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Deprivation of liberty guidance welcomed by human rights lawyers

The CQC, Court of Protection and OFSTED publish guidance on the deprivation of liberty and the use of Deprivation of Liberty Safeguards

Children in residential children

21 February 2014

The Court of Protection and OFSTED have today issued guidance for providers of children’s homes and residential special schools relating to the deprivation of liberty under the Mental Capacity Act 2005. 

Human rights and education law partner Alison Millar welcomes today’s guidance which clarify that non-secure children’s homes or residential special schools are not entitled to deprive children of their liberty,  and that the Court of Protection should not therefore authorise a deprivation of liberty.

Alison said, “This is a helpful reminder that children’s homes and schools must not restrict the liberty of any child as a matter of routine.”

Today’s report follows the publication of the fourth annual report by the Care Quality Commission , Deprivation of Liberty Safeguards 2012/13 last month which revealed that many elderly and learning disabled people are being restrained and deprived of their freedom.

Alison Millar, assisted by solicitor Charlotte Skouby, is currently working on five cases that raise similar issues reflected in the CQC report and is shocked at the practices identified in the research which she says are depriving people of their legal rights. 

The Deprivation of Liberty Safeguards (DLS) set out how people without capacity such as elderly people with dementia, or people with learning difficulties, should be treated under the Mental Capacity Act.

Staff who are caring for people without capacity are called the managing authority and are required to report to their local council or health trust (the supervisory board) the fact that they believe an individual needs Deprivation of Liberty Safeguards.

The supervisory board must then make sure at least two people, one of whom is called the Best Interests Assessor, assess the individual to see if the person needs a DLS, and how long this should last. 

What is a deprivation of liberty?

A deprivation of liberty could include:
 
  • Health and care staff having control over all the decisions in a person’s life
  • Not being allowed to leave a care home or hospital
  • Not being allowed to see friends and relatives

In its latest report the CQC found that
 
  • people in care homes and hospitals are being restrained and deprived of their liberty without legal protection.
  • there has been a significant increase in the number of applications for the use of the safeguards of people aged over 85.
  • Some 60% of care homes and hospitals are failing to notify the CQC of the outcome of their application to use the safeguards.

Alison is currently representing a client who alleges that he suffered about at Veilstone care home, including the alleged use of a punishment room.  

She is acting for a client with learning difficulties who she is instructed was not allowed to take part in community activities because of ‘bad behaviour’, and suffered unexplained severe injuries in a care home.

Another learning disabled client was the subject of excessive isolation and restraint, and was exposed to other service users with significant and distressing behavioural problems, and he was kept in an inappropriate placement for an unreasonably long time. 

Alison also acts for a pupil with behavioural issues who was confined in a ‘quiet room’.

Alison says:

“The deprivation of a person’s liberty is a serious step which should not be taken lightly by those who have the authority to do so.

“In the cases we are handling we see that a common theme seems to be that there is an insufficient level of staffing, or a lack of staff training which means that confinement or restraint is being used by staff to control or contain behaviour.

“Individuals with learning difficulties can exhibit challenging behaviour but the use of restraint rarely leads to a good long-term outcome and can instead set off a spiral of escalating behaviour.

“Health and care home staff, staff in children’s home, and education staff working with special needs pupils must be trained and made aware that the dignity of vulnerable people must be preserved, even if their behaviour can be challenging. 

“The shocking revelations of abuse and neglect at Winterbourne View hospital demonstrate how important it is that the CQC continue to monitor the Deprivation of Liberty Safeguards.”

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