in the least restrictive regime practicable.

The Government does accept, however, that there will be some people who will need to be cared for in circumstances that deprive them of

Setting the Scene

The Mental Health Act 2007,which received Royal Assent in July 2007, as well as amending the Mental Health Act 1983, was used as the vehicle for introducing deprivation of liberty safeguards into the Mental Capacity Act 2005. This briefing sheet sets out information about the deprivation of liberty safeguards.

The amendments to the Mental Capacity Act 2005 both strengthen the protection of a very vulnerable group of people, and tackle human rights incompatibilities, by introducing deprivation of liberty safeguards for people who lack capacity to decide about their care or treatment, and who are deprived of their liberty to protect them from harm, but who are not covered by the Mental Health Act 1983 safeguards.

There is a link to the deprivation of liberty safeguards Code of Practice on this webpage. There is also a link to the regulations made under powers contained in the deprivation of liberty safeguards primary legislation. The regulations webpage includes information about the training of deprivation of liberty safeguards mental health assessors and best interests assessors.

The new procedure cannot be used to detain people in hospital for treatment of mental disorder in situations where the Mental Health Act 1983 could be used instead if they are thought to object to being in hospital or to Briefing sheet - Deprivation of Liberty ...