Monitoring the use of the Mental
Capacity Act Deprivation of
Liberty Safeguards in 2011/12
The Safeguards came into effect in 2009. They are part of a legal
framework set out in the Mental Capacity Act 2005 (MCA). The MCA
is a very important mechanism for protecting the rights of people who
do not have the ability (mental capacity) to make certain decisions for
themselves. It provides guidance to people who need to make decisions
on behalf of someone else. It sets out the principles that should guide
such decisions, including the need to act in the person’s best interests
and to achieve the desired outcome in ways that put the least restriction
on the person’s rights and freedom of action.
The Mental Capacity Act is primarily concerned with people who have
mental disabilities. The Safeguards are particularly relevant for those with
severe learning disabilities, dementia, or people who have brain injuries.
The Mental Health Act focuses on people who have mental illnesses. In
practice, the same person may be covered by both Acts, depending on
individual circumstances.
The reason the Safeguards were introduced was to address the problem
that arises if a person does not have the mental capacity to make an
informed decision about care or treatment. This problem was brought
to light in the late 1990s by the case of Mr L and became known as
‘the Bournewood Gap’. 1The reason the Safeguards were introduced
The case of Mr L
Mr L was profoundly mentally disabled and
unable to consent to medical treatment.
He was admitted to hospital by a psychiatrist
without the use of the Mental Health Act, as he
was thought to be fully in agreement with this
course of action.
His carers challenged this admission because of the
restrictions on his liberty that were applied to him
once in hospital and because Mr L did not have the
capacity to disagree with the restrictions. The reality
was that he was not free to leave.
The case went to the European Court of Human
Rights, which agreed that Mr L had been deprived
of his liberty within the meaning of Article 5 of the
European Convention on Human Rights.2
The ‘gap’ that was identified was in the lack of
safeguards for the admission and detention of people
who appeared to agree but in fact lacked the capacity
to consent or disagree.
There were no stated grounds for such action, no
statement of purpose, no limits of time or treatment
and no requirement for continuing clinical assessment.
It was this gap that the Deprivation of Liberty
Safeguards were designed to address.
1 HL v United Kingdom (2005) 40 EHRR 761
2 Article 5(1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a
procedure prescribed by law:… (e) the lawful detention… of persons of unsound mind.
4 Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards in 2011/12
There have been high profile failures in health and social care, which
include deprivation of liberty. The Winterbourne View Serious Case Review
highlighted the unlawful nature of restrictions imposed on people with
learning disabilities in that service. It found that individual patient records
gave rise to concerns because they did not accurately reflect the person’s
legal status under the Mental Health Act (MHA); nor did they give any
indication as to whether the Safeguards had been considered.3
The decisions of the courts continue to develop mental capacity law, the
meaning of ‘deprivation of liberty’ and practice. The health and social care
system is currently changing. NHS primary care trusts will be abolished
in April 2013, when local authorities will assume responsibilities as
supervisory bodies for hospitals as well as for care homes.
How the Safeguards work in practice
The Safeguards must be considered in care homes and hospitals when the
restrictions on a person’s freedom, imposed in their best interests, may
mean that they are deprived of their liberty. In addition to protecting the
person’s rights, the Safeguards can provide reassurance to staff that they
are acting appropriately within the framework of the MCA, in a way that is
proportionate to the risk of harm to the person. The following
two examples illustrate this point.
Case study
Mrs A, care home resident
Mrs A has severe dementia and lives in a care
home. She makes persistent and purposeful
attempts to leave the home.
Staff are concerned for her safety if she was to leave,
but also concerned not to restrict her rights and
freedom any more than the minimum necessary for
her safety.
The care home (managing authority) decides to ask
the local social services authority (supervisory body)
to consider whether Mrs A should be ‘detained’
in the care home under the Deprivation of Liberty
Safeguards.
The local authority carries out a series of independent
assessments (looking at the person’s best interests
and medical needs and including the person’s family)
and notes that Mrs A’s medication is not being
administered correctly – which could be exacerbating
her anxiety.
The assessor recommends that the GP should review
the medication and look into an alternative medication
plan. The local authority agrees to authorise
deprivation of Mrs A’s liberty for a short period to
allow time for these aspects of the care plan to
be changed.
