We have had deprivation of liberty safeguards in for a number of years but these have recently been overhauled and are due for implementation in April 2022. The new liberty protection safeguards will protect individuals over the age of sixteen who need to be deprived of their liberty in order to enable their care or treatment to proceed. These individuals must lack capacity in line with the Mental Capacity Act to consent to care or treatment. For example those living with conditions such as dementia, autism and learning disabilities could need the protection of the liberty safeguards. The safeguards may be required to keep someone in hospital who is receiving treatment or keep a person in a care home who continually wants to leave.
Under the new scheme there will be three assessments which form the basis of the authorisation. These are a capacity assessment, a medical assessment and a necessary and proportionate assessment. The first is what it says. It is an assessment to see whether the individual has capacity to make decisions about their care and treatment. The medical assessment is necessary to confirm whether the personal has a "mental disorder" and the final assessment is to make sure that the arrangements do not cause harm to the individual and that arrangements are proportionate in relation to the likelihood and seriousness of the potential harm. Once these assessments have taken place a decision will be taken as to whether it is necessary to deprive the individual of their liberty or not, and whether any deprivation needs to be legally authorised. If authorised this is not forever and there are strict rules in relation to when a deprivation has to be reviewed.
The responsible bodies (the local authorities and NHS) will organise the assessments and ensure that there is sufficient evidence to justify a deprivation. Assessments cannot be completed without consultation of those caring for the individual who lacks capacity and those involved in their welfare. There is the opportunity for a family member to be appointed as an appropriate person to represent the person lacking capacity throughout the process so that there is a voice for the individual needing support. Where it is reasonable to believe that a person lacking capacity would not wish to live or receive care in a hospital or care home an Approved Mental Capacity Professional will also need to be involved in the assessment process to provide an additional level of protection for the incapacitated individual.
Deprivation of liberty is not the same as being detained under the Mental Health Act which is something completely different.
If you, as a family member, are being told that a deprivation of liberty safeguard authorisation has to be put in place this is not something to worry about. This is to help keep your family member safe. There may be circumstances however when you do not agree with what is happening. In these circumstances you should take legal advice on the way in which you can object to a deprivation of liberty. If you do need some help with this give us a call for further advice.