Mental Capacity Act and Deprivation of Liberty

The Mental Capacity Act 2005 provides a statutory framework for people who lack capacity to make decisions for themselves. The accompanying Code of Practice provides guidance to anyone who is working with and/or caring for people who may lack capacity to make particular decisions.

A person's capacity (or lack of capacity) refers specifically to their capacity to make a particular decision at the time it needs to be made and the lack of capacity to make a decision is caused by an impairment or disturbance that affects how the mind or brain works.

Within the Mental Capacity Act Code of Practice, 'children' refers to people aged below 16. 'Young people' refers to people aged 16-17. This differs from the Children Act 1989 and the law more generally, where the term 'child' is used to refer to people aged under 18.

The Act does not generally apply to people under the age of 16 but there are two exceptions:

1. The Court of Protection can make decisions about a child's property or finances (or appoint a deputy to make these decisions) if the child lacks capacity to make such decisions and is likely to still lack capacity to make financial decisions when they reach the age of 18;
2. Offences of ill treatment or wilful neglect of a person who lacks capacity can also apply to victims younger than 16.

Most of the Act applies to young people aged 16-17 years, who may lack capacity to make specific decisions but there are three exceptions:

1. Only people aged 18 and over can make a Lasting Power of Attorney;
2. Only people aged 18 and over can make an advance decision to refuse medical treatment;
3. The Court of Protection may only make a statutory will for a person aged 18 and over.

People carrying out acts in connection with the care or treatment of a young person aged 16-17 who lacks capacity to consent will generally have protection from liability, as long as the person carrying out the act:

• Has taken reasonable steps to establish that the young person lacks capacity;
• Reasonably believes that the young person lacks capacity and that the act is in the young person's best interests; and
• Follows the Act's principles (see Mental Capacity Act 2005, The principles).

When assessing the young person's best interests, the person providing care or treatment must consult those involved in the young person's care and anyone interested in their welfare, if it is practical and appropriate to do so. This may include the young person's parents. Care should be taken not to unlawfully breach the young person's right to confidentiality.

Nothing in the Act excludes a person's civil liability for loss or damage, or his criminal liability, resulting from his negligence in carrying out the act.

NICE Quality Standard: Decision-Making and Mental Capacity

NICE Quality Standard: Decision-Making and Mental Capacity, is a Quality Standard published by the National Institute for Health and Care Excellence (NICE) covering decision making in people aged 16 and over, using health and social care services who may lack capacity to make their own decisions (now or in the future). It aims to support implementation of the aims and principles of the Mental Capacity Act 2005 and relevant Codes of Practice. It is not a substitute for these.

The Quality Standard is based around four 'Quality Statements':

• Statement 1 - People aged 16 and over who may lack capacity to make decisions are supported with decision making in a way that reflects their individual circumstances and meets their particular needs;
• Statement 2 - People aged 16 and over at risk of losing capacity to make decisions, and those with fluctuating capacity, are given the opportunity to discuss advance care planning at each health and social care review;
• Statement 3 - People aged 16 and over who are assessed as lacking capacity to make a particular decision at the time that decision needs to be made, have a clear record of the reasons why they lack capacity and the practicable steps taken to support them;
• Statement 4 - People aged 16 and over who lack capacity to make a particular decision at the time that decision needs to be made have their wishes, feelings, values and beliefs accounted for in best interests decisions.

Against each quality statement are a set of Quality Measures which are designed to enable measurement of whether the Statements are being met, as well as an indication of what the Statement means for different audiences, including the relevant individuals themselves.

In relation to those aged 18 years or over, the Mental Capacity Act Deprivation of Liberty Safeguards (DoLS) were introduced in April 2009 as part of the implementation of the Mental Capacity Act 2005, to ensure better legal and administrative protection for all those who may, for whatever reason, lack Capacity to consent to the care they are receiving, including where they live and how they are cared for on a day to day basis.

Prior to the Mental Capacity Act, there was a lack of clarity about how the liberty and human rights of those lacking capacity to consent to their care arrangements, including where these restricted their movement and choices, should be protected. The bulk of people whom the Act was intended to help had serious disabilities including those arising from dementia, learning disabilities and serious mental health problems.

The DoLS regime only applies to hospitals (NHS or private) and care homes (registered with CQC). In any other type of placement, deprivation of liberty can only be authorised by an order from the Court of Protection. If there is no authorisation in place, then a deprivation of liberty is unlawful.

Since implementation, practice and case law has been developing. For adult services the implementation has become increasingly demanding and complex as case law has extended the people who need DoLs assessments and related legal processes, and greatly expanded the scope of what deprivation of liberty meant.

Three factors determine deprivation of liberty under Article 5 of the European Convention on Human Rights:

1. The objective element: i.e. that the person is confined to a particular restricted place for a non-negligible period of time;
2. The subjective element, i.e. that the person does not consent (or cannot, because they do not have the capacity to do so) to that confinement;
3. State imputability: i.e. that the deprivation of liberty can be said to be one for which the State is responsible.

A key judgment is the 'Cheshire West' case (P v Cheshire West and Chester Council and P&Q v Surrey County Council [2014] UKSC 19), which greatly expanded the scope of what deprivation of liberty meant. Baroness Hale said in her judgment in this case:

"If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person. The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage."

The Supreme Court in that case set out the 'acid test' as set out by Hale LJ:

When considering whether there has been a deprivation of liberty there are two key questions:

• Is the person subject to continuous supervision and control?
• Is the person free to leave? (the focus is not on the person's ability to express a desire to leave, but on what those with control over their care arrangements would do if they sought to leave).

To be deprived of their liberty, a person must be subject to both continuous supervision and control and not be free to leave their placement.

The following factors were specifically stated to be NOT relevant to the application of the test:

• The person's compliance or lack of objection;
• The relative normality of the placement; and
• The reason or purpose behind a particular placement ("a gilded cage is still a cage…").

The Supreme Court said that disabled people should not face a tougher standard for being deprived of their liberty than non-disabled people.

The difficulty for the care sector is that the Supreme Court did not come up with prescriptive criteria as to what is meant by continuous supervision and control or not being free to leave a placement. Hale LJ, who gave the leading judgment, did identify the following as being relevant:

• Control over who the incapacitated person can have contact with;
• Control over the activities that the person is allowed to participate in;
• Not being able to leave the placement without supervision; and
• Not being free to leave the placement permanently in order to reside elsewhere in a different type of setting.

At the time of the implementation of the DoL provisions, there was little consideration of whether and how the provisions might apply to children. Whilst the DoLS provisions do not apply to those under the age of 18, the case of Re D* made clear that local authorities are under a duty to consider whether any children in need, or looked-after children, (especially those in foster care or in a residential placement), are subject to restrictions which amount to a Deprivation of Liberty.

_{*(Re D (A Child: Deprivation of Liberty) 2015 EWHC 922(fam); Birmingham City Council v D [2016] EWCOP 8 – both cases involve the same young person).}

Whether or not a child is subject to a deprivation of liberty will depend on the facts of each case and should be subject to annual review. It should also be subject to review at each Looked After or Child in Need Review.

The 'Cheshire West' criteria must be applied to the individual circumstances of each case.

The comparison to be made is not with another child of the same age placed in foster care or in a residential home, but simply with another child of the same age.

Important to Note: This area is still being developed by way of case-law and legal advice must be sought as necessary.

The courts have given the following guidance.

The Re D case illuminates what a deprivation of liberty would be for a looked after child in residential or foster care. The particular case concerned (initially) a 14 year old boy who was residing in a children's home under an interim care order. He had previously been accommodated under s20 Children Act 1989. He had moderate to severe learning disability, Attention Deficit Hyperactivity Disorder, a statement of special educational needs and was under the care of child and adolescent mental health services. He was happy, settled and wished to remain in the children's home but lacked capacity to make the decision. His care regime provided for the following:

• There were three staff members on duty during the day, and two at night, for the three child residents;
• AB was not on one-to-one supervision within the unit and could be left unsupervised for short periods. But his behaviour plan stated: 'Staff must be aware of where AB is at all times. AB should be checked regularly. Staff must be authorised to work alone with AB. AB must never be left alone with another resident.' He was under 15-minute observations;
• He took medication for ADHD under supervision;
• He was not allowed to leave the unit (e.g. to go to school) unaccompanied and was closely supervised when out of the unit;
• He was only taken on public transport if calm and settled, with a staff member sat beside or behind him;
• If he behaved negatively when out and, despite warnings, he continued, he would be immediately returned to the placement;
• If he were to leave the placement unaccompanied, staff would call social services and the police to assist with his return;
• The front door was locked at night and if he left his room, staff must redirect him back unless he wanted a drink or the toilet.

The court found that the circumstances amounted to continuous supervision and control and he was not free to leave - he was deprived of his liberty.

In the later case of A-F (Children) [2018] EWHC 138 (Fam), Munby LJ indicated as a 'rule of thumb' that:

1. A child aged 10, even if under pretty constant supervision, is unlikely to be 'confined';
2. A child aged 11, if under constant supervision, may, in contrast be so 'confined', though the court should be astute to avoid coming too readily to such a conclusion;
3. Once a child who is under constant supervision has reached the age of 12, the court will more readily come to that conclusion.

The statutory framework of the Deprivation of Liberty Safeguards (DoLS) does not apply to those under 18 years of age. For under-18s, a legal framework must be placed around the arrangement in order to ensure that the deprivation of liberty is lawful.

A deprivation of liberty will be lawful if warranted under statute; for example, under

• Section 25 of the Children Act 1989 (placement in secure accommodation);
• Mental Health Act 1983;
• Youth remand provisions of the Legal Aid, Sentencing and Punishment of Offenders Act 2012;
• Custodial sentencing provisions of the Power of Criminal Courts (Sentencing) Act 2000.

Where the deprivation of liberty is not authorised by statute, then the appropriate consent must be obtained, either from the Court of Protection or from the High Court exercising its inherent jurisdiction:

• Children/Young People Under the Age of 16 - the Mental Capacity Act 2005 does not apply to those under 16 years, therefore application must be made for authorisation under the inherent jurisdiction of the High Court;
• Children/Young People Aged 16 and 17 - the Mental Capacity Act 2005 applies. An application must be made to the Court of Protection.

However authorised, the local authority should cease to impose the deprivation as soon as either:

1. The statutory criteria are no longer met; or
2. The reasons justifying the deprivation of liberty no longer subsist.

Use of Inherent Jurisdiction to Authorise a Placement Involving a Deprivation of Liberty 

The Supreme Court has held that the inherent jurisdiction of the High Court can be used to authorise the placement of a child where the prescribed statutory requirements cannot be met and there is no practical alternative but to place the child in other accommodation.

In this situation, legal advice must be sought as a matter of urgency.

Where a local authority cannot apply for a Secure Accommodation Order under section 25 Children Act 1989 because one or more of the relevant criteria are not satisfied, it may be able to apply for leave to apply for an order depriving the child of liberty under the inherent jurisdiction of the High Court if there is reasonable cause to believe that the child is likely to suffer significant harm if the order is not granted (s.100(4)) Children Act 1989).

It may be that section 25 does not apply because the criteria set out in section 25(1)(a) and (b) are not met. For example, a child who has no history, so far, of absconding, and who is not likely actually to injure themselves or anyone else, so does not satisfy section 25(1)(a) or (b), but who, for other good reasons to do with their own welfare, needs to be kept in confined circumstances.

Section 25 may not apply where the application is to place a child into accommodation which is not classed as 'secure accommodation' for the purposes of section 25, not being registered as such.

When considering an application under its inherent jurisdiction, the High Court must have the child's welfare as the paramount consideration and undertake a welfare evaluation to determine whether the deprivation of liberty proposed by the local authority is in the child's best interests, always having firmly in mind that the intervention must be both a necessary and proportionate response to the need to protect the child from the harm to which they would be exposed were the declaration not made.

Additional information to be taken into account by a court asked to authorise the confinement of a child in an unregulated placement, when the circumstances would meet the terms of section 25 Children Act 1989 were it not for the absence of an authorised registered placement, is set out in Practice Guidance: Placements in Unregistered Children's Homes in England or Unregistered Care Home Services in Wales.

This guidance sets out 'best practice' to be followed:

• When making an application to the court for an order under its inherent jurisdiction to authorise the deprivation of the liberty of a child, the applicant should make the court explicitly aware of the registration status of those providing or seeking to provide, the care and accommodation for the child;
• If not registered, the Court should be made aware of the reasons why registration is not required or the reasons for the delay in seeking registration;
• If registration is not required, the applicant must make the court aware of the steps it is taking to ensure that the premises and support being provided are safe and suitable for the child accommodated. If care rather than support is being provided, then the provision is likely to require registration as a children's home;
• If registration is required but has not yet been obtained, the court will need to be satisfied that steps are being taken to apply for the necessary registration. The court will wish to assure itself that the provider of the service has confirmed that they can meet the needs of the child. In addition, the court will need to be informed by the local authority of the steps the local authority is taking in the meantime to assure itself that the premises, those working at the premises and the care being given are safe and suitable for the accommodated child. Where an application for registration has been submitted to Ofsted (CIW in Wales), the court should be made aware of the exact status of that application.

The High Court held in MBC v AM & Ors (DOL Orders for Children Under 16) [2021] EWHC 2472 (Fam) that it remained open to the High Court to authorise, under its inherent jurisdiction, the deprivation of liberty of a child under the age of 16 in ‘other arrangements’ such as unregulated accommodation notwithstanding the ban on placement of children under the age of 16 in such accommodation under the Care Planning, Placement and Case Review (England) (Amendment) Regulations 2021. The Court stressed the requirement for rigorous application of the President’s Guidance.

The High Court subsequently held (Derby CC v CK & Ors (Compliance with DOL Practice Guidance) (Rev1) [2021] EWHC 2931 (Fam)) that the court should not ordinarily countenance the exercise of its inherent jurisdiction where an unregistered placement makes clear that it will not or cannot comply with the requirement of the Practice Guidance to apply expeditiously for registration as mandated by law.

The High Court stated in the case of In the Matter of Child J [2020] EWHC 2395 (Fam).

'The secure accommodation procedures provide important protections for children confined in such institutions. In my judgment, a placement that does not provide those same protections should only be authorised when absolutely necessary. Sadly, at the current time when there is a significant gap between registered secure accommodation provision and registered secure accommodation need, unregistered placements are often absolutely necessary'.

In that case, the local authority applied under the inherent jurisdiction for leave to apply for an order depriving a 16 year old boy of his liberty because it was not able to apply under s 25 of the Children Act 1989 – the relevant criteria not being satisfied because the placement identified and proposed was an unregistered children's home. The boy was beyond parental control and due to his involvement with criminal activity and gang violence was at high risk of significant harm or even death. The order was granted, with the following restrictions being imposed:

• Restrictions on the child's use of phone, internet and correspondence;
• Restrictions on his use of windows and doors;
• Not to be allowed to go out without permission and being accompanied by staff members from his placement and/or other professionals;
• Two to one supervision;
• Restraint to be used if required;
• Not to be permitted to access social media without supervision;
• Permission given for the doors of the property to be secured if deemed necessary for security reasons and to prevent him from leaving;
• To have restricted access to personal allowance;
• His possessions are to be searched and permission is granted to remove belongings, knives or makeshift weapons.

Case-law makes clear that each case must be decided on its own facts, and legal advice must be sought as necessary.