Deprivation of Liberty Safeguards

From WikiMentalHealth

The Deprivation of Liberty Safeguards are the attempt by the Government to bridge the "Bournewood gap", so that all those lacking capacity deprived of their liberty within the meaning of Article 5(1)(e) have safeguards consistent with the requirements of Article 5(1) and 5(4).

Related cases

See the following categories:

Category:Deprivation of liberty and Category:Capacity

Some important cases are:

HL v UK 45508/99 (2004) ECHR 471 — 'Informal' compliant incapacitated patient was deprived of his liberty, with lack of procedural safeguards or access to court, in breach of Art 5(1) and (4).

JE v DE and Surrey County Council (2006) EWHC 3459 (Fam) — In determining whether a person is deprived of his liberty, the crucial question is whether he is is “free to leave” the institution, not only for approved outings but also permanently to go or live where or with whom he chooses; there can be deprivation of liberty in the absence of a lock or physical barrier, and it can equally be caused by the misuse or misrepresentation of even non-existent authority

Salford City Council v GJ, re GJ NJ and BJ (Incapacitated Adults) (2008) EWHC 1097 (Fam) — The appropriate safeguards to be put in place when the court authorises the placement of an incapacitated adult in circumstances engaging Article 5 of the Convention.

Related legislation

Article 5

Mental Capacity Act 2005

Health Care and Associated Professions (Miscellaneous Amendments and Practitioner Psychologists) Order 2009 (Commencement No 1 and Transitional Provisions) Order of Council 2009 — Yes, that is the real name. Among other over-complicated things, transitional arrangements relating to psychologist AMHPs and BIAs come into force on 1/7/09. Until 30/6/12, they can either be chartered psychologists (registered by the BPS) or psychologists registered by the HPC. It is expected that before the end of the transitional period the legislation will be amended to refer only to those registered by the HPC.

Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person's Representative) (Amendment) Regulations 2008 — In force 3/11/08.

Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person's Representative) Regulations 2008 — In force 3/11/08.

Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) (Wales) Regulations 2009 — In force 1/4/09 (subject to annulment).

Mental Capacity (Deprivation of Liberty: Assessments, Standard Authorisations and Disputes about Residence) (Wales) Regulations 2009 — In force 1/4/09 (subject to approval).

Mental Capacity (Deprivation of Liberty: Monitoring and Reporting; and Assessments - Amendment) Regulations 2009 — In force 1/4/09, subject to approval by resolution of each House of Parliament. Relates to (1) the role of the Care Quality Commission in monitoring schedule A1 and (2) two amendments relating to (a) insurance/indemnity of assessors, and (b) recovery of expenditure between local authorities.

Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008 — In force 3/11/08.

Mental Health Act 2007 (Commencement No. 10 and Transitional Provisions) Order 2009 — In force 1/4/09. This order brings into force the provisions in relation to IMHAs for England (they are already in force in Wales). It also commences the deprivation of liberty safeguards, and introduces transitional provisions: provided the applications are received on or before 30/4/09, 42 days (instead of 21) are allowed for completing assessments for a standard authorisation, and urgent authorisations last for 21 days (instead of 7); urgent authorisations given on or before 30/4/09 cannot be extended.

NHS Bodies and Local Authorities Partnership Arrangements (Amendment) Regulations 2009 — These Regulations amend the NHS Bodies and Local Authorities Partnership Arrangements Regulations 2000 to include Schedule A1 to the Mental Capacity Act 2005 (the Mental Capacity Act Deprivation of Liberty Safeguards) as a function of NHS Bodies. This will enable primary care trusts to enter into formal partnership arrangements with local authorities. In force 1/4/09, immediately after the coming into force of the Mental Health Act 1983 (Independent Mental Health Advocates) (England) Regulations 2008

Details of the introduction of DOLS by the MHA 2007:

Bournewood gap bridged by Deprivation of Liberty Safeguards inserted into MCA 2005 (April 2009)

External links

DH DOLS web page - This is the main port of call for up-to-date Government information on the safeguards.

The following are the main MCA DOLS information booklets:

Deprivation of Liberty Safeguards: A guide for hospitals and care homes - 12/2/09

Deprivation of Liberty Safeguards: A guide for primary care trusts and local authorities - 12/2/09

Deprivation of Liberty Safeguards: A guide for relevant person's representatives

Making decisions: The Independent Mental Capacity Advocate (IMCA) service

Mental Capacity Act 2005 Deprivation of Liberty Safeguards: A guide for family, friends and unpaid carers - 6/3/09

MCA DOLS newsletters:

Issue 3 (April 2009)

MCA DOLS News - Issue 2 - published 26/11/08

Other documents from the DH website:

Lists of supervisory bodies' contact details: (1) PCTs; (2) local authorities. Updated very regularly - see main DH DOLS page (link above) for latest version

Guidance on the completion of the Deprivation of Liberty Safeguards data collation sheet - 2/4/09

Arrangements under paragraph 183(4) of Schedule A1 to the Mental Capacity Act 2005 between the Secretary of State and the Welsh Ministers - 1/4/09 - "[These arrangements] set out that where questions about a person's ordinary residence arise in relation to which local authority should act as the supervisory body, the Secretary of State will determine cross-border ordinary residence disputes between England and Wales where the person to whom the dispute relates is accommodated in a care home in England. The Welsh Ministers will determine cross-border disputes where the person to whom the dispute relates is accommodated in a care home in Wales."

"DOLS and you" document - 31/3/09

Dear Colleague letter: The Mental Capacity Act 2005 Deprivation of Liberty Safeguards (MCA DOLS) - 5/3/09 - "This letter from David Nicholson outlines roles and responsibilities for health and social care providers under the Mental Capacity Act 2005 Deprivation of Liberty Safeguards which 'go live' on 1 April."