People who lack capacity in hospitals and care homes will now be protected by a new law known as the 'Mental Capacity Act Deprivation of Liberty Safeguards'.
The new law introduces new safeguards, so that, if a care home or hospital needs to deprive someone of their liberty for their own safety or wellbeing, they must now apply for permission. The law only applies to people in care home and hospital settings who are unable to make decisions on their own care or treatment and who need to be deprived of their liberty in their own best interests to protect them from harm.
The new safeguards only make it lawful for a person to be deprived of their liberty, based on a rigorous, standardized assessment and authorization process. It gives people the right to challenge any decision to deprive them of liberty, a representative to act for them and protect their interests and the right to have their status reviewed and monitored on a regular basis.
Care Services Minister Phil Hope said:
"Vulnerable people will now have rights where previously they had none. Before this law came in, care homes or hospitals were able to lock someone up or sedate them without their consent, without that person having any kind of right to appeal or protest.
"This will improve care. The safeguards will flush out poor care and prevent people from being deprived of liberty in a care home or hospital unless it is absolutely necessary for their own safety. It is absolutely right to provide an independent legal framework so that vulnerable people are protected from potential abuse.
"This law will only be used as a last resort where it is necessary to keep a person safe and all other options have been exhausted. Protective care must be the exception and not the rule."
These safeguards mean that, if a hospital or care home wants to deprive someone of their liberty to keep them safe from harm, they must apply to the local health trust or council for permission. This triggers a series of six assessments carried out by trained assessors. These are:
The deprivation of liberty is in the person's best interests to protect them from harm and is a reasonable response to the likelihood of the person suffering harm and the likely seriousness of that harm.
The person must be over 18.
The person must have a mental disorder.
The person must not be subject to a requirement of the Mental Health Act. The person must lack the capacity to consent to their own care or treatment.
The authorization must not conflict with an advance decision made by the person; or valid decision made on the person's behalf by a donee of a lasting power of attorney or a deputy appointed for the person by the court.
Only if all these criteria are met will an authorization be granted. At any stage, the person or their representative will be able to appeal against their deprivation of liberty to the Court of Protection. In an emergency, the hospital or care home can issue an urgent authorization, for seven days, which speeds up the normal process of authorization.
It is expected that there may be around 21,000 applications in the first year with around 25 per cent being authorized. So twenty one thousand people are expected to benefit from the new safeguards - both those whose applications are authorized and those where there will be no authorization. The overall benefit is more safeguards for all with enhanced scrutiny of the care people receive in care homes and hospitals.
The legislation was welcomed by the National Autistic Society, the British Institute of Learning Disabilities (BILD) and Action on Elder Abuse.
Mark Lever, National Autistic Society (NAS) Chief Executive said:
"Since a man with autism was deprived of his liberty against his will in 1997, we have been campaigning, along with his carers, to stop this kind of injustice from ever happening again. Autism affects over half a million people in the UK and many are prevented from enjoying the same rights and freedoms as the rest of society due to a lack of awareness and understanding. These new safeguards are a much needed step forward in protecting people with autism from discrimination and ensuring those affected by this complex disability have control over their own lives."
Keith Smith, Chief Executive of the British Institute of Learning Disabilities said:
"The Deprivation of Liberty Safeguards are the way to give people who lack capacity the special protection they need. The British Institute of Learning Disabilities have been working with the Department of Health on this project and welcome the launch of the Safeguards as part of valuing and protecting the rights of people with learning disabilities"
Gary Fitzgerald, Chief Executive of Action on Elder Abuse said:
"Action on Elder Abuse warmly welcomes the introduction of the new safeguards. We believe that they will provide an essential protection for many of the most vulnerable members of our society. We have worked closely with a number of stakeholders in the run up to this launch and look forward to continuing this work as the impact of the safeguards becomes clearer"
"We hope that the new safeguards will herald a fresh debate about the care we offer to adults with so called challenging behavior. The new safeguards and the principles of the Mental Capacity Act should provide the basis by which services are commissioned, purchased and provided."
Reference: The Mental Capacity Act Deprivation of Liberty Safeguards (MCA DOLS) came into force on 1 April 2009.
They amend a breach of the European Convention on Human Rights and provide for the lawful deprivation of liberty of those people who lack capacity to consent to arrangements made for their care or treatment in either hospitals or care homes, but who need to be deprived of liberty in their own best interests, to protect them from harm.
Primary Care Trusts (PCTs) and local authorities (designated as 'supervisory bodies' under the legislation) will have statutory responsibility for operating and overseeing the MCA DOLS whilst hospitals and care homes ('managing authorities') will have responsibility for applying to the relevant PCT or local authority for a Deprivation of Liberty authorization.