In simple terms a deprivation can be described as a restriction, while a deprivation of liberty is a restriction on everyday living. The Mental Capacity Act enacts vital safeguards and protections an individual who can not consent to their care and treatment is is deprived of said liberties. It protects the individual through upholding their rights, monitoring any form of restriction in place and striving to ensure these are proportionate, justifiable and the least restrictive option. In today’s blog, we consider what these restrictions may include, and the importance of keeping the individual’s voice at the heart of any Best Interest decision.
What is a DoLS restriction?
Within any placement setting, a ‘restriction’ may include formal barriers such as locked doors, security cameras, alarm mats, staff supervision and/or restricted access to certain hazardous objects (e.g. kettle, razor, cleaning products) without support.
However, DoLS restrictions don’t necessarily end there. If someone has been determined to lack mental capacity to make decisions around their care and treatment then this has the potential to affect every aspect of their daily life.
Restrictions may include which staff are available to support personal care (and when); the times and locations of family visits; when and where food is eaten; when and where they can go outside, if a family member can visit and stay over night, who can enter and leave their bed room, … the list goes on. During this time, an individual’s privacy can also often be reduced as the care team is required to have a plan in place to meet care and treatment needs. They are also required to monitor the individuals, which again, means that an individual’s life is restricted and controlled in many different ways, with every aspect of their life being recorded.
As caring professionals, we should be prepared to ask questions about everything that we do in order to ensure those under DoLS are supported as much as possible during what can sometimes be quite a difficult process. Even small changes to how we do things, such as asking ‘why is this here?’, or ‘why are we doing it this way?’ may help alleviate some of the stress of the situation and help the individual feel supported. Where does a deprivation of liberty start or end? How can we reduce the impact?
No matter who we are working alongside, we should always remember that there is no such thing as one size fits all in care.
To learn more about this subject, I highly recommend Lucy Series’ book Deprivation of Liberty in the Shadows of the Institution. DoLS is a challenging topic at the best of times, and one that raises many conflicting voices. It is therefore all the more important to consider all of the different factors at play, while also understanding how DoLS can impact those we support, those we work alongside, family, friends and ourselves.
At this stage, some readers may wonder why we have in place a system by which those under DoLS restrictions can raise objections. After all, they have been deemed to lack capacity around a particular decision, so how can they object to the Best Interest decision that is taken on their behalf?
This is a complex question that comes down to a number of landmark cases including Cheshire West, where it was established that everyone’s rights are equal – no matter if a person have capacity or not for said decision.
According to law, any person under a DoLS authorisation retains their right to have a voice and their right to object – as set out by the Human Rights Act. Some of the most important Articles that we need to bear in mind include:
- Article 2: Right to life
- Article 3: Freedom from torture and inhuman or degrading treatment
- Article 5: Right to liberty and security
- Article 6: Right to a fair trial
- Article 8: Respect for your thought, belief and religion
- Article 9: Freedom of thought, belief and religion
- Article 10: Freedom of expression
- Article 14: Protection from discrimination in respect of these rights and freedoms
Perhaps one of the most deeply challenging conclusions on this topic is that of Munby J., when he weighed up the safety, risks, health and wellbeing of a person under deprivations, stating “What good is it making someone safer if it merely makes them miserable?” Recognising the deeply impactful nature of restrictions, no matter their good intentions.
But of course, while these Articles and case law, are all important, we must recognise that an individual under DoLS may have difficulties processing and retaining information, and in expressing their rights. In order to protect these rights, the Mental Capacity Act makes it a statutory duty for a Relevant Person’s Representatives (RPR) to be assigned in order to help protect the individual’s right and ensure their voice is heard.
It is the RPR’s role to inform the individual of their rights, monitor their situation, and raise challenges to restrictions where appropriate. The RPR is also responsible for upholding any objection to care, treatment and/or placement if the individual shows any sign of objection. This may be on the grounds of a change of circumstance, change in capacity, wish to be in a different location, disagreement with the care plan, distress and disorientation, or other causes.
Protecting the individual
The process of raising an objection is all about upholding the individual’s voice and ensuring that their rights are protected. It is therefore designed to be completely objective and follow a professional process. In a majority of cases I have worked on, it is supporting a person to express their wish to live at home, in a specific location or have different restrictions in place to support their autonomy. It is a part of best practice that should be respected as an important mechanism for protecting the rights of the individual.
Find out more
You can find more information about DoLS and the forthcoming Liberty Protection Safeguards (LPS) by reading our online guides. You can also browse our blogs, which you can find via the menu at the top of the page.
Here at Mental Capacity Ltd, we provide bespoke training for health and care settings on all aspects of the Mental Capacity Act. We can also provide Mental Capacity Assessments for complex cases. For more information, email firstname.lastname@example.org