DEPARTMENT OF HEALTH
News Release issued by COI News Distribution Service on 1 April 2009
Some of the most
vulnerable people in society will be better protected against
abuse and poor care as a result of new legislation coming into
force today.
People who lack capacity in hospitals and care homes will now be
protected by a new law known as the 'Mental Capacity Act
Deprivation of Liberty Safeguards'.
The new law introduces new safeguards, so that, if a care home or
hospital needs to deprive someone of their liberty for their own
safety or wellbeing, they must now apply for permission. The law
only applies to people in care home and hospital settings who are
unable to make decisions on their own care or treatment and who
need to be deprived of their liberty in their own best interests
to protect them from harm.
The new safeguards only make it lawful for a person to be
deprived of their liberty, based on a rigorous, standardised
assessment and authorisation process. It gives people the right to
challenge any decision to deprive them of liberty, a
representative to act for them and protect their interests and the
right to have their status reviewed and monitored on a regular basis.
Care Services Minister Phil Hope said:
"Vulnerable people will now have rights where previously
they had none. Before this law came in, care homes or hospitals
were able to lock someone up or sedate them without their consent,
without that person having any kind of right to appeal or protest.
"This will improve care. The safeguards will flush out poor
care and prevent people from being deprived of liberty in a care
home or hospital unless it is absolutely necessary for their own
safety. It is absolutely right to provide an independent legal
framework so that vulnerable people are protected from potential abuse.
"This law will only be used as a last resort where it is
necessary to keep a person safe and all other options have been
exhausted. Protective care must be the exception and not the rule."
These safeguards mean that, if a hospital or care home wants to
deprive someone of their liberty to keep them safe from harm, they
must apply to the local health trust or council for permission.
This triggers a series of six assessments carried out by trained
assessors. These are:
* The deprivation of liberty is in the person's best
interests to protect them from harm and is a reasonable response
to the likelihood of the person suffering harm and the likely
seriousness of that harm.
* The person must be over 18.
*
The person must have a mental disorder.
* The person must not
be subject to a requirement of the Mental Health Act.
* The
person must lack the capacity to consent to their own care or
treatment.
* The authorisation must not conflict with an
advance decision made by the person; or valid decision made on the
person's behalf by a donee of a lasting power of attorney or
a deputy appointed for the person by the court.
Only if all these criteria are met will an authorisation be
granted. At any stage, the person or their representative will be
able to appeal against their deprivation of liberty to the Court
of Protection. In an emergency, the hospital or care home can
issue an urgent authorisation, for seven days, which speeds up the
normal process of authorisation.
It is expected that there may be around 21,000 applications in
the first year with around 25 per cent being authorised. So twenty
one thousand people are expected to benefit from the new
safeguards - both those whose applications are authorised and
those where there will be no authorisation. The overall benefit is
more safeguards for all with enhanced scrutiny of the care people
receive in care homes and hospitals.
The legislation was welcomed by the National Autistic Society,
the British Institute of Learning Disabilities (BILD) and Action
on Elder Abuse.
Mark Lever, National Autistic Society (NAS) Chief Executive said:
"Since a man with autism was deprived of his liberty against
his will in 1997, we have been campaigning, along with his carers,
to stop this kind of injustice from ever happening again. Autism
affects over half a million people in the UK and many are
prevented from enjoying the same rights and freedoms as the rest
of society due to a lack of awareness and understanding. These new
safeguards are a much needed step forward in protecting people
with autism from discrimination and ensuring those affected by
this complex disability have control over their own lives."
Keith Smith, Chief Executive of the British Institute of Learning
Disabilities said:
"The Deprivation of Liberty Safeguards are the way to give
people who lack capacity the special protection they need. The
British Institute of Learning Disabilities have been working with
the Department of Health on this project and welcome the launch of
the Safeguards as part of valuing and protecting the rights of
people with learning disabilities"
Gary Fitzgerald, Chief Executive of Action on Elder Abuse said:
"Action on Elder Abuse warmly welcomes the introduction of
the new safeguards. We believe that they will provide an essential
protection for many of the most vulnerable members of our society.
We have worked closely with a number of stakeholders in the run up
to this launch and look forward to continuing this work as the
impact of the safeguards becomes clearer"
"We hope that the new safeguards will herald a fresh debate
about the care we offer to adults with so called challenging
behaviour. The new safeguards and the principles of the Mental
Capacity Act should provide the basis by which services are
commissioned, purchased and provided."
Notes to Editors
The Mental Capacity Act Deprivation of Liberty Safeguards (MCA
DOLS) came into force on 1 April 2009.
They amend a breach of the European Convention on Human Rights
and provide for the lawful deprivation of liberty of those people
who lack capacity to consent to arrangements made for their care
or treatment in either hospitals or care homes, but who need to be
deprived of liberty in their own best interests, to protect them
from harm.
Primary Care Trusts (PCTs) and local authorities (designated as
'supervisory bodies' under the legislation) will have
statutory responsibility for operating and overseeing the MCA DOLS
whilst hospitals and care homes ('managing authorities')
will have responsibility for applying to the relevant PCT or local
authority for a Deprivation of Liberty authorisation.
For more information, please contact the Department of Health
Newsdesk on 020 7210 5221