Each of us have a Right to Liberty, as outlined in the Human Rights Act (article 5). However, in certain circumstances, these Rights can be significantly reduced and infringed upon. Typically, this would be in a healthcare setting, where certain liberties may be restricted in order to protect the individual, or others, from harm.
Understanding DoL in the Northern Ireland context
The framework around Deprivation of Liberty (DoL) in Northern Ireland is designed to give a clear a measured process by which people’s rights can be protected and safeguarded in situations where their liberties are deprived for their own protection
Under the Mental Capacity Act (Northern Ireland), a DoL is determined in light of the Acid Test, as provided in the Cheshire West ruling. This stipulates that if the person lacks capacity around a key decision then three elements must be met for a DoL to be put in place:
- A person is in a place where care or treatment is being provided
- A person is not free to leave
- A person is under continuous supervision and control
The term ‘place’ in this context can apply to either a hospital or another external setting, such as care home or community care. If a DoL is being considered, professionals must be confident that it is in a person’s Best Interest for their care and treatment, in order to prevent harm to either themselves, or to other people.
It is useful to note also that a DoL authorisation in Northern Ireland can be applied to multiple locations, allowing for appropriate safeguarding in transitions from a care home to day centre or hospital to nursing home.
Assessing and applying for DoL in Northern Ireland
If a DoL is being considered within a hospital then assessments should be completed by two healthcare professionals and can only be authorised for short periods of up to 14 days that can then be reviewed and extended if appropriate. Whereas in different settings, an initial DoL can be implemented for up to 6 months, after which it can be extended for 12 months before review.
MCA related roles
A nominated person is a representative for the individual under a DoL, who can support their voice in decisions about their care and support in challenging a decision, including raising to a Review Tribunal. This nominated person can be a family member or friend.
In terms of the responsibilities for who can carry out the assessments and related processes, it appears to be the broad responsibility of health professionals who are working alongside the individual to determine and apply. This places responsibility on health professionals to ensure appropriate knowledge, training and application of the MCA in context. It also further removes the challenges observed in England and Wales around the role of the Best Interest Assessor.
Tribunals, reviews and appeals
A part of the MCA (Northern Ireland), a person has the statutory right to appeal a decision. This can be completed in an application to the Review Tribunal. A case can further be referred to the tribunal if it has not been independently considered within a particular time.
The Act also stipulates that an application can be made by either the relevant person or their nominated person, however if P has capacity to choose if an application should be made, it must be done with their consent.
A review tribunal specifically considers if the authorisation is legal, in order to direct continuation of the authorisation or to allow the individual to be discharged from the care setting.
This is distinctly different from any form of care review or associated review of how care is provided around restrictions or restraints. Nor does it appear to take account of the objection in and of itself.
It is interesting to note that there is a clear distinction made in the MCA (Northern Ireland) between a restraint or a DoL, suggesting that a restraint cannot be a DoL, but recognising that a DoL may have restraints.
Indeed, the Act and associated Code of Practice stipulates that if a short, time-bound reaction to ‘an immediate event’ then ‘it is likely not to be a DoL’. It then provides examples of restraint include, chemical, physical, information withholding, and restrictive choice.
Compared with the MCA for England and Wales, there is also a specific difference around Best Interest Decisions, in that a decision can include consideration of potential harm to others, not just of that of the person to themselves.
As with all legislation, case law and updates continue, which include but is not limited to Assisted Decision Making (Capacity) (2015), therefore it is vital to continue to maintain Continual Professional Development and professional reflection to safeguard and support those we work alongside as well as uphold statutory requirements protecting ourselves from liability.