Deprivation of Liberty – The Bournewood Amendments: What do they mean for your care home?

From April 2009, by a wholesale amendment of the Mental Capacity Act 2005 (the “Bournewood Amendments”) Care Homes are forbidden to deprive residents of their liberty unless a strict and rigorous procedure is followed. 

This follows the decision of the European Court of Human Rights in the case of HL v United Kingdom.  48 year old HL, autistic from birth,  living with carers, and lacking the capacity to consent to treatment, and was admitted to the Bournewood Hospital (hence the name) informally and not under the Mental Health Act 1983.  Despite the carers’ strong objections, he was kept in hospital for four and a half months and the carers were not allowed to see him for three months.  The European Court had no doubt that he had been deprived of his liberty, but because he was admitted to the hospital informally, there was no procedure available in English law by which he or anyone on his behalf could challenge his detention. This decision has resulted in the introduction of a new procedure strictly regulatating the circumstances in which a Care Home resident (and a hospital patient), can be deprived of liberty.

The object of this article is to provide a broad overview of the new amendments as they affect Care Homes.

Restraint and Deprivation
It is essential to understand the difference between “Restraint”, to which the amendments do not apply and “Deprivation of Liberty”  to which they do. 

The Act excludes from authorisation restraint of a resident, unless it is a proportionate response to prevent the resident from harm.  “Restraint” is defined as either use or threat of force to secure the doing of an act which the resident resists, or which restricts the resident’s liberty of movement, whether or not the resident resists.  The Code of Practice issued in relation to the original Act (to which all carers must “have regard”) gives useful guidance and examples of what amounts to justifiable restraint – e.g. restraining a resident to facilitate a necessary blood test.  

There is no statutory definition of “Deprivation of Liberty” and the nearest to it is that it is a state of affairs which breaches Article 5 of the European Convention of Human Rights (now part of the Human Rights Act).  The difficulty in making the distinction between “Restraint”  and “Deprivation of Liberty” is that the same basic Acts can constitute both.  The difference between the two is that of degree and intensity and not nature and substance.  “Restraint” is limited; “Deprivation” is unlimited.  “Restraint” is short term; “Deprivation” is without limitation of time. The Bournewood Hospital “exercised complete and effective control over (HL’s) care and movement”.  Although HL was completely compliant, this was irrelevant.  He was effectively imprisoned in the hospital. Neither he, nor anyone on his behalf, could make any independent decision.  Contrast this with the case where the Home only imposed “ordinary restriction of liberty”, allowed unrestricted family limits and home outings, and the resident had the capacity to, and did, express himself happy in the Home.  In that case, the English High Court ruled that there had been no deprivation. (LLBC v TG. November 2007)

The machinery of Deprivation
If you are caring for, or anticipate caring for a resident who may need to be deprived of liberty, you must apply for a Standard Authorisation or issue an Urgent Authorisation.  Both of these Authorisations allow the carer to deprive the resident of liberty, but only for a limited time and only within the terms of the Authorisation. 

A Standard Authorisation can only be issued by a Supervisory Body.  For Care Homes, this will be the local authority for the area in which the resident is “ordinarily resident” or if not ordinarily resident anywhere (e.g. the resident has “no fixed abode”) then the local authority for the Home itself.  An Urgent Authorisation can only be issued by a Managing Authority i.e. the person registered or required (by Part 2 of the Care Standards Act 2000) to be registered in respect of  the Care Home.

The basic rule relating to Deprivation of Liberty is that it is forbidden – but there are exceptions as a last resort and then only to ensure the safety and well being of the resident. 

So how do you go about it?

If deprivation can be safely delayed for at least 28 days, then apply for a Standard Authorisation.  This must be done when you perceive the need for the Authorisation within that timeframe.  It applies to the person you anticipate will be resident within that time as well as an existing resident. The Supervisory Body must then make the decision and in so doing, ensure that the “Qualifying Requirements” are satisfied.  Briefly, these are that the resident is over 18, is not able to make the necessary decision for themselves, has not made a valid Advance Decision forbidding any intended treatment and is not subject to, or potentially subject to, the various regimes laid down by the Mental Health Act 1983. 

However, if in your judgement authorisation cannot be delayed, it is for the Managing Body itself to issue an Urgent Authorisation.  It can be for a maximum period of 7 days only, and although the Managing Authority cannot issue a further Urgent Authorisation in relation to the same circumstances, the Supervisory Body can extend it for a further 7 days.  Clearly, an Urgent Authorisation is a last resort and if not following a Standard  Authorisation application, then one must be made simultaneously with the issue of the  Urgent Authorisation.  There are also detailed provisions for the review and discharge of Standard Authorisations.

The new supplementary Code of Practice for Deprivation of Liberty recently issued and to which you must also “have regard” will give invaluable assistance in mastering this new procedure.

Conclusions

Just as there will be differences of opinion over “Capacity” and “Best Interests”, so there will be differences of opinion as to whether or not Deprivation of Liberty is justified. However, as long as you have mastered the technical requirements of the Act and have made decisions taking into account all that the Act requires, then the Courts will not penalise you, even if they do not agree with you.

Finally, start assessing now, those of your residents who may, in their own best interests, need to be deprived of their Liberty.