As part of their caseloads, community nurses are likely to have patients who are resident in care and nursing homes, and the nurse will be in contact with patients who are either explicitly or implicitly being deprived of their liberty. According to Griffith (2014), community nurses have an essential role in identifying situations where a patient's liberty is deprived, and to support home care staff to ensure the right steps are taken so that a thorough evaluation is completed to assess if this deprivation is lawful.
Deprivation of liberty – the term sounds as if it should belong to a totalitarian state; yet, depriving patients of their liberty has been used for 100s of years, especially when used to safeguard people who may be lacking sufficient mental capacity to be able to manage their own safety. However, there was no approved assessment required, and often deprivation of liberty was decided via a paternalistic approach. In other words, the doctor or the healthcare practitioner thought it was best for a person to be placed under constant supervision or be kept in a secure unit (for example, locks to the front entrance to a nursing home that could only be accessed by the staff). However, according to Series (2022), there was often no review; thus, a person could be deprived of their liberty for the rest of their life. The law in relation to deprivation of liberty changed with the ruling of the European Court of Human Rights (ECtHR) in the 2004 Bournewood case (HL v UK [2004]).
As with most significant case laws, the Bournewood case has a chequered history. The case first came to light in 1997. A man referred to as HL had autism, and following a GP visit HL was admitted to the Bournewood hospital. It was agreed that he lacked capacity to make decisions for himself, and HL was detained via the common law of necessity. HL's carers claimed that he was being unlawfully detained, and that his care could be easily given in a community setting. The High Court found in favour of the Bournewood hospital; however, the Court of Appeal overturned the High Court's judgements, stating that the informal admission into hospital was ‘unlawful’, despite HL's inability to consent for himself. The consequences of the Court of Appeal's judgment meant any patient who was incapable of consenting due to a lack of capacity, could only lawfully be deprived of their liberty (detained) via the more formal and statutory mechanism of the Mental Health Act 1983, which would allow for enhanced protection of their rights as well as regular reviews. However, this would have resulted in a significant increase in the number of detained patients. The case eventually went before the House of Lords, and their judgement found in favour of the hospital. The Lords found the detention of HL to be justified, without the need for HL to be placed under the auspices of the Mental Health Act.
The House of Lords ruling consequently meant that people with a lack of capacity could be detained without the same thoroughness and review expected when a patient was detained via the Mental Health Act, which led Lord Steyn to remark, ‘there can be no justification for not giving to complaint incapacitated patients the same quality and degree of protection as is given to patients admitted under the Act of 1983’. However, a 2002 Health Service Ombudsman report suggested that the hospital should not have detained HL, and a ruling made by the ECtHR supported this view, citing a breach of Article 5 (right to liberty) of the European Convention of Human Rights. The ECtHR did not dispute that HL had severe autism, but noted one of the key factors in deciding that his liberty has been deprived was the complete and effective control of HL's care by the healthcare professionals, and it was apparent to the court that if HL attempted to leave, he would have been prevented from doing so. What also struck the court was the lack of procedural rules with regard to patients with no capacity, and the lack of necessary safeguards in relation to compulsory committal. While the court did recognise HL's healthcare professionals acted in good faith, having procedural safeguards is necessary to protect patients from misjudgments and professional lapses. As a result of the ruling, the UK Government introduced Deprivation of Liberty Safeguards (DoLS) into UK law via amending the Mental Health Act 2007 to include DoLS as a part of the Mental Capacity Act 2005. While community nurses may have limited involvement with DoLS, they have a vital role in providing specialist nursing care to patients who are resident in a nursing home or care home, and some of these patients may fall into the remit of having their liberty deprived.
But what does this mean in practice? Patients cannot be deprived of their liberty without first undergoing an assessment by an appropriately qualified health/social care professional. For example, a community nurse visits a nursing home to provide care and treatment to a patient, and notices that while the patient seems content with the care she is receiving, she has to always ask staff permission to be able to enter the garden as the doors to the garden are locked. Would this be classed as a deprivation of liberty? Since 2014, in the cases of P v Cheshire West and Chester Council and P&Q v Surrey County Council [2014], even if the person is not protesting against their deprivation of liberty, and even if they appear content and comfortable in their surroundings, a DoLS assessment is still required. As Lady Hale in the UK Supreme Court stated in 2014, a gilded cage is still a cage. In the example provided, the patient is being deprived of their liberty, and would need to undergo a DoLS assessment to ensure that the deprivation is not too restrictive. In some cases, it may be more suitable to move the person to another home where a less restrictive environment is in place. Even unescorted leave can be in breach of Article 5 of the Human Rights Act, if such leave requires constant permission, and the time of leave is limited by the healthcare provider (Stankov v Bulgaria [2015]).
The DoLS assessment is initiated by the managing authority (Mughal and Richards, 2022) – the managing authority is usually the care home or hospital. The managing authority requests in writing to the supervisory body—which is normally the local authority the patient resides in—the reason for the request to deprive a person of their liberty. This is referred to as an application for a standard authorisation. The supervisory body commissions two independent assessors to assess the patient; one assessor is referred to as the best interest assessor and can be a community nurse who has undertaken the relevant training, while the other assessor is a mental health assessor and must be a medical practitioner suitably qualified to undertake the assessment. Failure to assess and authorise a DoLS can result in significant damages. In the case of the London Borough of Haringey v Emile [2020], £143 000 was awarded as damage for 7 years and 10 months of false imprisonment of a person with dementia residing in a care home, whose freedom had been compromised due to a lack of assessment and lack of consideration of less intrusive accommodation. There are six elements to the DoLS assessment:
- Age assessment
- Mental health assessment
- Eligibility assessment
- Mental capacity assessment
- No refusals assessment
- Best interest assessment.
Significantly, for a DoLS to apply, the person must be assessed as lacking mental capacity, that deprivation of liberty is actually in the patient's best interests, and to not automatically accept what the staff would think would be in the patient's best interests. In the case of JE v DE and Surrey County Council [2006], DE was unable to make decisions due to a lack of capacity with respect to his place of residence and the provisions for his social care. DE was in a long-standing relationship with JE. After DE's loss of capacity, allegations of abuse and neglect by JE to DE had been made by various parties. For example, JE placed DE onto the street wearing only his pyjamas with a request that other accommodation be found for him. Surrey County Council admitted DE into a residential home. While living at the residential home, DE frequently asked to be returned to live with JE. Due to his vulnerable status, Surrey County Council prevented this from happening, although they were willing to provide accommodation for DE in any other home as long as it was not with JE. However, Surrey County Council did not provide sufficient consideration to the position that it was in DE's best interests to return to live with JE. Therefore, the key issue for the judge was whether DE was ‘free to leave’. In this case, the judge decided that the council's facilitation of DE's right to live anywhere, with the exception of living with JE, resulted in the unlawful deprivation of DE's liberty. For the community nurse it is important to determine, through conversations with patients and staff, whether a patient is being prevented by staff from seeing family members, or is being prevented from returning home. If this is the case, the community nurse can request for a DoLS assessment to be undertaken or a review of the DoLS already in place to ensure it remains appropriate. Likewise, if a community nurse believes a patient to be under constant supervision from staff, a DoLS assessment is needed. This includes covert administration of medicines. In AG v BMBC & SNH [2016] the use of covert medication for a person living with dementia in a care home was determined by the courts as a deprivation of liberty.
The other assessments include an age assessment as a DoLS can only be applied to a person over the age of 18 years, and an eligibility assessment (for example a person who should be treated via the Mental Health Act 1983 would not be eligible for a DoLS). A significant aspect of DoLS is that a record is kept by the managing authority and the supervisory authority, and this has to be reviewed on a yearly basis or sooner if requested by a relative or another party, for example a community nurse. A patient who has no relatives or friends/carers will be provided with an independent mental capacity advocate to represent their interests during a DoLS assessment. Individuals including carers can challenge authorisations via the Court of Protection.
Nonetheless, DoLS is not without its flaws (Lennard, 2014). DoLS only applies at present to people living in care homes, nursing homes and hospital settings, but does not apply to people living at home/in the community. There is also a concern that if someone is not made subject to a DoLS, then alternative placements may be necessary to ensure liberty is not deprived. However, who will fund the additional costs that may occur? It will probably fall upon the supervisory body to fund extra money, and in the current economic climate this may be difficult to obtain. DoLS can also be a burden upon staff resources. There is still an issue around the number of best interest assessors required, as well as the necessary time to be given for all relevant parties to be released from current duties to undertake an assessment of an individual who may become subject to a DoLS. For many practitioners it may become easier or more appropriate to section a person under the Mental Health Act, rather than undergo a DoLS assessment.
To address some of the issues with DoLS, the government introduced Liberty Protection Safeguards (LPS) via the Mental Capacity (Amendment) Act 2019 which would extend safeguards to the domestic setting and will reduce the number of assessments to only three. Here, 16- and 17-year-olds would also be covered by an LPS. However, despite an intended implementation date of April 2022, the new safeguards are yet to be implemented, and are unlikely to replace DoLS during the lifetime of the current parliament. If LPS are to be implemented in the future (and there is no guarantee that this is the case), due to the addition of the domestic setting, there is scope for community nurses to have an enhanced role in the monitoring of LPS.