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Deprivation of liberty: Mental Capacity Act safeguards versus the Mental Health Act

Deprivation of liberty: Mental Capacity Act safeguards versus the Mental Health Act SPECIAL ARTICLES Cairns et al Deprivation of liberty safeguards versus the Mental Health Act Deprivation of liberty: Mental Capacity Act safeguards versus the Mental Health Act 1,2 3 1,4 Ruth Cairns, Genevra Richardson, Matthew Hotopf The Psychiatrist (2010), 34,246-247, doi: 10.1192/pb.bp.109.027227 Institute of Psychiatry, London; Summary The Mental Capacity Act deprivation of liberty safeguards have been Maudsley Hospital, London; criticised for their complexity and unclear interface with existing mental health law. 3 4 King’s College London; King’s College The new legislation, which was implemented in April 2009, is likely to pose a Hospital, London challenge to clinical teams. Correspondence to Ruth Cairns ([email protected]) Declaration of interest None. The Mental Capacity Act deprivation of liberty safeguards between a deprivation of, and restriction upon, liberty is were introduced via the Mental Health Act 2007 amend- merely one of degree or intensity and not one of nature or 2 5 ments on 1 April 2009. The new legislation has implications substance’. However, the Joint Committee on Human for practice in psychiatric and general hospitals, and Rights criticised the government’s draft illustrative particularly in care homes, where there are high numbers guidance, based on existing case law and listing factors that may amount to deprivation of liberty, as not reflecting of individuals who lack capacity to make decisions about 3,4 Munby J’s analysis of deprivation of liberty in DE and JE v. admission and treatment. Surrey County Council. The Joint Committee on Human The safeguards have been introduced in response to the European Court of Human Rights judgment of HL v. UK, Rights favoured Munby’s view that the key factor in known as the ‘Bournewood case’. The European Court of determining whether there is a deprivation of liberty is Human Rights concluded that common law, which had been not whether the person’s freedom within the institutional widely used to hold and treat patients lacking capacity, was setting is curtailed but whether or not the person is free to inadequate to satisfy the European Convention of Human leave. So, as things stand, the boundaries between lawful Rights. Specifically, it contravenes Articles 5(1) and 5(4) of restrictions of liberty and deprivation of liberty remain blurred. If Munby’s analysis of the European Convention of the Convention: the individual’s right to be detained only Human Rights is upheld by courts in the future, the via a procedure prescribed by law and the right to a speedy numbers of patients in hospitals and care homes whose care review of the legality of the detention. This means that if a amounts to deprivation of liberty may have been massively patient lacks capacity and a deprivation of liberty is felt underestimated, with huge resource and cost implications. necessary to provide the care required, common law can no longer be used and a choice must be made between deprivation of liberty safeguards and the Mental Health Act. Interface with the Mental Health Act The new legislation has been criticised for its complexity and its unclear interface with existing mental Many of the criticisms of the deprivation of liberty 7-10 health law. One concern is the failure of the Code of safeguards stem from uncertainty about their intended Practice to define deprivation of liberty, stating: ‘this is parallel use with existing mental health law. Although the ultimately a legal question and only the courts can Mental Capacity Act and Mental Health Act are grounded in determine the law’. Unfortunately, existing case law, the very different principles - patient autonomy and best best guide available, is not definitive and is open to different interests v. paternalism and risk reduction - there is interpretation. significant overlap in coverage of the two statutes. This undoubtedly leads to confusion about which regime to use in which situations. Deprivation v. restriction of liberty Where a patient meets criteria for admission under Mental Health Act Sections 2 or 3 and objects to either In the judgment of HL v. UK, the European Court of Human admission or treatment, the Mental Capacity Act Schedule Rights made it clear that the question of whether someone 1A states that the Mental Health Act should be used. The has been deprived of liberty depends on the particular presence, or not, of objection therefore becomes an circumstances of the case and stated: ‘The distinction important factor in determining which statute to use. Unfortunately, the deprivation of liberty safeguards Code of Practice does not go so far as to define ‘objection’ in this See editorial pp. 217-220, original paper pp. 221-225 and special article pp. 243-245, this issue. context. To complicate matters further, any decision has to 246 SPECIAL ARTICLES Cairns et al Deprivation of liberty safeguards versus the Mental Health Act be balanced with Mental Health Act guidance that advises, Mental Health Act, it will be difficult to delay changes where possible, that the Mental Capacity Act should be used that ensure restrictive practices are kept to a minimum. as a safe and effective (least restrictive) alternative to the Where deprivation of liberty is necessary to provide care in Mental Health Act. This means that clinicians are offered the patients’ best interests, it should now be seen as a little practical guidance to aid their judgements about positive intervention, with correct safeguards for the patient whether individuals who lack capacity and need treatment provided by the Court of Protection. for mental disorder are ‘objecting’. Furthermore, the decision about which piece of legislation to use will be based on clinical judgement rather than clear legal About the authors definitions. There is concern that this will result in arbitrary Ruth Cairns is the Chadburn Lecturer in Liaison Psychiatry at the Institute decisions being made to treat individuals with the same of Psychiatry and an Honorary Specialist Registrar at the Maudsley condition under different detention regimes, leading to Hospital, London. Genevra Richardson is Professor of Law at King’s College London. Matthew Hotopf is Professor of General Hospital Psychiatry at potential discrimination: precisely the situation that the King’s College Hospital and the Institute of Psychiatry, London. judgment in HL v. UK (paragraph 79) wanted to avoid. References Deprivation of liberty as a positive intervention 1 Department of Health. Deprivation of Liberty Safeguards: Code of Practice Importantly, the Mental Capacity Act safeguards are also to Supplement the Main Mental Capacity Act 2005 Code of Practice. TSO intended for use in general hospitals and, most widely, in (The Stationery Office), 2008. care homes. It is in the latter environment that they may 2 Department of Health. Mental Health Act. TSO (The Stationery Office), have their most positive effects. The deprivation of liberty safeguards process places emphasis on careful care 3 Owen G, Richardson G, David A, Szmukler G, Hayward P, Hotopf M. planning, patients’ best interests and the use of least Mental capacity to make decisions on treatment in people admitted to restrictive options for delivering care or treatment. High psychiatric hospitals: cross sectional study. BMJ 2008; 337: 448. staffing costs and a risk-averse culture have been obstacles 4 Raymont V, Bingley W, Buchanan A, David A, Hayward P, Wessely S, to preventing such care in the past. However, it is to be et al. Prevalance of mental incapacity in medical in-patients and associated risk factors: cross sectional study. Lancet 2004; 364:1421-7. hoped that the new legislation will trigger a shift in practice by encouraging well-considered care and treatment regimes. 5 HL v. United Kingdom (2005) 40 EHRR 437. Despite the uncertainties, the fact remains that it is 6 Council of Europe. European Convention for the Protection of Human Rights now unlawful to deprive incapacitated patients of their and Fundamental Freedoms. Council of Europe, 2003. liberty without using either the Mental Health Act or 7 Robinson R. Amending the Mental Capacity Act 2005 to provide for Mental Capacity Act detention regime. Clinical teams and deprivation of liberty. J Mental Health Law 2007; May:25-40. care organisations now have no option but to address their 8 Scott-Moncrieff L. Casenotes. Two steps forward, one step back. use of risk-averse practices and become explicit about any J Mental Health Law 2007; May:107-14. need for restrictive measures that may amount to 9 Weereratne A, Hatfield S, Burnham U, Gerry A. The Relationship between deprivation of liberty. It seems probable, given the the MCA 2005 and the MHA 1983. Butterworths New Law Guide. Mental Capacity Act 2005. Personal Welfare Decisions. LexisNexis, 2008. cumbersome paperwork required to apply for a deprivation of liberty safeguards assessment, that the new legislation 10 Richardson G. Mental capacity at the margin: the interface between two Acts. Med Law Rev 2010; 18:1-22. will result in increased Mental Health Act use in psychiatric hospitals. Recent case law has also suggested that where 11 Department of Health House of Lords, House of Commons Joint Committee on Human Rights. Legislative Scrutiny: Mental Health Bill admission is for treatment of mental disorder and the Fourth Report of Session 2006-2007 (HL paper 40 HC 288). TSO (The patient is objecting, primacy should be given to the Mental Stationery Office), 2007. Health Act – the patient’s reasons for objection are not 12 Department of Health. Draft Illustrative Guidance on the Bournewood relevant for this purpose. Therefore the interface between Safeguards. TSO (The Stationery Office), 2006. the two detention regimes is perhaps more clear-cut than 13 JE and DE v. Surrey County Council and EW (2006) EWHC 3495 (Fam). previously thought. However, outside the psychiatric hospital setting, without the ‘fallback’ option of the 14 GJ v. The Foundation Trust (2009) EWHC 2972 (Fam). http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png The Psychiatrist Unpaywall

Deprivation of liberty: Mental Capacity Act safeguards versus the Mental Health Act

Cairns, Ruth; Richardson, Genevra; Hotopf, Matthew
The Psychiatrist – Jun 1, 2010
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Abstract

SPECIAL ARTICLES Cairns et al Deprivation of liberty safeguards versus the Mental Health Act Deprivation of liberty: Mental Capacity Act safeguards versus the Mental Health Act 1,2 3 1,4 Ruth Cairns, Genevra Richardson, Matthew Hotopf The Psychiatrist (2010), 34,246-247, doi: 10.1192/pb.bp.109.027227 Institute of Psychiatry, London; Summary The Mental Capacity Act deprivation of liberty safeguards have been Maudsley Hospital, London; criticised for their complexity and unclear interface with existing mental health law. 3 4 King’s College London; King’s College The new legislation, which was implemented in April 2009, is likely to pose a Hospital, London challenge to clinical teams. Correspondence to Ruth Cairns ([email protected]) Declaration of interest None. The Mental Capacity Act deprivation of liberty safeguards between a deprivation of, and restriction upon, liberty is were introduced via the Mental Health Act 2007 amend- merely one of degree or intensity and not one of nature or 2 5 ments on 1 April 2009. The new legislation has implications substance’. However, the Joint Committee on Human for practice in psychiatric and general hospitals, and Rights criticised the government’s draft illustrative particularly in care homes, where there are high numbers guidance, based on existing case law and listing factors that may amount to deprivation of liberty, as not reflecting of individuals who lack capacity to make decisions about 3,4 Munby J’s analysis of deprivation of liberty in DE and JE v. admission and treatment. Surrey County Council. The Joint Committee on Human The safeguards have been introduced in response to the European Court of Human Rights judgment of HL v. UK, Rights favoured Munby’s view that the key factor in known as the ‘Bournewood case’. The European Court of determining whether there is a deprivation of liberty is Human Rights concluded that common law, which had been not whether the person’s freedom within the institutional widely used to hold and treat patients lacking capacity, was setting is curtailed but whether or not the person is free to inadequate to satisfy the European Convention of Human leave. So, as things stand, the boundaries between lawful Rights. Specifically, it contravenes Articles 5(1) and 5(4) of restrictions of liberty and deprivation of liberty remain blurred. If Munby’s analysis of the European Convention of the Convention: the individual’s right to be detained only Human Rights is upheld by courts in the future, the via a procedure prescribed by law and the right to a speedy numbers of patients in hospitals and care homes whose care review of the legality of the detention. This means that if a amounts to deprivation of liberty may have been massively patient lacks capacity and a deprivation of liberty is felt underestimated, with huge resource and cost implications. necessary to provide the care required, common law can no longer be used and a choice must be made between deprivation of liberty safeguards and the Mental Health Act. Interface with the Mental Health Act The new legislation has been criticised for its complexity and its unclear interface with existing mental Many of the criticisms of the deprivation of liberty 7-10 health law. One concern is the failure of the Code of safeguards stem from uncertainty about their intended Practice to define deprivation of liberty, stating: ‘this is parallel use with existing mental health law. Although the ultimately a legal question and only the courts can Mental Capacity Act and Mental Health Act are grounded in determine the law’. Unfortunately, existing case law, the very different principles - patient autonomy and best best guide available, is not definitive and is open to different interests v. paternalism and risk reduction - there is interpretation. significant overlap in coverage of the two statutes. This undoubtedly leads to confusion about which regime to use in which situations. Deprivation v. restriction of liberty Where a patient meets criteria for admission under Mental Health Act Sections 2 or 3 and objects to either In the judgment of HL v. UK, the European Court of Human admission or treatment, the Mental Capacity Act Schedule Rights made it clear that the question of whether someone 1A states that the Mental Health Act should be used. The has been deprived of liberty depends on the particular presence, or not, of objection therefore becomes an circumstances of the case and stated: ‘The distinction important factor in determining which statute to use. Unfortunately, the deprivation of liberty safeguards Code of Practice does not go so far as to define ‘objection’ in this See editorial pp. 217-220, original paper pp. 221-225 and special article pp. 243-245, this issue. context. To complicate matters further, any decision has to 246 SPECIAL ARTICLES Cairns et al Deprivation of liberty safeguards versus the Mental Health Act be balanced with Mental Health Act guidance that advises, Mental Health Act, it will be difficult to delay changes where possible, that the Mental Capacity Act should be used that ensure restrictive practices are kept to a minimum. as a safe and effective (least restrictive) alternative to the Where deprivation of liberty is necessary to provide care in Mental Health Act. This means that clinicians are offered the patients’ best interests, it should now be seen as a little practical guidance to aid their judgements about positive intervention, with correct safeguards for the patient whether individuals who lack capacity and need treatment provided by the Court of Protection. for mental disorder are ‘objecting’. Furthermore, the decision about which piece of legislation to use will be based on clinical judgement rather than clear legal About the authors definitions. There is concern that this will result in arbitrary Ruth Cairns is the Chadburn Lecturer in Liaison Psychiatry at the Institute decisions being made to treat individuals with the same of Psychiatry and an Honorary Specialist Registrar at the Maudsley condition under different detention regimes, leading to Hospital, London. Genevra Richardson is Professor of Law at King’s College London. Matthew Hotopf is Professor of General Hospital Psychiatry at potential discrimination: precisely the situation that the King’s College Hospital and the Institute of Psychiatry, London. judgment in HL v. UK (paragraph 79) wanted to avoid. References Deprivation of liberty as a positive intervention 1 Department of Health. Deprivation of Liberty Safeguards: Code of Practice Importantly, the Mental Capacity Act safeguards are also to Supplement the Main Mental Capacity Act 2005 Code of Practice. TSO intended for use in general hospitals and, most widely, in (The Stationery Office), 2008. care homes. It is in the latter environment that they may 2 Department of Health. Mental Health Act. TSO (The Stationery Office), have their most positive effects. The deprivation of liberty safeguards process places emphasis on careful care 3 Owen G, Richardson G, David A, Szmukler G, Hayward P, Hotopf M. planning, patients’ best interests and the use of least Mental capacity to make decisions on treatment in people admitted to restrictive options for delivering care or treatment. High psychiatric hospitals: cross sectional study. BMJ 2008; 337: 448. staffing costs and a risk-averse culture have been obstacles 4 Raymont V, Bingley W, Buchanan A, David A, Hayward P, Wessely S, to preventing such care in the past. However, it is to be et al. Prevalance of mental incapacity in medical in-patients and associated risk factors: cross sectional study. Lancet 2004; 364:1421-7. hoped that the new legislation will trigger a shift in practice by encouraging well-considered care and treatment regimes. 5 HL v. United Kingdom (2005) 40 EHRR 437. Despite the uncertainties, the fact remains that it is 6 Council of Europe. European Convention for the Protection of Human Rights now unlawful to deprive incapacitated patients of their and Fundamental Freedoms. Council of Europe, 2003. liberty without using either the Mental Health Act or 7 Robinson R. Amending the Mental Capacity Act 2005 to provide for Mental Capacity Act detention regime. Clinical teams and deprivation of liberty. J Mental Health Law 2007; May:25-40. care organisations now have no option but to address their 8 Scott-Moncrieff L. Casenotes. Two steps forward, one step back. use of risk-averse practices and become explicit about any J Mental Health Law 2007; May:107-14. need for restrictive measures that may amount to 9 Weereratne A, Hatfield S, Burnham U, Gerry A. The Relationship between deprivation of liberty. It seems probable, given the the MCA 2005 and the MHA 1983. Butterworths New Law Guide. Mental Capacity Act 2005. Personal Welfare Decisions. LexisNexis, 2008. cumbersome paperwork required to apply for a deprivation of liberty safeguards assessment, that the new legislation 10 Richardson G. Mental capacity at the margin: the interface between two Acts. Med Law Rev 2010; 18:1-22. will result in increased Mental Health Act use in psychiatric hospitals. Recent case law has also suggested that where 11 Department of Health House of Lords, House of Commons Joint Committee on Human Rights. Legislative Scrutiny: Mental Health Bill admission is for treatment of mental disorder and the Fourth Report of Session 2006-2007 (HL paper 40 HC 288). TSO (The patient is objecting, primacy should be given to the Mental Stationery Office), 2007. Health Act – the patient’s reasons for objection are not 12 Department of Health. Draft Illustrative Guidance on the Bournewood relevant for this purpose. Therefore the interface between Safeguards. TSO (The Stationery Office), 2006. the two detention regimes is perhaps more clear-cut than 13 JE and DE v. Surrey County Council and EW (2006) EWHC 3495 (Fam). previously thought. However, outside the psychiatric hospital setting, without the ‘fallback’ option of the 14 GJ v. The Foundation Trust (2009) EWHC 2972 (Fam).

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Published: Jun 1, 2010

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