Spring House response to recent Deprivation of Liberty Safeguards Law Change
There have been some recent changes to the law of Deprivation of Liberty. The Care Quality Commission (CQC – our regulator) have issued guidance on the law change and how it should be interpreted.
Deprivation of Liberty is an aspect of the Mental Capacity Act which defines that if someone is prevented from doing something (e.g. leaving a home, having a bath, watching TV, leaving a bed, refusing medication etc) this is depriving that individual of their right to live a free life.
It is an important control that is in place to stop hospitals and care homes from abusing the trust placed in them when looking after vulnerable adults.
The interpretation of this law has always been difficult, with a past interpretation being that if the resident does not have capacity to make a decision then a best interest decision can be made on the residents behalf. As long as this decision was adequately documented and regularly reviewed this would not constitute that the residents liberty had been deprived.
However, on the 19th March the Supreme Court ruled on a case “P v Cheshire West and Chester Council” which qualified further when an individual may have their liberty deprived. In the ruling the justices stated that there are only two key questions: –
- Is the person subject to continuous supervision and control? Are care staff monitoring what the person is doing, recording of information, understanding their whereabouts etc?
- Is the person free to leave? The person may seem happy to stay, but the issue is about how staff would react if the person did try to leave.
Importantly the court ruled that the following factors are not relevant to whether or not someone is deprived of their liberty:
- the person’s compliance or happiness or lack of objection;
- the suitability or relative normality of the placement (after comparing the person’s circumstances with another person of similar age and condition); or
- the reason or purpose leading to a particular placement
This ruling and the clarification provided by the court means that Spring House has to take certain steps in order to make sure that we are not breaking the law when looking after residents at Spring House.
Fortunately, there is already in place a process that will enable us to legally help people who are no longer able to make certain decisions for themselves. This process is managed by the local authority, in our case Devon County Council, and it requires us to make an application for a Deprivation of Liberty for the resident in question.
Based on the above ruling, our own rules for determining if a resident requires a Deprivation of Liberty application is as follows: –
- Is the resident aware of what Spring House is, its purpose and why they have chosen to live here?
- Is the resident able to provide written consent to live at Spring House?
If the answer to either of these questions is No, then we must now make a “application for a Deprivation of Liberty” to Devon County Council.