1. Who does the Mental Health Act 1983 apply to?

The Mental Health Act 1983 (MHA), which was amended in 2007, provides ways of assessing, treating and caring for people who have a serious mental disorder that puts them or other people at risk. It sets out when:

• people with mental disorders can be detained in hospital for assessment or treatment;
• people who are detained can be given treatment for their mental disorder without their consent (it also sets out the safeguards people must get in this situation); and
• people with mental disorders can be made subject to guardianship or aftercare, under supervision to protect them or other people.

Most of the MHA does not distinguish between people who have the mental capacity to make decisions and those who do not. Many people covered by the MHA have the mental capacity to make decisions for themselves.

Decision makers will need to decide whether to use either the MHA or Mental Capacity Act (MCA) to meet the needs of people with mental health problems who lack capacity to make decisions about their own treatment. Where someone with a mental health disorder is subject to a Community Treatment Order (CTO) or Guardianship under the MHA, and lacks capacity, they may have a Deprivation of Liberty Safeguards in place. Otherwise a person cannot be subject to the two frameworks at the same time.

Click here to view flowchart: Deciding whether the MHA and /or MCA can be used.

2. What are the Limits of the Mental Capacity Act?

The MCA provides legal protection for people who are caring for or treating a person who lacks mental capacity. But the principles of the MCA must be followed (see Principles, Mental Capacity) and action can only be taken if it is in the person’s best interests. This applies to care or treatment for physical and mental conditions, and can apply to treatment for people with mental disorders, however serious those disorders are.

The MCA does have its limits, for example a practitioner who is restraining an adult in their care only has protection if the restraint is:

• necessary to protect the person who lacks capacity from harm; and
• in proportion to the likelihood and seriousness of that harm.

The Deprivation of Liberty Safeguards (DoLS) provides safeguards for people who lack the mental capacity specifically to consent to treatment or care in either a hospital or registered care home that amounts to a deprivation of liberty, and detention under the MHA is not appropriate for them at that time. See also Deprivation of Liberty Safeguards chapter.

The MCA also does not allow for treatment to be given if it goes against a valid and applicable advance decision to refuse treatment (see Advance Care Planning chapter).

None of these restrictions apply to treatment for mental disorder given under the MHA – but other restrictions do.

3. When can a Person be Detained under the MHA?

A person can be detained for assessment under section 2 MHA if both of the following criteria apply:

• the person is suffering from a mental disorder of a nature or degree which warrants their detention in hospital for assessment (or for assessment followed by treatment) for at least a limited period; and
• the person ought to be so detained in the interests of their own health or safety or with a view to the protection of others.

A person can be detained for treatment under section 3 MHA if all the following criteria apply:

• the person is suffering from a mental disorder of a nature or degree which makes it appropriate for them to receive medical treatment in hospital;
• it is necessary for the health or safety of the person or for the protection of other persons that they should receive such treatment and it cannot be provided unless the patient is detained under this section; and
• appropriate medical treatment is available.

Decision makers should consider using the MHA if they are not sure it will be possible, or sufficient, to rely on the MCA. They do not have to ask the Court of Protection to rule that the MCA does not apply before using the MHA.

If a clinician believes that they can safely assess or treat a person under the MCA, they do not need to consider using the MHA. In this situation, it would be difficult to meet the requirements of the MHA anyway. Certain serious treatments under the MCA, such as non-therapeutic sterilisation or withdrawal of artificial hydration or ventilation, must be referred to the Court of Protection for a final decision. Furthermore, a person should not be treated for a mental disorder or on a psychiatric ward under DoLS if they are likely to be treatable under the MHA.

A person cannot be treated under the MHA unless they meet the relevant criteria for being detained.

4. How does the MCA apply to a Patient subject to Guardianship under the MHA?

Guardianship gives someone (usually a local authority social care department) the exclusive right to decide where a person should live – but in doing so they cannot deprive the person of their liberty (see Deprivation of Liberty Safeguards). The guardian can also require the person to attend for treatment, work, training or education at specific times and places, and they can demand that a doctor, approved social worker or another relevant person have access to the person wherever they live. Guardianship can apply whether or not the person has the mental capacity to make decisions about care and treatment. It does not give anyone the right to treat the person without their permission or to consent to treatment on their behalf.

Decision makers must never consider guardianship as a way to avoid applying the MCA.

5. Community Treatment Orders

A Community Treatment Order (CTO) is used where it is necessary for the patient’s health or safety or for the protection of others to continue to receive treatment after their discharge from hospital. It seeks to prevent the ‘revolving door’ scenario and the harm which could arise from relapse.

A key feature of the CTO framework is that it is suitable only where there is no reason to think that the patient will need further treatment as a detained in-patient for the time being, but where the responsible clinician needs to be able to recall the patient to hospital if necessary.

5.1 Deprivation of liberty while on a CTO, leave or subject to guardianship

Patients who are on a CTO or on leave, and who lack capacity to consent to the arrangements required for their care or treatment, may occasionally need to be detained for further care or treatment for their mental disorder in circumstances in which recall to hospital for this purpose is not considered necessary. They might also need to be admitted to a care home or hospital because of physical health problems.

If the person is to be detained in a registered care home, a DoLS authorisation must be obtained. A deprivation of liberty can exist alongside a CTO or leave of absence, as long as there is no conflict with the conditions of the CTO or leave set by the patient’s responsible clinician.

If the person is to be detained in a hospital for further treatment for mental disorder (whether or not they will also receive treatment for physical health problems), they should be recalled so they can be treated under the MHA. The MCA cannot be used to authorise the deprivation of their liberty.

6. How does the Mental Capacity Act affect People covered by the Mental Health Act?

There is no reason to assume a person lacks mental capacity to make their own decisions just because they are subject under the MHA to:

• detention;
• guardianship; or
• after-care under supervision.

People who lack mental capacity to make specific decisions are still protected by the MCA even if they are subject to the MHA (this includes people who are subject to the MHA as a result of court proceedings). But there are four important exceptions:

• if a person is liable to be detained under the MHA, decision makers cannot normally rely on the MCA to give mental health treatment or make decisions about that treatment on someone’s behalf;
• if a person can be given mental health treatment without their consent because they are liable to be detained under the MHA, they can also be given mental health treatment that goes against an advance decision to refuse treatment;
• if a person is subject to guardianship, the guardian has the exclusive right to take certain decisions, including where the person is to live; and
• Independent Mental Capacity Advocates (IMCAs) do not have to be involved in decisions about serious medical treatment or accommodation, if the decisions are made under the MHA (see Independent Mental Capacity Advocacy Service chapter).

7. What are the Implications for People who need Treatment for a Mental Disorder?

Under the MHA, subject to certain conditions, doctors can give treatment for mental disorders to detained patients without their consent – whether or not they have the mental capacity to give that consent.

Where Part 4 of the MHA applies, the MCA cannot be used to give medical treatment for a mental disorder to patients who lack mental capacity to consent. Nor can anyone else, like an attorney or a deputy, use the MCA to give consent for that treatment. This is because Part 4 of the MHA already allows clinicians, if they comply with the relevant rules, to give patients medical treatment for mental disorder even though they lack the capacity to consent. In this context, medical treatment includes nursing and care, habilitation and rehabilitation under medical supervision.

However, clinicians treating people for mental disorder under the MHA cannot simply ignore a person’s mental capacity to consent to treatment. As a matter of good practice (and in some cases in order to comply with the MHA) they will always need to assess and record:

• whether patients have mental capacity to consent to treatment, and
• if so, whether they have consented to or refused that treatment.

8. How does the Mental Health Act affect Advance Decisions to Refuse Treatment?

See also Advance Decisions to Refuse Treatment, Advance Care Planning chapter

The MHA does not affect a person’s advance decision to refuse treatment, unless the person can be treated for mental disorder without their consent. In this situation healthcare staff can treat patients for their mental disorder, even if they have made an advance decision to refuse such treatment.

But even then healthcare staff must consider a valid and applicable advance decision to refuse treatment as they would a decision made by a person with capacity at the time they are asked to consent to treatment. For example, they should consider whether they could use a different type of treatment which the patient has not refused in advance. If healthcare staff do not follow an advance decision, they should record this in the patient’s notes with reasons.

Even if a patient is being treated without their consent under Part 4 of the MHA, an advance decision to refuse other forms of treatment is still valid. Being subject to guardianship or aftercare under supervision does not affect an advance decision in any way.

9. Does the MHA affect the Duties of Attorneys and Deputies?

In general, the MHA does not affect the powers of attorneys and deputies. But there are two exceptions:

• they will not be able to give consent on a patient’s behalf for treatment under Part 4 of the MHA, where the patient is liable to be detained under the Act; and
• they will not be able to take decisions:
  • about where a person subject to guardianship should live, or
  • that conflict with decisions that a guardian has a legal right to make.

Being subject to the MHA does not stop patients creating new Lasting Powers of Attorney (if they have the mental capacity to do so), or does it stop the Court of Protection from appointing a deputy for them.

Attorneys and deputies are able to exercise patients’ rights under the MHA, if they have the relevant authority. In particular, some personal health and welfare attorneys and deputies may be able to apply to the First Tier Tribunal for the patient’s discharge from detention, guardianship or aftercare under supervision.

The MHA also gives various rights to a patient’s nearest relative (see MCA Code of Practice for further information).

Clinicians and others involved in the assessment or treatment of patients under the MHA should try to find out if the person has an attorney or deputy.

10. Does the MHA affect when Independent Mental Capacity Advocates must be instructed?

10.1 Independent Mental Capacity Advocates

See also Independent Mental Capacity Advocacy Service chapter

There is no duty to instruct an IMCA for decisions about serious medical treatment which is being provided under the MHA. Nor is there a duty to do so in respect of a move into accommodation, or a change of accommodation, if the person is required to live there because of an obligation under the MHA.

However, the rules for instructing an IMCA for patients subject to the MHA who may need serious medical treatment not related to their mental disorder are the same as for any other patient.

The duty to instruct an IMCA would also apply if accommodation is being planned as part of the aftercare under section 117 of the MHA following the person’s discharge (see 117 Aftercare chapter).

10.2 Independent Mental Health Advocates

Independent mental health advocacy services provide an additional safeguard for patients who are subject to the MHA. Independent Mental Health Advocates (IMHAs) are specialist advocates who are trained to work within the framework of the Act and enable patients to participate in decision-making, for example by encouraging them to express their views and supporting them to communicate their views. IMHAs should be independent of any person who has been professionally involved in the patient’s medical treatment.

IMHA services do not replace any other advocacy and support services that are available to patients, such as independent mental capacity advocates (IMCAs) or representatives for patients who lack mental capacity, and should work alongside these services.

11. Further Reading

11.1 Relevant chapters

Mental Capacity

Deprivation of Liberty Safeguards

11.2 Relevant information

Mental Capacity Act 2005 Code of Practice (2007)

Mental Health Act 1983: Code of Practice (2015)

1. Introduction: What is Section 117 Aftercare?

The Mental Health Act 1983 Code of Practice (chapter 33) outlines how section 117 of the Act requires Integrated Care Boards (ICBs – formerly known as Clinical Commissioning Groups) and local authorities, working with voluntary agencies, to provide or arrange for the provision of aftercare to patients detained in hospital for treatment under:

• section 3 – detained in hospital for treatment;
• section 37 or 45A – ordered to go to hospital for treatment by a court;
• section 47 or 48 – transferred from prison to hospital under sections of the Act.

This includes patients given leave of absence under section 17 and patients going on community treatment orders (CTOs). It applies to people of all ages, including children and young people.

2. Key Points about Section 117 Aftercare Services

(Click on image to enlarge it)

Aftercare services aim to meet a need arising from or related to the patient’s mental disorder and reduce the risk of a deterioration of their mental condition (and, accordingly, reducing the risk of them needing to be readmitted to hospital for treatment). Their aim is to maintain patients in the community, with as few restrictions as necessary, wherever possible.

ICBs and local authorities should interpret the definition of aftercare services broadly. For example, aftercare can include healthcare, social care and employment services, supported accommodation and services to meet the person’s wider social, cultural and spiritual needs – if these services meet a need that arises directly from or is related to their particular mental disorder, and help to reduce the risk of a deterioration in their mental condition.

Aftercare is a vital component in patients’ overall treatment and care. As well as meeting their immediate needs for health and social care, aftercare aims to support them in regaining or enhancing their skills, or learning new skills, to cope with life outside hospital (Mental Health Act 1983 Code of Practice).

2.1 Community treatment orders

The duty to provide aftercare services continues as long as the patient is in need of such services. In the case of a patient on a CTO, aftercare must be provided for the whole time they are on the CTO, but this does not mean that their need for aftercare will stop as soon as they are no longer on a CTO.

2.2 Deprivation of Liberty Safeguards

See Mental Capacity Deprivation of Liberty Safeguards chapter

The Deprivation of Liberty Safeguards Code of Practice highlights that safeguards cannot apply to people while they are detained in hospital under the Mental Health Act 1983 (MHA). The safeguards can, however, apply to a person who has previously been detained in hospital under the MHA.

Therefore, for those who are assessed as eligible for section 117 aftercare funding, and their needs are met in a care home or hospital (for physical treatment), they may be subject to restrictions that deprive them of their liberty. Deprivation of Liberty Safeguards (DoLS) can be used for any patient who is funded for their accommodation, care, and treatment under section 117.

There are some occasions where DoLS can be used together with the MHA, and these are referred to as ‘interfaces’ between the legislations, in which five test cases are applied to help determine eligibility. See Interface between the Mental Capacity Act 2005 and the Mental Health Act 1983 (amended 2007) chapter.

2.3 Ordinary residence

See Liverpool City Region Ordinary Residence Practice Guidance chapter

A key consideration when establishing a patient’s eligibility for section 117 aftercare funding is ordinary residence. Section 117(3) of the Act states the ICB, or local Health Board, and the local authority are responsible for funding aftercare in the following circumstances:

1. if, immediately before being detained, the person was ordinarily resident in England (for the area in England in which they were ordinarily resident);
2. if, immediately before being detained, the person was ordinarily resident in Wales, for the area in Wales in which they ordinarily resident; or
3. in any other case for the area in which the person concerned is resident or to which he is sent on discharge by the hospital in which they were detained.

2.3.1 Ordinary residence disputes

The issue of ordinary residence can occur frequently as a reason for disagreement when health and social care services are planning safe discharges. Who Pays? NHS England guidance states that the original ICB remains responsible for the health part of a person’s section 117 aftercare funding once they have been discharged into the community.

The guidance also indicates the definition of ordinary residence must be considered alongside its interpretation under the Care Act 2014, where Regulation 3 must be considered. This includes:

Firstly, determining who the ‘lead authority’ is.  The regulations states this is the local authority which:

1. is meeting the needs of the adult or carer to whom the dispute relates at the date on which the dispute starts; or
2. if no local authority is meeting those needs at that date, is required to do so by regulation 2(3);

If it is unclear who the lead authority is, this is decided by considering section 2 of regulation 3:

1. the local authority in whose area the adult needing care is living; or
2. if the adult needing care is not living in the area of any local authority, the local authority in whose area that adult is present, must, until the dispute is resolved, carry out the duties under Part 1 of the Act for the adult or carer, as if the adult needing care was ordinarily resident in its area.

The guidance states:

By virtue of regulation 3(7) of the Care and Support (Disputes between Local Authorities) Regulations 2014/2829 disputes must still be referred to the Secretary of State if the local authorities in dispute cannot resolve the dispute within 4 months of the date on which it arose. On receipt of a referral, DHSC will consider, on a case-by-case basis whether the case raises issues similar to the ‘Worcestershire case’ and, depending on that consideration, how to treat that referral.

2.3.2 Dispute resolution map

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3. Planning Aftercare

The Mental Health Act 1983 Code of Practice states that although the duty to provide aftercare begins when the patient leaves hospital, the planning of aftercare needs to start as soon as the patient is admitted to hospital. ICBs and local authorities should take reasonable steps, in consultation with the care programme approach (CPA) care co-ordinator and other members of the multi-disciplinary team, to identify appropriate aftercare services for patients in good time for their eventual discharge from hospital or prison.

The duty to provide section 117 aftercare services to a person is triggered by the hospital providing them with care and treatment. If the Responsible Clinician (RC) is considering discharge, they should consider whether the patients aftercare needs have been identified and addressed. This would also apply in cases where the RC is granting extended s17 leave.

If the patient is having either a Hospital Managers Hearing or a Mental Health Tribunal, the ICB and local authority must be notified, as they will be expected to provide information as to what aftercare arrangements could be made available.

Aftercare for all patients admitted to hospital for treatment for mental disorder should be planned within the framework of the CPA. The CPA is an overarching system for coordinating the care of people with mental disorders.

3.1 Community Mental Health Framework for Adults and Older Adults

The Community Mental Health Framework for Adults and Older Adults sets out that people with mental health problems will be able to:

• access mental health care where and when they need it, and be able to move through the system easily, so that people who need intensive input receive it in the appropriate place, rather than face being discharged to no support;
• manage their condition or move towards their individual recovery on their own terms, surrounded by their families, carers and social networks, and supported in their local community;
• contribute to and be participants in the communities that support them, to whatever extent is comfortable to them.

Every person who requires support, care and treatment in the community should have a co-produced and personalised care plan that considers all of their needs, as well as their rights, under the Care Act and section 117 of the MHA when required.

3.2 Care planning

The level of planning and coordination of care will vary, depending on how complex the person’s needs are. For people with more complex problems, who may require interventions from a number of different professionals, one person should have responsibility for coordinating care and treatment. This coordination role can be provided by workers from different professional backgrounds.

The care plan will include timescales for review, which should be discussed and agreed with the person and those involved in their care from the start. Digital technologies can be used to manage plans, and to allow users to manage their care or record advance choices.

Part of everyone’s role is to work with their community. Local authorities have developed community strengths-based approaches and the core skills of social workers include identifying and connecting people to their social networks and communities. Community connectors / social prescribing link workers must work closely with the all the community services and the local voluntary, community and social enterprise sector. The key functions of this role are to be familiar with the local resources and assets available in the community, vary the support provided, based on needs, and assess a person’s ability and motivation to engage with certain community activities.

The aftercare plan must reflect the needs of the patient and it is important to consider who needs to be involved, in addition to patients themselves. Taking the patient’s views into account, this may include:

• the patient;
• the nearest relative;
• any carer who will be involved in looking after them outside hospital;
• any attorney or deputy;
• an independent mental health advocate;
• an independent mental capacity advocate;
• any other representative nominated by the patient;
• the GP;
• the responsible clinician;
• a psychologist, community mental health nurse and other members of the community team;
• nurses and other professionals involved;
• an employment expert, if employment is an issue;
• a representative of housing authorities;
• in the case of a transferred prisoner, the probation service;
• a representative of any relevant voluntary, community, faith and social enterprise agency;
• a person to who the local authority is considering making direct payments for the patient.

Care planning requires a thorough assessment of the patient’s needs and wishes. It is likely to involve consideration of:

• the patient’s continuing mental healthcare, whether in the community or on an outpatient basis;
• their psychological needs and, where appropriate, their carers;
• their physical healthcare;
• their daytime activities or employment;
• appropriate accommodation;
• their identified risks and safety issues;
• any specific needs arising from, for example co-existing physical disability, sensory impairment, learning disability or autistic spectrum disorder;
• any specific needs arising from drug, alcohol or substance misuse (if relevant);
• any parenting or caring needs;
• social, cultural or spiritual needs;
• counselling and personal support;
• assistance in welfare rights and managing finances;
• involvement of authorities and agencies in a different area, if the patient is not going to live locally;
• the involvement of other agencies, for example the probation service or voluntary organisations (if relevant);
• for a restricted patient, the conditions which the Secretary of State for Justice or the first-tier Tribunal has – or is likely to – impose on their conditional discharge; and
• contingency plans (should the patient’s mental health deteriorate) and crisis contact details.

Professionals with specialist expertise should also be involved in care planning for people with autistic spectrum disorders or learning disabilities.

It is important that those who are involved can take decisions regarding their own involvement and, as far as possible, that of their organisation. If approval for plans needs to be obtained from more senior levels, it is important that this causes no delay to the implementation of the care plan.

If accommodation is to be offered as part of the aftercare plan to patients who are offenders, the circumstances of any victim of the patient’s offence and their families should be taken into account when deciding where the accommodation should be offered. Where the patient is to live may be one of the conditions imposed by the Secretary of State for Justice or the Tribunal when conditionally discharging a restricted patient (see Mental Health Act 1983 Code of Practice).

4. Funding Section 117 Aftercare

Section 117 aftercare services are free of charge to all relevant persons. The amount awarded by the local authority must be the amount it costs the local authority to meet the person’s needs. In establishing the ‘cost to the local authority’, consideration should be given to local market intelligence and costs of relevant local quality care and support provision to ensure that the personal budget reflects local market conditions and that appropriate care that meets needs can be obtained for the amount specified (see Personal Budgets chapter).

If, at any point, it becomes clear that a person who is be eligible for section 117 aftercare has been paying for services, they can reclaim these payments as long as clear evidence is provided of their detention in hospital or prison.

Direct payments can be made in respect of aftercare to the patient or, where the patient is a child or a person who lacks capacity, to a representative who consents to the making of direct payments in respect of the patient (see Direct Payments chapter). A payment can only be made if valid consent has been given. In determining whether a direct payment should be made, funding authorities must have regard to whether it is appropriate for a person with that person’s condition, taking into account the impact of that condition on the person’s life and whether a direct payment represents value for money. A payment can also, in certain circumstances, be made to a nominated person.

The relevant social services authority for the funding of section 117 is usually that where the person was ordinarily resident prior to their first detention on a qualifying section for s117, unless that local authority with the relevant ICB with good reason ended the s117 entitlement.

It is the responsibility of the local authority to hold a register of all those subject to section 117 within the authority. The local authority and ICB should maintain a record of whom they provide aftercare services for in their area and out of county.

5. Reviewing and Ending Section 117 Aftercare

Aftercare lasts as long as there is a need to be met and must remain in place until such a time that both the ICB and the local authority are satisfied that the patient no longer has needs for aftercare services. Care and treatment needs can be reviewed periodically by the ICB and the local authority, and aftercare can be altered as the person’s needs change.

Section 117 aftercare cannot be withdrawn without reassessing the person’s needs. The person must be fully involved in any decision-making process in relation to the ending of aftercare, including, if appropriate consultation with relevant carer/s and advocate/s.

Aftercare cannot be withdrawn simply because someone has been discharged from specialist mental health services, or an certain period has passed, or they have been returned to hospital and / or further detained under MHA and / or Mental Capacity Act (MCA).

If aftercare services area withdrawn, they can be reinstated if it becomes obvious that withdrawing the services was premature or unlawful.

The patient is entitled to refuse aftercare services and cannot be forced to accept them. It is important to note that just because someone may refuse services, this does not automatically mean that there is not a need, and therefore does not automatically mean that aftercare services should be withdrawn.

It may well be that whilst receiving s117 aftercare for a mental disorder, a person requires services for a separate physical or mental disorder, care for these would need to be addressed by a separate care plan under the Care Act.

10. Further Reading

10.1 Relevant chapter

Defining Mental Disorder

6.2 Relevant information

Ombudsmen Release Joint Guidance to Tackle Common Mistakes in Aftercare of Mental Health In-patients, LGSCO)

Coexisting severe mental illness and substance misuse: community health and social care services (NICE)

Transition between inpatient mental health and community and care home settings (NICE)

Appendix 1: Case Law – Ceasing to be Detained and on Leaving Hospital

In R (on the application of CXF (by his mother, his litigation friend)) v Central Bedfordshire Council [2018] EWCA Civ 2852, the Court considered whether:

• the public body’s duty to provide after-care services to a detained patient extended to the funding of cost of visits of patient’s mother.
• Whether mother’s expenses could be recovered as provision of after-care services.
• Whether patient had left hospital and ceased to be detained on escorted day trips.

The facts

1. The claimant had been diagnosed with autistic spectrum disorder, severe and profound learning disabilities, speech and language impairment and attention deficit hyperactivity disorder.
2. From  June 2016 he had been detained as a patient for purposes of treatment under section 3 of the MHA 1983. Because of the limited number of specialist residential placements at which suitable treatment could be provided, he was detained at an institution in Norfolk some 120 miles from his parental home in Bedfordshire.
3. Under section 17 MHA 1983 his clinician granted him a daily leave of absence to go on bus trips which could take place up to three times a day. Once a week his mother would make the 240 mile round trip to visit him and would go with him on some of these bus trips and help engage in other activities such as shopping, walks on beaches and visits to favourite museums.
4. It was accepted by the court that these visits by the mother and the contact with her were therapeutically beneficial to him.
5. The claimant argued that the expenses should be reimbursed under section 117 MHA 1983 which imposed a duty to provide ‘aftercare’ services to persons who were detained under the MHA and then ‘cease to be detained and … leave hospital.’

Decision

1. The judge at first instance rejected the claim taking the view that neither the local authority nor the CCG were required to meet the mother’s travelling expenses. The judge considered that it was clear that the claimant remained at all times detained under the Act and had not left hospital even when he was enjoying a leave of absence under s 17.
2. The appeal was dismissed and It was held:
3. The claimant was still ‘detained’ in hospital for the purposes of s 117 MHA 1983 despite the grant of temporary leave of absence from time to time under s 17 MHA 1983.
4. It was not, in the court’s view, realistic to suggest that the claimant had left hospital within the terms of s117 MHA 1983. The purpose of s117 was to arrange for the provision of services to a person who had been but was not currently being provided with treatment as a hospital patient.
5. That purpose was only capable of being fulfilled if the person was not currently admitted to a hospital at which they were receiving treatment, which was not the case here.
6. It was not necessary for the patient to have been discharged for the section to apply. Each return for a supervised trip did not amount to a readmission. The trips were part of the hospital treatment and did not constitute aftercare services to which the section applied.
7. The claimant had not left hospital in the meaning of the section on these escorted day trips. Therefore, no expenses could be claimed under section 117 of MHA

Appendix 2: Rules in Relation to CTO Patients in the Community

There are two requirements for CTO patients in the community to be given medication for mental disorder. These are:

• the usual authority: what would be required to give a patient medication if they were not subject to the MHA, that is:
  • the patient’s consent if the patient has capacity; or
  • in the patient’s best interest if the patient lacks capacity, but only if the patient does not resist or it is given with the authority of a person with a lasting power of attorney for health and welfare decisions
• a certificate: the Part 4A certificate is signed by the Responsible Clinician (or Approved Clinician with responsibility for medication) if the patient has capacity and is consenting; the certificate is signed by a SOAD (Second opinion appointed doctor) if the patient lacks capacity.

CTO patients require a certificate.

The Supreme Court has held in Welsh Ministers v PJ [2018] UKSC 66 that there is no power to impose conditions on a CTO which has the effect of depriving a patient of his liberty. Hence if a person is subject to a CTO and a deprivation of liberty (DOL) the Court of Protection needs to authorise the DOL.

1. Introduction

Mental health and mental wellbeing can have different meanings to each individual. If a person feels well they have good mental health they will be able to cope well with day to day life, make the most of their potential and partake fully in social, family, community and work related activity.

When a person does not feel that they are in a state of good mental health, it can affect their daily activity and their perception on life, so daily life, work and socialising with family, friends, colleagues and the wider community becomes difficult.

2. Mental Health Act 1983

In legal terms, the Mental Health Act 1983 (amended 2007) does not use the expression mental health, but refers to mental disorder.

2.1 Amendments to the Act

The amendments of the MHA in 2007 simplified the previous criteria and outlined mental disorder to be ‘any disorder or disability of the mind’.

Whist mental disorder is now classified as such, a diagnosis of a learning disability does not count for detention or treatment under the Act unless it is ‘associated with abnormally aggressive or seriously irresponsible conduct.’

People with a learning disability are considered under the MHA only if they exhibit behaviour that is ‘abnormally aggressive or seriously irresponsible’. A  person cannot be detained under the Act purely as a result of their learning disability alone.

Amendments to the Act also mean that people with personality disorders who used not to be detainable under the Act (because their disorders did not result in ‘abnormally aggressive or seriously irresponsible conduct on the part of the person concerned’) can now be detained.

There is still an exclusion that relates to a dependence on drink or drugs which means a person cannot be detained under the MHA 1983 solely for such a dependency, but they can be detained if it arises because of or from a mental disorder.

Chapter 2 of the Code of Practice to the MHA 1983 (2007) explains in further detail what illnesses may be considered under the Act and also references personality disorders and the MHA.

3. Further Reading

3.1 Relevant chapters

Section 117 Aftercare

Interface between the Mental Capacity Act 2005 and the Mental Health Act 1983

3.2 Relevant information

Mental Health Act 1983 Code of Practice 2007 (amended 2015)

Guidance for the Implementation of Changes to Police Powers and Places of Safety Provisions in the Mental Health Act 1983 (Department of Health and Social Care and the Home Office) 

1. Introduction

The Independent Mental Capacity Advocate (IMCA) was introduced by the Mental Capacity Act 2005 (MCA). The Act gives some people who lack capacity a right to receive support from an IMCA.

The local authority has a duty to make sure that IMCAs are available to represent people who lack capacity to make specific decisions, so staff will need to know when an IMCA must be involved (see Mental Capacity).

IMCAs are independent and generally work for advocacy providers who are not part of a local authority or the NHS.

2. Eligibility

2.1 Independent Mental Capacity Advocates

The majority of adults who access the IMCA service are people with learning disabilities, older people with dementia, people who have an acquired brain injury or people with mental health problems and / or are affected by drug or alcohol use.

IMCAs also act when people have a temporary lack of capacity because they are unconscious or barely conscious whether due to an accident, being under anaesthetic or as a result of other conditions.

A person’s capacity may vary over time or may depend on the type of decision that needs to be made.

Many adults have significant barriers to communication and are unable to instruct the advocate themselves. In addition, many people using the service will be unable to express a view about the proposed decision.

The IMCA service is provided for any person aged 16 years or older, who has no one able to support and represent them, and who lacks capacity to make a decision about either:

• a long-term care move;
• serious medical treatment;
• safeguarding adult procedures; or
• a care and support plan review.

Such a person will have a condition that is affecting their ability to make decisions.

IMCAs should be available to people who are in prison, in hostels or homeless and who lack capacity to make decisions about serious medical treatment or long term accommodation.

Many people who qualify for advocacy under the Care Act will also qualify for advocacy under the MCA. The same advocate can provide support as an advocate under the Care Act and under the MCA. This is to enable the person to receive seamless advocacy so that they don’t have to repeat their story. Whichever legislation the advocate is acting under, they should meet the appropriate requirements for an advocate under that legislation.

Both the Care Act and the MCA recognise the same areas of difficulty, and both require a person with these difficulties to be supported and represented, either by family or friends, or by an independent advocate or independent mental capacity advocate in order to communicate their views, wishes and feelings.

People who qualify for an IMCA in relation to the care planning and care review – as that planning may result in an eligible change of accommodation decision – in nearly all cases will also qualify for independent advocacy under the Care Act. The provisions of the Care Act are however wider and apply to care planning irrespective of whether it may result in a change of accommodation decision. People for whom there is a power to instruct an IMCA in relation to care review will (in nearly all cases) also qualify for independent advocacy under the Care Act. The Care Act however creates a duty rather than a power in relation to advocacy and care reviews (see Section 3, The Care Act and the Mental Capacity Act).

2.2 Independent Mental Health Advocates

Under the Mental Health Act 1983 (MHA) people, known as ‘qualifying patients’, are entitled to the help and support from an Independent Mental Health Advocate (IMHA).

Independent advocacy under the duty flowing from the Care Act is similar in many ways to independent advocacy under the MHA. Regulations have been designed to enable independent advocates to be able to carry out both roles. For both:

• the advocate’s role is to support and represent people;
• the advocate’s role is primarily to work with people who do not have anyone appropriate to support and represent them;
• the advocates require a similar skill set;
• regulations about the appointment and training of advocates are similar;
• local authorities are under a duty to consider representations made by both independent advocates and IMHAs;
• advocates will need to be well known and accessible;
• advocates may challenge local authority decisions.

3. The Care Act and the Mental Capacity Act

3.1 Advocacy duties under the Care Act

The duty to provide independent advocacy is to provide support to:

• people who have capacity but who have substantial difficulty in being involved in the care and support ‘processes’;
• people in relation to their assessment and / or care and support planning regardless of whether a change of accommodation is being considered for the person;
• people in relation to the review of a care and / or support plan;
• people in relation to safeguarding processes (though IMCAs may be involved if the authority has exercised its discretionary power under the MCA and appointed an IMCA if protective measures are being proposed for a person who lacks capacity, at the time to make the relevant decisions or understand their consequences);
• carers who have substantial difficulty in engaging, whether or not they have capacity;
• people for whom there is someone who is appropriate to consult for the purpose of best interests decisions under the Mental Capacity Act, but who is not able and / or willing to facilitate the person’s involvement in the local authority process;
• adults who are subject to a safeguarding enquiry or safeguarding adult review (see Safeguarding Procedures for Responding in Individual Cases and Section 5, Safeguarding Adults Reviews, Safeguarding Adults Boards.

3.2 Care Act and Mental Capacity Act

A person may be entitled to an advocate under the Care Act and then, as the process continues it may be identified that there is a duty to provide an advocate (IMCA) under the MCA. This will occur for example when during the process of assessment or care and support planning it is identified that a decision needs to be taken about the person’s long term accommodation. It would be unhelpful to the individual and to the local authority for a new advocate to be appointed at that stage.

It would be better that the advocate who is appointed in the first instance is qualified to act under the MCA (as IMCAs) and the Care Act and that the commissioning arrangements enable this to occur.

4. Role of the IMCA

The IMCA should go to meetings on the adult’s behalf and examine proposed decisions to make sure that:

• all options have been considered;
• where the adult’s own preferences and dislikes can be identified, these are taken into account;
• no particular agendas are being pursued; and
• the person’s civil, human and welfare rights are being respected.

The IMCA should not offer their own opinion or make the decision.

They should be experienced at working with people who have difficulties with communication. They should always attempt to get to know the adult’s preferred method of communication and spends time finding out if a person is able to express a view and how they communicate.

5. Safeguarding Adult Cases and Care and Support Plan Reviews

When people meet the IMCA criteria, the local authority and the NHS have a duty to instruct an IMCA for changes in accommodation and serious medical treatment decisions.

For safeguarding adult cases and care and support plan reviews, the local authority and the NHS have powers to appoint an IMCA where they consider the appointment would be of particular benefit to the person concerned.

Local authorities in England should have a policy on how IMCAs will be involved in care and support plan reviews and safeguarding adult procedures.

The local authority and the NHS have powers to instruct an IMCA to support and represent a person who lacks capacity where:

• it is alleged the person is or has been abused or neglected by another person; or
• it is alleged the person is abusing or has abused another person

A responsible body can instruct an IMCA to support and represent a person who lacks capacity when:

• they have arranged accommodation for that person;
• they aim to review the arrangements (as part of a care plan or otherwise); or
• there are no family or friends whom it would be appropriate to consult.

6. Referrals and the Referral Process

Any adult who meets the following criteria must be referred to the IMCA service.

• Is a decision being made about serious medical treatment or a change of accommodation; or a care and support plan review or safeguarding adult procedures?
• Does the person lack capacity to make this particular decision?
• Is the person over 16 years old?
• Is there nobody (other than paid staff providing care or professionals) whom the decision maker considers willing and able to be consulted about the decision? (This does not apply to safeguarding adult cases.)

NHS bodies must instruct and take into account information from an IMCA where decisions are proposed about serious medical treatment, where the person lacks capacity to make the decision and there are no family or friends who are willing and able to support the person.

Serious medical treatment involves:

• giving new treatment;
• stopping treatment that has already started; or
• withholding treatment that could be offered; and where there is either:
  1. a fine balance between the benefits and the burdens and risks of a single treatment;
  2. choice of treatments which are finely balanced; or
  3. what is proposed would be likely to involve serious consequences.

A person has a right to an IMCA if such treatment is being contemplated on their behalf and the person has been assessed as lacking capacity to make the decision for themselves at that time.

An IMCA cannot be involved if the proposed treatment is for a mental disorder and that treatment is authorised under Part IV of the Mental Health Act 1983. However, if a person is being treated under the MHA and the proposed treatment is for a physical illness, for example, cancer, an IMCA can be involved

Local authority and NHS staff must be able to identify when a person has a right to an IMCA and know how to instruct an IMCA.

Firstly, they should know which organisation has been commissioned to provide an IMCA service in the local authority. Local arrangements will be in place with each IMCA service provider regarding the ways in which referrals can be made. (To make a referral, please see Knowsley Advocacy Hub | n-compass)

At the time when the referral is made it must be evident that:

• a person lacks the capacity to make the particular decision;
• the decision is either serious medical treatment; a change in accommodation, a care review or an adult protection case; and
• there is nobody who can appropriately support and represent the person (this does not apply to safeguarding adults).

7. When an IMCA cannot be involved

An IMCA cannot be involved if:

• a person has capacity;
• the proposed serious medical treatment is authorised under the MHA and is therefore for a mental disorder rather than a physical condition;
• the proposed long term change in accommodation is a requirement under the MHA;
• there is no identifiable decision about a long term change in accommodation or serious medical treatment or decisions relating to a care and support plan review or safeguarding adult procedures;
• there is any other person (not in a paid capacity) who is willing and able to support and represent appropriately the person who lacks capacity (please note, a family member may not be suitable if, for example, they are implicated in a safeguarding incident); or
• decisions are being made in relation to a person’s finances, unless there are safeguarding adult procedures in which an IMCA is involved.

The IMCA will stop being involved in a case once the decision has been finalised and they are aware that the proposed action has been carried out. They will not be able to provide ongoing advocacy support to the person. If it is felt that a person needs advocacy support after the IMCA has withdrawn, it may be necessary to make a referral to a local advocacy organisation (see Independent Advocacy).

8. Person requiring an IMCA is Receiving Funding from outside the Area where they are currently Living

Each IMCA service covers a local authority area and all eligible people in that area, whether on a permanent or temporary basis, must be referred to the local IMCA service. For example, if a person is living in a care home in Cambridgeshire but Essex County Council are providing the funding for that placement and there is a need to refer the person to IMCA, the Cambridgeshire IMCA service should provide the service.

9. Further Reading

9.1 Relevant chapters

Independent Advocacy

Mental Capacity

Assessment

Adult Safeguarding

Review of Care and Support Plans

9.2 Relevant information

Mental Capacity Act: Making Decisions, Office of the Public Guardian

Advocacy Services for Adults with Health and Social Care Needs (NICE)

Audio & Quick Read Summary

1. The Deprivation of Liberty Safeguards

A deprivation of liberty can occur in any care setting and is when a person has their freedom limited in some way.

Schedule 1, Part 1, Section 5(4) of the Human Rights Act, 1998, states that ‘everyone who is deprived of his [their] liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his [their] detention shall be decided speedily by a court and his release ordered if the detention is not lawful’.

In England and Wales, the Deprivation of Liberty Safeguards (DoLS) are used to check that actions which limit the liberty of a person who does not have the capacity to consent to this, are done in the least restrictive way necessary to keep them safe and that it is in their best interests.

DoLS provide a process for a deprivation of liberty to be made legal through either ‘standard’ or ‘urgent’ authorisation processes. These processes are designed to prevent the making of arbitrary decisions to deprive a person of liberty. They also give people a right to challenge deprivation of liberty authorisations.

2. Identifying Deprivation of Liberty

In 2014, a ruling by the Supreme Court (P v Cheshire West and Chester Council and P&Q v Surrey County Council, March 2014) held that, as well as hospitals and registered care homes, a deprivation of liberty can also occur in domestic / home type settings where the state is responsible for enforcing such arrangements. This may include a placement in a supported living arrangement in the community and in a person’s own home. Where a deprivation of liberty occurs outside of a hospital or registered care home, it must be authorised by the Court of Protection (see Section 11, Deprivation of Liberty outside a Hospital or Registered Care Home Setting).

It is crucial that all care providers can recognise when a person might be deprived of their liberty by applying the acid test (see Section 3, below) and then take the required action by applying for an authorisation to the supervisory body / Court of Protection. This extends to all hospitals and registered care homes, domiciliary care providers, and day services.

Associated health and social care professionals must also be able to identify a potential deprivation of liberty, and know how to notify the supervisory body of deprivation of liberty which may be unauthorised.

3. The Acid Test

In its 2014 ruling, the Supreme Court clarified that there is a deprivation of liberty where the person:

• is under continuous supervision and control (all three of these aspects are required); and
• is not free to leave;
• lacks capacity to consent to these arrangements; and
• whose confinement is the responsibility of the State.

This means that if a person who lacks capacity to consent to this is subject to continuous supervision and control and is not free to leave, they are deprived of their liberty.

The following are factors are not relevant to determining of there is a deprivation of liberty:

• the person’s compliance or lack of objection;
• the reason or purpose behind a particular placement; and
• the extent to which it enables them to live a relatively normal life for someone with their level of disability.

See also Deprivation of Liberty Safeguards: At a Glance (SCIE) 

4. Restrictions and Restraint

There is a difference between deprivation of liberty (which is unlawful, unless authorised) and restrictions on a person’s freedom of movement.

Restrictions of movement (if in accordance with the principles and guidance of the Mental Capacity Act 2005 (MCA) can be lawfully carried out in a person’s best interests, in order to prevent harm. This includes use of physical restraint where that is proportionate to the risk of harm to the person and in line with best practice.

Neither the MCA nor DoLS can be used to justify the use of restraint for the protection of members the public, members of staff, or other service users or patients.

Examples of restraint and restrictions include:

• using locks or keypads to prevent a person leaving a specific area;
• administration of certain medication, for example to calm a person;
• requiring a person to be supervised when outside;
• restricting contact with family and friends, including if they could harm the person;
• physical intervention to stop someone from doing something which could harm themselves;
• removing items from a person which could harm them;
• holding a person so they can be given care or treatment;
• using bedrails, wheelchair straps, and splints;
• requiring close supervision / monitoring in the home;
• the person having to stay somewhere they do not want;
• the person having to stay somewhere their family does not want.

5. The Deprivation of Liberty Safeguards Process

5.1 Making an application for a standard authorisation

There are several stages involved in authorising a deprivation of liberty.  It is the local authority’s legal duty, as supervisory body, to ensure that where a person is being deprived of their liberty in a hospital or a registered care home, or a deprivation of liberty is being proposed, that steps are taken to safeguard them. This only applies to people where they are ‘ordinarily resident’. The supervisory body organises and oversees the entire process for authorising a deprivation of liberty that occurs in a registered care home or hospital. (See Liverpool City Region: Ordinary Residence Practice Guidance chapter for more guidance on deciding ordinary residence where this is unclear).

Annex 1 in the DoLS Code of Practice provides an overview of the legal process that begins when an application for a standard authorisation is received.

Overview of the Deprivation of Liberty Safeguards Process Flowchart (click on the image to enlarge it).

As a first step, the managing authority (the hospital or registered care home) must fill out a Form 1 Deprivation of Liberty Safeguards: Resources, DHSC) requesting a standard authorisation. This should be sent to the supervisory body (the local authority), who will then decide whether the person meets the necessary requirements for a standard authorisation to be granted or not granted.

5.2 Managing authority granting an urgent authorisation

The managing authority must decide whether an urgent authorisation should be issued in addition to their application for a standard authorisation (this is their responsibility) or whether just a standard authorisation is needed.

An urgent authorisation enables the managing authority to lawfully deprive the relevant person of their liberty for a maximum of seven days where certain criteria are met. This can be extended for a further seven days by the supervisory body, but only if certain criteria are met (see Deprivation of Liberty Safeguards: Resources, DHSC).

When issuing an urgent authorisation, the managing authority must reasonably believe a standard authorisation would be granted.

Before granting an urgent authorisation, the managing authority should try to speak to the family, friends and carers of the person and inform the person managing the person’s care. Information they provide may assist in preventing the adult being deprived of their liberty. Efforts to contact family and friends and any discussions had with them should be documented in the adult’s case records and on the urgent authorisation. The managing authority also need to ensure that they provide up to date contact information of friends / family / carers / advocates / allocated worker and other professionals on the Form 1 when they make the referral or grant themselves an urgent authorisation.

6. The Assessment Process

Before the supervisory body can grant an authorisation for a deprivation of liberty they will arrange for the following assessments to be completed:

• mental health assessment: to confirm whether the person has an impairment / disturbance in the mind or brain;
• eligibility assessment: to confirm the person’s existing or potential status under the Mental Health Act, and whether it would conflict with a DoLS authorisation (this would normally be in a hospital setting).
• mental capacity assessment: carried out by either the mental health or best interest assessor to determine the person’s capacity to validly consent to their current care arrangements;
• best interests assessment: confirms whether deprivation of liberty is occurring, whether it could be avoided, and whether it is in the person’s best interests. The assessment will also recommend, how long the authorisation should last and who should act as a person’s representative throughout the period of authorisation;
• age assessment: to confirm the person is at least 18 years of age for DoLS. If a person is between the ages of 16 and 18 years of age, application needs to be made to the Court of Protection if they need to be deprived of their liberty;
• no refusals assessment: to confirm whether there is any valid advance decision which would conflict with the authorisation, or a person with a valid and registered Lasting Power of Attorney with authority over welfare decisions.

The assessments must be completed by specially trained professionals.

An Independent Mental Capacity Advocate (IMCA) may also be appointed during the assessment process if required if the person does not have any family / friends or other non-professionals involved (see Independent Mental Capacity Advocate Service chapter).

7. Granting or Not Granting a Standard Authorisation

If any of the requirements in Section 6, The Assessment Process are not met, deprivation of liberty cannot be lawfully granted. This may mean the registered care home or hospital must change its care plan to remove the restrictions and restraints causing the deprivation of liberty.

If all requirements are fulfilled, the supervisory body must grant the deprivation of liberty authorisation, for up to a maximum of one year. The supervisory body must inform the adult, those consulted, and the managing authority in writing.

The restrictions should cease as soon as the adult no longer requires them; they do not have to be in place for the full period of the authorisation.

At the end of the authorisation period, if it is believed the adult still needs to be deprived of their liberty, the managing authority must request another authorisation.

8. Conditions and Recommendations

The best interests assessor can recommend certain conditions are applied to the standard authorisation. The supervisory body are responsible for issuing the recommended conditions if they agree with them or can issue ones of their own on the authorisation, which must be fulfilled by the managing authority.

It is ultimately the supervisory body’s responsibility that any conditions attached to a DoLS authorisation are complied with. The supervisory body should also send a monitoring form to the registered care home or hospital where a person is deprived of their liberty for them to feedback about conditions.

The best interests assessor or supervisory body can also give recommendations to the local authority or organisation managing a person’s care relating to the deprivation of liberty.

9. Appointing a Relevant Person’s Representative

Everyone who is subject to a deprivation of liberty standard authorisation will be appointed a Relevant Person’s Representative (RPR). They must maintain frequent face to face contact with the person, and represent and support them in all related matters, including requesting a review or applying to the Court of Protection to present a challenge to a DoLS authorisation.

If there is no family member, friend, or informal carer suitable to be the person’s representative, the DoLS office will appoint a paid representative. Their name should be recorded in the person’s health and social care records.

The RPR has the right to request the advice and support of a qualified IMCA (see Independent Mental Capacity Advocate Service chapter).

In Re KT & others, which was heard before the Court of Protection, Mr Justice Charles approved the use of general visitors to act as Rule 3A (now Rule 1.2) Representatives when there is no one else – such as family members or advocates – available to act for the person who is the subject of the proceedings. General visitors are commissioned by the Court of Protection to visit the person and others involved in the case, and report back their findings. Appointing a general visitor safeguards the rights of the person in the proceedings.

It is also the responsibility of the Representative or Paid Representative to ensure that any conditions attached to a DoLS authorisation are complied with and report this back to the Court.

See Chapter 7 DoLS Code of Practice for more information on the role of the RPR.

10. Reviewing the Standard Authorisation

This is also known as Part 8 DoLS Review. The registered care home / hospital (managing authority) must monitor and review the adult’s care needs on a regular basis and report any change in need or circumstances that would affect the deprivation of liberty authorisation or any attached conditions. The home / hospital must request a DoLS review if:

• the adult (who is the ‘relevant person’) no longer meets any qualifying requirements;
• the reasons they meet the qualifying requirements have changed;
• it would be appropriate to add, amend or delete a condition placed on the authorisation due to a change in the adult’s situation;
• the adult or their representative has requested a DoLS review, which they are entitled to do at any time.

The supervisory body where necessary, will arrange for assessors to carry out a review of an authorisation when statutory conditions are met. Statutory DoLS reviews do not replace other health or social care reviews.

A review of the DoLS requirements and or conditions can be undertaken, if necessary, at any time during an authorisation period.

10.1 Where the relevant person ‘objects’ to being deprived of their liberty in a hospital or registered care home

Paragraph 4.45 of the DoLS Code of Practice highlights that ‘if the proposed authorisation relates to deprivation of liberty in a hospital wholly or partly for the purpose of treatment of a mental disorder, then the relevant person (also known as the relevant person) will not be eligible if:

• they object to being admitted to hospital, or to some or all the treatment they will receive there for mental disorder; and
• they meet the criteria for an application for admission under section 2 or section 3 of the Mental Health Act 1983 (unless an attorney or deputy, acting within their powers, had consented to the things to which the person is objecting).

A judgement by Mr Justice Baker Royal Courts of Justice February 2015 ruled that in all cases where a person lacks capacity, a DoLS assessment has been completed and the relevant person objects to their placement, a referral must be made to the Court of Protection under S 21A.

This referral would often be made by the Relevant Person’s Representative (RPR) (see Section 9, Appointing the Relevant Person’s Representative) but if this does not happen the local authority should take action to make the referral themselves.

Practice lessons from the judgement include:

• plan in advance: care should be taken to ensure that a DoLS assessment is completed prior to the move of the relevant person into residential accommodation. There should be very few exceptions to this rule. DoLS assessments should be completed in the case of ‘respite’ care if it is likely that this will become permanent either prior to the placement or with urgency after the placement is started;
• RPR – conflict of interest: care should be taken that the person appointed as the RPR is willing to make a referral to the Court of Protection if the relevant person objects to their placement. This may be difficult if the RPR is a family member who has a personal interest in the placement of the relevant person. In this case a paid representative should be appointed;
• local authority duty (supervisory body): the local authority has a duty to check that the RPR meets all the criteria and, if not, to take action to rectify this. They should make resources available to support IMCAs;
• challenge to placement: where the relevant person is challenging their placement, action should be taken speedily to refer to Court of Protection.

This is the judgement: AJ (Deprivation of Liberty Safeguards). 

11. Deprivation of Liberty outside a Hospital or Registered Care Home Setting

This is also known as deprivation of liberty in a domestic setting.

Applications to authorise a deprivation of liberty in the community are made to the Court of Protection (contact the local authority’s legal department for more details). In most cases the authorisation is a paper-based application that should not require a court hearing.

As a practitioner you will also need to ascertain whether the person who has a care package at home or in supported living, may be deprived of their liberty by way of their care plan – that is, do they meet the ‘acid test’ as described above in Section 3, The Acid Test?

• If, after consideration, the person meets the ‘acid test’, you will need to make the application for a deprivation of liberty which can only be authorised by the Court of Protection.
• Let your manager know that you are working with a person who may be deprived of their liberty. This is important as all referrals to the Court of Protection need to be sent via the relevant legal team and there is a cost involved.
• Follow the relevant guide from your legal department to make a deprivation of liberty application as soon as possible.
• It is possible for more than one application to be made to the Court of Protection at a time and the court is currently able to accept numerous applications at the same time.
• It is important that a person who has a Deprivation of Liberty authorisation in the community also has a Representative (COP Rule 1.2 part 3a); this person is appointed by the Court.

Court of Protection Hub Case Summaries – Court of Protection Hub

12. Alerting to Unlawful Deprivation of Liberty

If a person (professional or otherwise) suspects a person is being deprived of their liberty under the acid test (see Section 3, The Acid Test) and it has not been authorised, they should first discuss it with the registered care home manager, hospital ward manager or supported living manager.

If the manager agrees the care plan involves deprivation of liberty, they should be encouraged to make a request for authorisation. Everyone should be satisfied the care plan contains the least restrictive option available to keep the person safe, and that it is in the person’s best interest.

If the manager does not agree to make a request for a DoLS authorisation, the concerned person should approach the local authority or the Court of Protection to discuss the situation and report the potential unlawful deprivation.

13. Consequences of an Unlawful Deprivation of Liberty

If an organisation breaches a person’s human rights (Articles 5 & 8) by unlawfully depriving them of their liberty, it could result in legal action being taken, including a court declaration that the organisation has acted unlawfully and breached the adult’s human rights. This could lead to a claim for compensation, negative press attention and remedial action taken by commissioners and regulators.

14. Patients Receiving Life Sustaining Treatment

See Intensive Care Society and the Faculty of Intensive Care Medicine Guidance on MCA / DoL

The judgement in R (Ferreira) v HM Senior Coroner for Inner South London held that patients in intensive care  are not necessarily deprived of their liberty as per the acid test in Cheshire West, as the facts in the two cases differ. The effect of this judgement is that even if a patient receiving ‘life sustaining treatment’ (S.4b MCA) appears to be deprived of their liberty, they will not be said to be so if the primary condition they are being treated for is a physical condition even if there is an underlying mental disorder and they are an inpatient in intensive care.

“There is in general no need in the case of physical illness for a person of unsound mind to have the benefit of safeguards against deprivation of liberty where the treatment is given in good faith and is materially the same treatment as would be given to a person of sound mind with the same physical illness.” (Judge Lady Justice Arden)

The Judge also held however that there may be some circumstances where a deprivation of liberty arises and needs to be authorised. In NHS Trust I v G [2015] for example, a hospital sought authorisation to deprive a pregnant woman of her liberty. The order prevented her from leaving the delivery suite and authorised invasive medical treatment such as a caesarean section.

Any treatment, therefore, for a primary condition which is a physical condition will not constitute a deprivation of liberty where the same treatment would be given to a patient who had capacity.

15. Further Reading

15.1 Relevant chapters

Mental Capacity

Independent Advocacy

15.2 Relevant information

Deprivation of Liberty Safeguards: Code of practice to supplement the main Mental Capacity Act 2005 Code of Practice

Deprivation of Liberty Safeguards: Forms and Guidance (Department of Health and Social Care)

Department of Health Advice Note (28 March 2014)

Identifying a deprivation of liberty: a practical guide – summaries of key cases, Law Society (2015)

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