Section Three The second year – activities and key issues by type of detention Deprivation of liberty safeguards Deprivation of liberty safeguards were introduced in recent years to protect those who are not detained under mental health law but who lack capacity to consent to care or treatment that is deemed by others to be in their best interest. Such care or treatment may involve depriving someone of their liberty in either a hospital or care home. The safeguards seek to ensure that any decision to deprive someone of their liberty is made following defined processes and in consultation with specific authorities. Applying only in England and Wales, deprivation of liberty safeguards are monitored by three members of the NPM – CQC in England, and HIW and CSSIW in Wales. The deprivation of liberty safeguards were introduced following the decision of the European Court of Human Rights in HL v United Kingdom.34 This case concerned an autistic man with a learning disability who lacked the capacity to decide whether he should be admitted to hospital for specific treatment. He was admitted informally but this decision was challenged by his carers. The Court found that his admission amounted to an unlawful deprivation of liberty under Article 5 of the European Convention on Human Rights. England CQC’s main approach to monitoring the use of deprivation of liberty safeguards is through its process of monitoring compliance with its essential standards of safety and quality by regulated health and adult social care providers, including care homes. In some instances, CQC’s MHA commissioners also report on issues relating to the use of the deprivation of liberty safeguards which are identified in the course of their visits to detained patients. CQC reports annually on its monitoring of deprivation of liberty safeguards. The first such report was published in March 2011.35 This report noted that there was clear variation in organisations’ understanding and practice of the safeguards and in staff training. CQC found too many examples of managers and staff in hospitals and care homes who were unaware of the safeguards or who had received no training on them. It also found too many examples of staff in hospitals and care homes using restraint or restricting people’s movement where they failed to consider that these practices could deprive a person of their liberty. Furthermore, CQC’s inspections of hospitals and care homes highlighted some confusion over the wider Mental Capacity Act. Care providers may not know when they are exceeding the powers that this Act gives them and therefore may not be aware when they need to apply for an authorisation to deprive a person of their liberty. Indeed, some inspections found that certain care homes were failing to carry out any assessment of mental capacity on any service users. However, CQC also found some hospitals and care homes demonstrating good practice in using the safeguards to protect people’s rights. One issue raised by CQC in its annual report on the use of the deprivation of liberty safeguards was the perception that the safeguards are overly bureaucratic. It therefore encouraged the Department of Health to consider whether it could reduce the amount of paperwork needed to use the safeguards. 34 Application No. 45508/99 (October 2004). 35 CQC, The operation of the deprivation of liberty safeguards in England, 2009/10 (March 2011). 41