1. Purpose
Sometimes the care a person needs at home includes restrictions: a worker present much of the day, controls on going out alone, sensors, or a locked door for safety. Where a person lacks the capacity to agree to those restrictions, they can add up to a deprivation of the person's liberty, which the law allows only when it is properly authorised. In a person's own home that authorisation does not come through the Deprivation of Liberty Safeguards, which apply only in care homes and hospitals, but through the Court of Protection. This policy sets out how the Service recognises a possible deprivation of liberty in someone's home and what it does about it.
The Service must verify this policy against the Mental Capacity Act, its Code of Practice and current case law before adoption.
2. Sources to verify before adoption
- Mental Capacity Act 2005: https://www.legislation.gov.uk/ukpga/2005/9/contents
- Mental Capacity Act Code of Practice: https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice
- The Court of Protection: https://www.gov.uk/courts-tribunals/court-of-protection
- The Supreme Court judgment commonly known as Cheshire West, which set the test for a deprivation of liberty (verify the current position, as case law in this area continues to develop)
3. Scope
This policy applies to:
- people the Service supports in their own home who may lack the capacity to agree to restrictions in their care
- care arrangements that restrict a person's freedom for their safety or wellbeing
- workers and senior staff who deliver, plan and review that care
4. The Mental Capacity Act in someone's own home
The Service follows the principles of the Mental Capacity Act in everything it does:
- a person is assumed to have capacity unless it is shown otherwise
- a person is given all practicable help to make their own decision before anyone concludes they cannot
- a person is allowed to make a decision others think unwise
- a decision made for a person who lacks capacity is made in their best interests
- that decision is the one that restricts the person's rights and freedom the least
Capacity is decision-specific: a person may be able to make some decisions and not others, and capacity can change over time.
5. What a deprivation of liberty means
A deprivation of liberty is not the same as ordinary care or a single restriction. The accepted test asks whether the person:
- is under continuous supervision and control, and
- is not free to leave,
and whether the person has the capacity to consent to those arrangements and is in fact consenting. Where a person lacks that capacity, is under continuous supervision and control, is not free to leave, and the arrangements are the responsibility of the state (for example care arranged or funded by a local authority), the arrangement may be a deprivation of liberty that needs authorising.
6. Why the Deprivation of Liberty Safeguards do not apply at home
The Deprivation of Liberty Safeguards authorise a deprivation of liberty only in a care home or a hospital. A person being cared for in their own home is in neither. So a deprivation of liberty in a person's own home cannot be authorised through the Safeguards. Instead it must be authorised by the Court of Protection. Using a Safeguards authorisation for a person at home would be wrong, and the Service does not rely on one.
7. Recognising a possible deprivation of liberty
Workers and senior staff stay alert to care arrangements that, taken together, may amount to a deprivation of a person's liberty, for example:
- a worker present for most or all of the day, controlling what the person does
- preventing the person from leaving the home, or only allowing it with a worker
- locking doors, or using sensors, alarms or other means to monitor or restrict movement
- restricting contact with other people
- giving medicine to calm or restrict the person
No single item decides it. The question is whether, overall, the person is under continuous supervision and control and is not free to leave, and whether they can and do consent.
8. What the Service does
The Service does not authorise a deprivation of liberty itself, and the application to the Court of Protection is usually made by the local authority that arranges or funds the care. The Service:
- raises a possible deprivation of liberty with the person's local authority or commissioner promptly, in writing
- supports any capacity assessment and best-interests process
- supports the local authority's application to the Court of Protection and follows any order the court makes
- never simply continues restrictive care without raising it
9. Advocacy and involving the person
The Service makes sure the person is at the centre of decisions about them. Where a person who lacks capacity has no family or friend able to represent them, the Service supports a referral for an independent advocate (an Independent Mental Capacity Advocate). The person's own wishes, feelings and views are sought and recorded whatever their capacity.
10. Keeping restrictions to the least needed, and reviewing them
The Service keeps any restriction to the least that keeps the person safe, and reviews it regularly. A restriction is removed as soon as it is no longer needed. The Service does not let a restriction continue out of habit.
11. Recording
For each person where this policy applies, the Service records the capacity assessments, the best-interests decisions, the restrictions in place and why, when a possible deprivation of liberty was raised with the local authority, and any Court of Protection order and review date.
12. Audit cadence
The Service checks, on a stated cadence, that:
- capacity assessments and best-interests decisions are recorded where restrictions are in place
- possible deprivations of liberty have been raised with the local authority and not left unaddressed
- any Court of Protection order is being followed and reviewed
- restrictions are the least needed and are reviewed, and advocacy is offered where the person has no one to represent them
The Registered Manager reviews the results and records the improvement actions that follow.