Deprivation of Libertysafeguards:what you should know

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Before you startSome ideas in this booklet are hard to understand. You mightwant to have some support to read it.

Important noticeThis booklet is not a Code of Practice under the Mental CapacityAct 2005.

What is in this booklet

Page Deprivation of Liberty safeguards –

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what you should know 1

Why should I know about this? 2

How do you know if someone’s liberty isbeing taken away? 5

When is it ok to deprive someone of their liberty? 7

When can a hospital or care home deprivesomeone of their liberty? 8

Who can give permission? 9

When will authorisation be given? 10

Adam’s Story - What a hospital must do beforethinking about taking someone’s liberty away 13

Mrs Kumar’s Story - What happens when a carehome asks permission to take someone’s libertyaway 21

Richard’s Story - When a care home thinks it needsurgent authorisation 43

Mrs Baker’s Story - What to do if you think someonehas had their liberty taken away against the rules 53

Thank you 61

Credits 62

1

Deprivation of Libertysafeguards – what youshould know

The Human Rights convention saysthat every person has the right toliberty.

Liberty means being free to do thethings you want to do and livewhere you want to live.

Deprivation of liberty means to takesomeone’s freedom away.

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.Why should I know aboutthis?

A few years ago, someone with alearning disability was taken toa mental health hospital because ofthe way he was behaving.

His carers said he should comehome but the hospital said heshould stay.

He wasn’t made to stay under theMental Health Act but was kept inhospital because staff believed itwas in his best interests.

He could not talk but he was clearlyunhappy, so this went to court.

This case was called theBournewood case.

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Because of this case, new ruleswere made to protect people whomay need to be deprived of theirliberty in hospitals or in care homesin their best interests.

The new rules have been put intothe Mental Capacity Act 2005.

Deprivation of

Liberty

Safeguards

This guide is about those rules.They are called the Deprivation ofLiberty Safeguards.

Safeguards are rules to keep yousafe.

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If your liberty is taken away, thesafeguards make sure that that isthe right thing to do for you.

They also make sure that yourliberty is not taken away for longerthan is needed.

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How do you know ifsomeone’s liberty isbeing taken away?

There are many ways thatsomeone’s liberty can be takenaway in a hospital or care home.

Some of the things we look out for:

Are staff making all the decisions forsomeone?

Is someone being made to staysomewhere and not allowed toleave?

? Are carers not being allowed to takesomeone home?

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Is someone not allowed to seefriends or family when they want?

But every person’s case is different.

Later in this guide, we will look atwhat you can do if you thinksomeone’s liberty is being takenaway against the rules.

In the next section, we will look atwhen it is ok to deprive someone oftheir liberty.

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.When is it ok to deprivesomeone of their liberty?

The law says that it is only ok for 3reasons.

1. It is in someone’s bestinterests.

This means depriving you of yourliberty is the best thing to do for you.

2. To stop you getting hurt.

3. It is the best thing to do to stop things from getting bad.

û

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.When can a hospital orcare home deprivesomeone of their liberty?

This is so serious that the law saysthat every effort must be made notto do it.

This means that they should onlytake someone’s liberty away if is it isthe only way they can help them.

The law also says that because thatperson cannot make their owndecisions and cannot give theirpermission, they have to askpermission from someone else.

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Who can givepermission?.

Only Primary Care Trusts or PCTs,local councils and local healthboards can give permission.

In Wales, Welsh ministers can alsogive permission.

This permission is calledauthorisation.

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.When will authorisationbe given?

First, the hospital or care homemust make sure that the personlacks capacity and cannot give theirpermission.

They must also make sure thatperson has a mental disorder.Mental disorders include a learningdisability.

It does not include mental healthproblems because of alcohol ordrugs.

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Health and social care servicesmust do everything they can beforedeciding that this is the best thing todo.

Deprivation of liberty is the very lastthing they should think about doing.

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.Adam’s StoryWhat a hospital must do before thinking abouttaking someone’s liberty away

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.My name is Adam. I am 35 yearsold. I have a learning disability and Ilive with my parents.

Adam is generally calm and easy toget on with.

.When his parents went away onholiday, Adam got to be home onhis own.

.A paid carer came in to help outwhile they were away.

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While she was there, Adam fell.

The carer was worried that he mighthave broken his arm so she tookhim to A&E.

They decided to X-ray Adam's arm.

But because he was in a strangeplace and was in a lot of pain,Adam got very upset.

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Staff had to keep him still while theydid the X-ray.

Luckily his carer was in the roomand took him outside to calm down.

While Adam was outside, the doctorin charge of A&E thought about howto treat Adam’s injury.

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If Adam becomes upset againwhen he comes back, I mighthave to make him stay in hospitalto treat him.

Adam has a learning disabilitywhich the law says is a mentaldisorder.

But can Adam give hispermission to stay in hospital?

The doctor thought he should findout more about Adam before hetook the next step - asking the PCTfor permission to make Adam stayin hospital.

He gets the number for Adam’sparents from his carer and ringsthem up.

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? They tell him that Adam cannot givepermission because he would notunderstand what the hospital wantsto do.

So Adam has a mental disorder andhe cannot give permission.

But they also tell him that:

He gets upset when there are lots ofpeople around. But all he needs is alittle peace and quiet and his carerwith him, and he will calm rightdown.

The doctor is still not sure, but hemust try what they say beforedeciding to take Adam’s liberty away.

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The law says that staff must do asmuch as they can not to takesomeone’s liberty away.

The doctor gives Adam somemedicine to stop the pain and seesthat Adam does not need to stay inhospital at all.

The doctor decides that it is inAdam’s best interests to go homewith his carer.

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Mrs Kumar’s StoryWhat happens when a care home askspermission to take someone’s liberty away

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My name is Mrs Kumar. I am 84years old and I live in Sunnydalecare home.

Mrs Kumar has dementia. This is amental disorder.

This means she sometimes forgetswhere she is and what she is doing.

Lately, her dementia has got worse.

It has become bad enough that stafffeel that they will need to watchover her nearly all the time or shemight hurt herself.

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If she wants to go out, a staffmember will have to go with her tomake sure she’s ok. Like crossingthe road safely.

By doing this, they would bestopping Mrs Kumar from havingany freedom.

They would be taking away herliberty.

They need Mrs Kumar’s permissionbefore they can do this.

?Staff try to talk to Mrs Kumar aboutwhat they are doing but she doesnot understand what they areasking her about.

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The staff decide to ask forauthorisation from the local council.

Before the council can giveauthorisation, it must do 6 differentchecks to make sure that this is theright thing to do.

All 6 checks have to agree forauthorisation to be given.

21 Days Once the council agrees to do thechecks, they must be done within21 days.

This is so that Mrs Kumar can getthe help she needs as soon aspossible.

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.Who will do the checks?

There must be at least 2 differentpeople doing the checks.

They have to know what they aredoing and have the right skills.

They need to be able to talk withMrs Kumar.

û They cannot be from Mrs Kumar’sfamily.

They cannot be paid by the carehome or have anything to do withthe care home.û

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The person who does the bestinterests check must beindependent.

ûThey cannot be someone who iscaring or supporting Mrs Kumar.

They must be covered in caseanything goes wrong. This is calledinsurance and indemnity.

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The 6 checks

2 of the checks are to see if MrsKumar has a mental disorder andwhether it is in her best interests.

These checks must be done by 2different people.

Dr Chandra will do the mentalhealth check.

Miss Sim will do the bestinterests check.

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18+

Check 1:Is Mrs Kumar old enough?

This is really just to make sure thatMrs Kumar is not under 18 yearsold.

Yes, Mrs Kumar is old enough.

Check 2:Are there earlier decisions thatcould stop the authorisation?

This could be another decisionmade by a Lasting Power ofAttorney, a Deputy from the Court ofProtection, or an AdvancedDecision.

There is more information aboutthese in our booklet called theMental Capacity Act.

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Check 3:Can Mrs Kumar make her owndecision?

The answer must be no forauthorisation to be given.

Miss Sim knows a lot about MrsKumar’s illness. She knows that justbecause she is ill does not meanshe does not understand.

After talking to her, Miss Simdecides that Mrs Kumar cannotmake this decision about her care.

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Check 4:Does Mrs Kumar have a mentaldisorder?

The law says that only a doctor whois expert in mental health can dothis check.

Dr Chandra is and decides that MrsKumar does have a mental disorder.

? Check 5:Which law needs to be used?

Miss Sim and Dr Chandra bothagree that Mrs Kumar’s case comesunder the Mental Capacity Act.

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Check 6:Is it in Mrs Kumar’s bestinterests?

This check actually does 3 things.

1. It looks at what the care homeplans to do.

Does it take away Mrs Kumar’sliberty?

2. If the answer is yes, Miss Simmust look to see whether this is theright thing to do for Mrs Kumar.

To do this, she will talk to MrsKumar’s carers as well as herfriends and family.

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She talks to Mina, Mrs Kumar’sgranddaughter who is very close toMrs Kumar.

3. Miss Sim will look at all thechoices the care home has made tohelp Mrs Kumar.

She must make sure that takingaway Mrs Kumar’s liberty is the bestthing the care home could do tohelp her.

All the checks agree that what thecare home wants to do is best forMrs Kumar.

Authorisation is given.

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The local council must now get arepresentative for Mrs Kumar.

A representative speaks up forsomeone who has had their libertytaken away.

The law says that the representativemust:

● 18+ Be over 18 years old.

●

Be able to keep in touch with Mrs Kumar.

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● Be well enough to do the job.

●

Agree to do the job for MrsKumar.

● û This person cannot work for the care home or the council.

●

Mrs Kumar can choose her own representative if she wants to and is able to.

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If she can’t or does not want to,the local council will choosesomeone for her.

Mrs Kumar says she wants hergranddaughter, Mina, to be herrepresentative.

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What does arepresentative do?

This is a very important job. Minawill be making decisions for MrsKumar when she cannot make themherself.

If Mrs Kumar wants to stop theauthorisation, Mina can help her askthe Court of Protection for help.

The care home must make sure thatMina understands what is beingdone for her grandmother.

They must also tell Mina any plansthey have to change what ishappening to Mrs Kumar.

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Mina can also ask for a review ofMrs Kumar’s case at any time.

The council and care home will alsomake sure that Mina is doing herjob properly.

They can get someone else to dothe job if they think that Mina:

·

is not keeping in touch with MrsKumar enough

·

is not acting in Mrs Kumar’s bestinterests.

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Review

This part of the story is about whathappened after Mrs Kumar gotbetter.

The medicine has made a differenceand she can make more decisions.

Mrs Kumar thinks that the staff donot need to watch over her as muchanymore.

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3 MonthsThe authorisation has 3 months leftand staff think they should keepwatch at least until then.

Mrs Kumar is helped by Mina to askfor a review from the council.

She has written a clear letter. Itshows that she understands what ishappening.

The council asks Miss Sim to do areview.

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What happens at areview?

Miss Sim will look to see whatchecks need to be done again.

She decides that the mentalcapacity check needs to be doneagain.

If the check shows that Mrs Kumarcan make her own decisions, theauthorisation will stop straight away.

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The council must write to the home,Mrs Kumar and Mina to tell themauthorisation has stopped.

Dr Chandra talks to Mrs Kumar andMina.

He decides that Mrs Kumar doesunderstand what is happening andcan make her own decisions.

The authorisation for deprivation ofliberty for Mrs Kumar is stopped.

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Richard’s StoryWhen a care home thinks it needsurgent authorisation

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Richard’s story

Richard is in a care home becausehis brain injury had become worse.

He has gotten better, but notenough to go home and carry onliving on his own.

Richard keeps forgetting what he isdoing.

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He takes his clothes off a lot andwanders around the home naked.

The care home has made a careplan with Richard to give him asmuch freedom as they can.

But he thinks they want to lock himup and keeps trying to run away.

This means the care home has toput even more controls on Richardto keep him safe.

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The care home manager is worriedthat this means they are deprivingRichard of his liberty.

The care home manager decides toapply for authorisation.

But an authorisation could take amonth before it is given and Richardtries to run away every day.

He needs to act now.

The care home manager has lookedat all the things he can do to keepRichard safe and decides that thosecontrols are the best he can do forRichard.

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The law says he can give himselfurgent authorisation but he mustapply to the council for standardauthorisation at the same time.

What is an urgentauthorisation?

21 Days

There are 2 types of authorisations.

The first is a standard authorisationwhich we saw in Mrs Kumar’s story.

The second type is called an urgentauthorisation.

It can only be given whena hospital or care home believesthat they must act now to keepsomeone safe.

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Urgent

7 Days

The 6 checks must be done in 7days.

But they must apply for a standardauthorisation at the same time.

The care home manager tells thecouncil that he is giving himselfurgent authorisation.

The council sends a Best InterestsAssessor to see him.

An assessor is somebody who doesa check.

Because Richard does not haveclose friends or family to help him,the council asks an IndependentMental Capacity Advocate or IMCAto support Richard.

Charlie is Richard’s IMCA.

Charlie’s job is to make sureRichard’s rights are kept safe.

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Charlie talks to Richard and findsout as much as he can about him.

Charlie also talks to all the peopledoing Richard’s checks.

Charlie must also look at whetherthe care home was right to do anurgent authorisation.

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If he disagrees, he can go to theCourt of Protection for Richard andask for it to be stopped.

The Court of Protection will decidewhat is best for Richard.

After talking to everyone, Charlie isnot sure that the care home’s plansare good for Richard.

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Richard says that he does not like itthere.

Charlie takes him to another carehome called Sunshine to see if helikes it better there.

Richard seems to like it better.

After talking with Charlie andeveryone involved in Richard’s care,Miss Sim thinks there are otherways to keep Richard safe.

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She tells the council that theyshould not give authorisation to thecare home manager.

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Mrs Baker’s Story.What to do if you think someone has hadtheir liberty taken away against the rules

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Mrs Baker’s Story

Miss Chan and Mrs Baker havebeen friends for a long time.

Miss Chan visits every month. Sheusually spends the whole day withMrs Baker.

One day, a care worker at the hometells Miss Chan that she can onlystay for an hour.

Miss Chan is surprised and asksMrs Baker what is going on.

I had a bit of a funny turn theother day and I shouted at someof the staff. I think I broke a cupas well. I’m alright now but theythink I’m going to go off on oneagain.

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After her visit, Miss Chan is worriedthat her friend is being deprived ofher liberty.

She decides to visit again the nextweek.

This time the care home says thatMrs Baker has been given somemedicine to calm her down to stopher from getting hurt.

She had been shouting andthrowing things around.

Miss Chan asks if Mrs Baker hashad a mental health check.

The staff say that they have asked adoctor to see Mrs Baker soon.

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Miss Chan is really worried now.

She writes a letter to the managerof the care home about her worriesfor Mrs Baker.

Miss Chan knows that the carehome manager should answerquickly.

She expects to get a call from thecare home manager to talk aboutwhat is happening with Mrs Baker.

But 2 days pass and she does nothear anything.

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She goes back to see Mrs Baker.Again, she is told that she can onlysee her for an hour.

She asks Mrs Baker if she’s ok withthis. Not really. I don’t know whatthey think I’m going to do.

Mrs Baker is clearly unhappy.

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Miss Chan decides to write to thelocal council.

When the council gets Miss Chan’sletter, they ask Miss Sim to checkwhether Mrs Baker is beingdeprived of her liberty.

The council writes to Miss Chan,Mrs Baker and the manager of thecare home to say that this ishappening.

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If Miss Sim finds that Mrs Baker hasbeen deprived of her liberty, thecare home must stop at once asthey do not have permission.

They will need to ask forauthorisation and all 6 checks willhave to be done.

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What if authorisation hasbeen given but MissChan does not agreewith it?

Miss Chan can ask an IMCA to helpMrs Baker go to the Court ofProtection.

The Court of Protection can stop theauthorisation.

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Thank you

.We would like to thank the followingpeople for so kindly giving us theirtime and support:

●

Staff and clients at NewmarketDay Centre, “The Time of YourLife”

● Staff and clients at NewmarketCommunity Resource Unit

The X-Ray Department ofNewmarket Hospital

● Eve and Peter Rank

● Richard West and Tracey Wood

● The Making It Easier Group:Colin, Emma and Katrina

● All the other models whoappeared in this booklet

● All our family and friends

●

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Credits

This booklet was made by InspiredServices for the Department ofHealth.

Please do not copy any part of itwithout permission from theDepartment of Health.

The pictures were by RichardCorbett, iStockphoto and theInspired Team.