The Deprivation of Liberty Safeguards were inserted in the Mental Capacity Act 2005 through the Mental Health Act 2007, and came into force in April 2009.
They were the government’s response to a 2004 European Court of Human Rights ruling, which found that a man with severe autism, HL, had been deprived of his right to liberty when he was admitted to Bournewood psychiatric hospital for four months in Surrey in July 1997 after becoming distressed at a day centre.
HL had not been detained under the Mental Health Act 1983, instead he was accommodated in his own “best interests” under the common law doctrine of ‘necessity’. The European court held that this doctrine was too arbitrary and lacked the safeguards provided to those sectioned under the Mental Health Act.
The Deprivation of Liberty Safeguards (DoLS) are designed to uphold the interests of people who lack the capacity to consent to the care and treatment they need. They apply in England and Wales.
The Best Interest Assessment (BIA) is one of the six tests that have to be applied to determine eligibility for the Deprivation of Liberty Safeguards. The BIA must ensure that the deprivation is in the best interests of the person concerned, necessary in order to prevent harm to them and a proportionate response to the likelihood of them suffering harm.
Social workers are often appointed to carry out best interests assessments, so long as they are not involved in the care planning process. If the best interest assessor concludes that a deprivation is the right thing to do, they must recommend a person to be the relevant person’s representative to speak up for them, which should often be a family member. If no family member is available, the supervisory body will appoint a representative. Anyone who does not have family or friends to speak up for them will have an Independent Mental Capacity Advocate (IMCA) appointed to act on their behalf. IMCAs were introduced in England and Wales under the Mental Capacity Act in 2007. SCIE have produced useful guides and examples An evidence review of access to independent advocacy was published in 2009. This is a lengthy document that concluded that there were benefits from the legislation but that more research was needed.
A personal view of independent advocacy.
I am the chair of trustees of an independent advocacy charity and as such closely involved in the work of the organisation. The experience that I have had regarding the benefits of BIA and independent advocacy are as follows:
- The Mental Capacity Act has been very helpful to some very vulnerable individuals. Hospitals particularly are keen to discharge patients as quickly as possible and often have deprived people of real choices, with the emphasis being on discharge to residential and nursing care because it is in the “Best Interest of the Patient”. Social workers have struggled against this prevailing “conservative view” of doctor (more often than not nurse and PAMs) for years and the BIA is a very useful tool for upholding the rights of the patient. The need for this has become increasingly prevalent with so much residential care being provided by the private sector. (It is hard for a private sector provider to encourage a resident to rehabilitate home, because they will lose a valuable client)
- Many people with a learning disability are victims or alleged perpetrators of anti-social behaviour. So many professionals seem to see the label “learning disability” first and then the person second. It can be extremely hard for a person without a learning disability to understand the system and get social justice. Materially improved outcomes have been achieved for people who have for years carried a negative label of “perpetrator” of anti-social behaviour (the fact that they are serial recipients of hate or mate crime is often not even spoken of). Some great work has been undertaken with the police and social care agencies to tackle the issues of hate and mate crime, but society has a huge way to go to reduce this problem
- The Independent Living Strategy, launched in March 2008, committed the Government to investigate the effectiveness and cost benefit of advocacy support for disabled people in situations where they are at particular risk of losing choice and control. In my experience some (of course not all) social workers have become too risk adverse in child safeguarding cases, particularly where the parent(s) have a learning disability. Having the support of an advocate can enable the family to be kept together and safely.
Conclusions
The implementation of MCA s is relatively new and certainly the first few years of the MCA has seen some strange referrals and misunderstandings of what are appropriate issues. However the introduction of the Act as part of the range of tools and legislation to ensure the rights of the most vulnerable people in society is welcomed. Social workers generally and BASW particularly were drivers of the need for the legislation and very involved in drafting of the legislation, subsequent guidance and pushing for correct implementation.
In my experience social workers are nearly always positive about the MCA and particular the need for BIA and Independent Advocacy
So my view is a big thumbs up!
Joe Godden (@GoddenJoe) is Professional Officer @BASW England and Trustee of an advocacy charity.
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