Liberty means being free to do the things you want to do and live where you want to live. There are many ways that someone’s liberty can be taken away in a hospital or care home. The Deprivation of Liberty Safeguards are there to protect people from having their freedom restricted in unnecssary ways.
The Deprivation of Liberty Safeguards law is now part of the Mental Capacity Act 2005. They will become duty from April 2009. They cover people in hospital and care homes registered under the Care Standards Act 2000. The safeguards are to protect service users by providing them with representatives, regular reviews and rights of appeal.
The Code of Practice distinguishes between:
Restriction of liberty – lawful if it is in a person’s best interests.
Deprivation of liberty – unlawful breach of human rights without legal statute
A point comes where the measures taken to protect someone from harm become a deprivation of a liberty. By law, we have to show that this is:
- In the person best interests
- The measures are proportionate to the risk
- The person deprived of their liberty has representative and rights of appeal
A Deprivation of Liberty may be:
- Imposing controls and limitations within the environment of the hospital/care home
- It may be refusing discharge at the request of a carer and/or the person who lacks capacity
Deprivation of Liberty could take place when a person is not allowed to make choices about:
- Where they can be within the care home
- What they can do
- Who they can associate with
- When and what they can eat
- Access to relatives
It depends upon degree and intensity of measures taken to ensure a person’s safety
Deprivation – is to take away or not provide something
Liberty - being free to make your own decisions
Code of Practice - guidance and information that explains how the Mental Capacity Act works. It tells people how to make sure they are following the new law.
Restriction of liberty – lawful if it is in a person’s best interests
Deprivation of liberty – unlawful breach of human rights without legal statute
Best interests - this means thinking about what is best for the person and not about what anyone else wants