Practice Practice Pointer

Identifying and managing deprivation of liberty in adults in England and Wales

BMJ 2011; 342 doi: https://doi.org/10.1136/bmj.c7323 (Published 10 January 2011) Cite this as: BMJ 2011;342:c7323
  1. William J Cutter, consultant old age psychiatrist1,
  2. Karla Greenberg, consultant old age psychiatrist2,
  3. Timothy R J Nicholson, clinical research worker and honorary specialist registrar in general adult psychiatry3,
  4. Ruth Cairns, Chadburn lecturer in liaison psychiatry4
  1. 1Directorate of Older People’s Mental Health, Hampshire Partnership NHS Foundation Trust, Gosport PO13 0GY, UK
  2. 2Department of Older Persons’ Mental Health, Solent Healthcare, Langstone Centre, St James Hospital, Portsmouth, UK
  3. 3Section of Cognitive Neuropsychiatry, Department of Psychological Medicine, Institute of Psychiatry, King’s College London, London, UK
  4. 4Department of Psychological Medicine, Institute of Psychiatry, King’s College London
  1. Correspondence to: W J Cutter wjcutter{at}gmail.com
  • Accepted 1 November 2010

Clinicians are required by law to be able to identify and manage deprivation of liberty—this article explains how to do so

Summary points

  • Two pieces of legislation in England and Wales deal with deprivation of liberty in the hospital and care home: the deprivation of liberty safeguards and the Mental Health Act

  • The deprivation of liberty safeguards allow deprivation of liberty of people in hospitals or care homes who lack capacity to consent to physical or mental healthcare

  • The Mental Health Act (under some of its sections) allows the deprivation of liberty of people in hospital for the purposes of assessment or treatment of a mental (not physical) disorder

  • Where the purpose of detention in hospital is for the assessment or treatment of mental disorder and the patient objects to admission or treatment, use of the Mental Health Act should be considered before deprivation of liberty safeguards

  • The Mental Capacity Act allows restriction, but not deprivation of liberty

  • Decisions should be carefully considered and documented. Always consider whether care could be provided in a less restrictive way that could avoid the need for application of a legal framework

Why read this article?

In England and Wales, depriving an adult of their liberty without a legal framework in place is unlawful. In recent years, the law governing restriction and deprivation of liberty has undergone several important changes, which have resulted in more safeguards for adults lacking mental capacity when it comes to deciding on their place of accommodation. This new legislation has also considerably increased the complexity of the legal framework that clinicians have to engage with. Healthcare professionals have a legal duty to be aware of this legislation; claiming ignorance is not defensible. However, they will be protected from legal liability provided the guidance in the relevant code of practice is adhered to and decisions, including the reasons for them, are thoroughly documented.

The Mental Capacity Act 20051 came into force in October 2007. In April 2009 the Mental Capacity Act was amended by the deprivation of liberty safeguards2 in response to the issues raised by the Bournewood judgment (box 1).3 4 The amendment went through Parliament with the Mental Health Act 2007,5 which was itself revised at the same time. In some emergency situations not covered by the aforementioned laws, when patients have capacity to make decisions about accommodation, the common law may still apply. The application of these laws is complex and we discuss these complexities for the benefit of healthcare professionals.

Box 1 The Bournewood case and the European convention on human rights23

The Bournewood case involved a young man (HL) with autism and learning difficulties who was admitted informally (not under the Mental Health Act) in 1997 to a mental health unit following an episode of self harm. Requests from his carers for him to be discharged were refused and they were not allowed to visit him. The case went up to the European Court of Human Rights, where the judgment found that the admission constituted a deprivation of HL’s liberty that had not been in accordance with “a procedure prescribed by law.” Specifically this was in breach of article 5(1) of the European Convention on Human Rights, and also article 5(4), because HL had “no means of applying quickly to a court to see if the deprivation of liberty was lawful.” The European Court also said that “the key factor in the present case [is] that the healthcare professionals treating and managing the applicant exercised complete and effective control over his care and movements”. They found “the concrete situation was that the applicant was under continuous supervision and control and was not free to leave.”

Article 5 of the European convention on human rights (edited extract)
Right to liberty and security
  • 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: . . .

  • (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of un-sound mind, alcoholics or drug addicts or vagrants; . . .

  • 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

All doctors—particularly those who treat patients in hospital with dementia, learning difficulties, and brain injury, as well as GPs, physicians, and psychiatrists who treat residents of care homes—need to be able to identify patients who are at risk of deprivation of liberty and ensure that the correct legal framework is applied. Most do not, however, need to have a detailed knowledge of procedures beyond that point. We therefore suggest a practical approach to the identification and initial management of deprivation of liberty, and we direct readers to more detailed information and advice elsewhere. Readers need to understand the principles of the assessment of mental capacity and best interests, as set out in the Mental Capacity Act Code of Practice6 and as discussed in our previous review on assessing mental capacity.7

Methods

The primary sources for this article were the codes of practice for the Mental Capacity Act 2005,6 the deprivation of liberty safeguards2 and the Mental Health Act 2007.8 Further information was gleaned from a recent legal judgment on the Office of the Public Guardian website.9

What are “restriction” and “deprivation” of liberty?

Neither term is given an exact definition by the codes of practice,2 6 8 nor can they be; the definition will be different for every individual. Each person’s situation needs to be carefully considered using the guidelines set out in the codes of practice2 6 to conclude whether or not they are being deprived of their liberty. The deprivation of liberty safeguards code of practice2 gives examples of situations that may indicate that the threshold for deprivation of liberty has been crossed (box 2), however restriction of liberty is not so clearly defined; it involves a degree of restriction of an individual’s movements and freedom that falls below this threshold. For practical purposes, the distinction between restriction and deprivation in the context of the individual is crucial, because deprivation of liberty in the absence of “a procedure prescribed by law” is in breach of article 5 of the European Convention on Human Rights, whereas restriction of liberty is not. In other words, depriving someone of their liberty is illegal unless you have in place a legal framework authorising it.

Box 2: Indicators that deprivation of liberty may be occurring2

  • Professionals exercising complete and effective control over care and movement for a substantial period

  • Professionals exercising control over assessments, treatment, contacts, and residence

  • Decision taken by institution that a person will not be released into care of others or live elsewhere unless staff consider it appropriate

  • Use of restraint, including sedation, to admit a person who is resisting

  • The person would be stopped from leaving if they made a meaningful attempt to do so

  • Refusal of requests by carers for the person to be discharged to their care

  • Inability to maintain social contacts because of restrictions placed on access to others

  • Loss of autonomy owing to being under continuous supervision and control

Restriction and deprivation of liberty are “a matter of degree or intensity, not nature or substance.”2 There are no convenient measures that tell us when someone is being deprived of their liberty, such as the number of days for which they have been asking to leave a hospital or the number of times they have been restrained. Rather, it is the combined effect of all aspects of the care proposed or already being given for that particular individual that tell us if restriction or deprivation of liberty is occurring.

The deprivation of liberty safeguards code of practice2 suggests that the factors that provide the degree or intensity that result in deprivation of liberty can relate to:

  • The type of care being provided

  • How long the situation lasts

  • Its effects, or

  • The way in which a particular situation came about.

Guidance on the impact of specific interventions on a person’s liberty status

Although no precise definitions are available, we can take further guidance from the codes of practice where people lacking capacity are concerned.2 6

Restraint

Restraint is defined as occurring when a person uses force—or threatens to use force—to make someone do something that they are resisting, or to restrict a person’s freedom of movement, whether they are resisting or not.6 Restraint is permitted under the Mental Capacity Act provided it does not cause a deprivation of liberty. This situation may seem counterintuitive at first glance; however, the Mental Capacity Act tells us that restraint in many cases will only restrict someone’s liberty. The codes of practice2 6 advise that restraint must be necessary to prevent harm to a person who lacks capacity, and involve the minimum amount of force for the shortest time possible. Actions that are immediately necessary to prevent harm are unlikely to cause deprivation of liberty, but where repeated or prolonged restraint is required, then the boundary from restriction into deprivation of liberty is likely to be crossed at some point. For example, we feel that the nurses on a ward restraining someone with delirium for five minutes on one or two occasions to give intramuscular medication for the patient’s own safety suggests restriction of liberty. However security guards having to constantly sit with someone to prevent them leaving and having to restrain them for several thirty minute periods over 48 hours is very likely to indicate deprivation of liberty. In between there are many shades of grey, and the key is to examine the circumstances for that individual.

Although restraint may sometimes only constitute a restriction of liberty, we suggest that it is a strong indicator that someone is at risk of their liberty being deprived. As such, any restraint should prompt an urgent review (and subsequent regular re-review) of that person’s liberty status. Where restraint is causing deprivation of liberty, then applying a legal framework such as the Mental Health Act or the deprivation of liberty safeguards is mandatory. When restraining someone, in order to be protected from liability for prosecution, the person taking action must reasonably believe that restraint is necessary to prevent harm to the person who lacks capacity, and that it is a proportionate response to the likelihood and seriousness of harm. When restraining someone to protect others, the legal basis is initially provided by the common law, however where such restraint causes deprivation of liberty then assessment under the Mental Health Act is needed.6

Medical and nursing care

Medical and nursing care can be given to individuals without necessarily depriving them of their liberty.6

Emergency treatment

Short-lived actions immediately necessary to prevent harm and/or provide emergency treatment may not, in themselves, constitute a deprivation of liberty 2 10

Change of residence

A change of residence, even if someone is objecting, does not necessarily constitute a deprivation of liberty.6

Transport

Transporting someone to a hospital or care home will not usually amount to a deprivation of liberty,2 even where restraint is required or where there is an expectation that the person will be deprived of their liberty at the destination care home or hospital. Deprivation of liberty is likely to occur only when there are exceptional circumstances, such a particularly long journey, or more than restraint or persuasion are required to convey the person. In such cases an order from the Court of Protection will be needed.

Short lived illness

Holding a patient in hospital to treat short lived physical illnesses that are causing a disturbance in mental state that is likely to resolve in a few days with treatment (for example, delirium) is unlikely to constitute a deprivation of liberty.2 However, delirium that is not responding to treatment, or where the patient is being repeatedly restrained or prevented from leaving, represents a situation where the threshold for deprivation of liberty may be crossed and where the use of an appropriate legal framework should be considered.

It is important to realise that most factors could either give rise to no restriction, restriction, or deprivation of liberty; these states are on a continuum. For example, admission to hospital may lead to any or all of these states; patients can cross from one into the other and back again during an admission. So when a person lacking capacity willingly accepts admission to hospital, no restriction of liberty is occurring. However, as the admission progresses, they begin to occasionally ask to go home, but can be easily distracted and reassured; at this point, their liberty is restricted. Later on, they become agitated, and for a week persistently demand to go home, at times being aggressive in their attempts to leave and having to be restrained and prevented from doing so. At this point, a deprivation of liberty is occurring.

Furthermore, circumstances that might constitute deprivation of liberty for one person might only constitute restriction of liberty for another. An example of this is the action of locking the front door of a care home for people with dementia. For a resident who repeatedly asks to go home and spends much of his time by the front door waiting for an opportunity to escape, the locked door might represent a deprivation of liberty. However, for another who wanders around the home rattling on doors (including the front door) in a non-goal-directed way the locked door may represent only a restriction of liberty, since the door is locked primarily to prevent them coming to accidental harm.

Which laws are relevant to deprivation of liberty?

The differences between laws that relate to deprivation of liberty are outlined and interpreted in table 1.

Differences between Mental Capacity Act, deprivation of liberty safeguards, and Mental Health Act

View this table:

The Mental Health Act 2007

The Mental Health Act5 permits deprivation of liberty in hospital for people with mental disorder (regardless of whether they have mental capacity or not) under some of its sections. In the general hospital, the most commonly encountered will be sections 5(4) and 5(2) (holding powers allowing brief detention, but not treatment, in order to convene a Mental Health Act assessment), and sections 2 and 3 (longer periods of detention for the purposes of assessment or treatment). However, not all sections permit deprivation of liberty, particularly those applying to people in the community—for example, guardianship orders and community treatment orders, even though these can require a person to live at a certain place. If someone subject to one of these orders is being deprived of their liberty, then a deprivation of liberty authorisation can also be applied for and run concurrently.

The Mental Capacity Act 2005

The broader Mental Capacity Act1 deals only with people aged 16 or over who lack capacity. It permits restriction, but not deprivation, of liberty except for people placed under the deprivation of liberty safeguards (see below) or people subject to a Court of Protection order that allows the person’s deprivation of liberty.

The deprivation of liberty safeguards5 are used to authorise deprivation of liberty for those aged 18 or over who lack capacity to make decisions about care or treatment in hospital or a care home, when circumstances amounting to deprivation of liberty are required to provide this care. They do not apply to other settings, such as a person’s home. The proposed deprivation of liberty must be in the person’s best interests. For a more detailed account of the provisions, see the Code of Practice2 and Zigmond, 2009.4

Two types of deprivation of liberty authorisation exist2: urgent (lasting seven days) and standard (lasting up to a year). For the latter, the “managing authority” (the hospital trust or care home) must apply to a “supervisory body,” which is the primary care trust for hospital patients in England and the Welsh ministers or the local health board in Wales. For patients in care homes in both countries the supervisory body is the local authority. The supervisory body is responsible for commissioning six assessments to establish whether criteria for deprivation of liberty safeguards are met. When a placement is being considered for a currently hospitalised patient, and it is thought likely that this placement will result in deprivation of liberty, then a standard authorisation must be sought no more than 28 days in advance of the placement. In this instance the care home is the managing authority and must make the request.

Urgent authorisations are usually required in unforeseen circumstances where the need for deprivation of liberty is so urgent that it must start before the standard authorisation can be completed, for example where someone in hospital is already being deprived of their liberty. The managing authority itself grants an urgent authorisation and must only do so if they reasonably believe that the patient will meet criteria for a standard authorisation (which must be applied for at the same time).

Specific application forms exist and should be available in hospitals and care homes for both types of authorisation. Unlike the Mental Health Act, there is no requirement for the person making the application to be a doctor or to have undergone specific training. Applicants will find local arrangements in place for contacting the supervisory body to whom an application for a deprivation of liberty authorisation must be made. Authorisations for deprivation of liberty do not cover treatment, which remains under the wider provisions of the Mental Capacity Act.

The common law

In some emergency situations, the common law may still be applicable to the detention of people who have capacity, for example those being detained in the emergency department while a Mental Health Act assessment is convened. It may also apply to someone who lacks capacity, but requires emergency restraint or removal to prevent them harming others.6

How to identify deprivation of liberty

It is important to be vigilant for deprivation of liberty when assessing and treating patients, especially since the problem is not always obvious (box 2). Where this possibility is raised, we suggest a careful judgment must be made for each case following the guidelines contained within the deprivation of liberty safeguards shown in box 3 and using the indicators outlined in box 2. We maintain that it is good practice to arrive at this judgment at a multidisciplinary meeting that includes family and other people involved in the patient’s care, and it is vital to carefully document that the possibility of deprivation of liberty has been considered, including a summary of the arguments for and against, which factors apply to your patient, and why you have reached the conclusion that you have. Once deprivation of liberty is identified, action must be taken to apply the appropriate legal framework.

Box 3: Stages to go through to decide whether someone is being deprived of their liberty2

The decision-maker should consider:

  • All the circumstances of each and every case

  • What measures are being taken in relation to the individual? When are they required? For what period do they endure? What are the effects of any restraints or restrictions on the individual? Why are they necessary? What aim do they seek to meet?

  • What are the views of the relevant person, their family or carers? Do any of them object to the measures?

  • How are any restraints or restrictions implemented? Do any of the constraints on the individual’s personal freedom go beyond restraint or restriction to the extent that they constitute a deprivation of liberty?

  • Are there any less restrictive options for delivering care or treatment that avoid deprivation of liberty altogether?

  • Does the cumulative effect of all the restrictions imposed on the person amount to a deprivation of liberty, even if individually they would not?

Identifying deprivation of liberty is primarily the responsibility of the managing authority. We suggest that in hospital the healthcare professionals looking after patients are the key individuals fulfilling that function on behalf of the managing authority, the most senior clinician being responsible for the final decision. In care homes, the managing authority is the care home themselves. However, healthcare professionals who come in to care for residents have a responsibility (as would anyone) to report unauthorised deprivation of liberty to the managing authority, ask them to apply for a deprivation of liberty authorisation, or adjust care plans to reduce the restrictions on the person’s liberty. The managing authority must do this promptly, usually within 24 hours. Where the managing authority fails to do so, the concerned person can directly ask the supervisory body to investigate.

How to decide which legal framework applies to your situation

a) In hospital

The flowchart and table provide guidance on deciding which legal framework is appropriate for a patient who is being deprived of their liberty in hospital.

Figure1

What to do when you suspect that someone in hospital is being deprived of their liberty

In determining which legal framework is appropriate, the first question to ask is “does the patient have capacity to make decisions about admission for treatment or care?” If they have capacity then the only options available are either to allow the patient to do what they wish, or, if they have a mental disorder and meet the criteria for detention under the Mental Health Act, to rapidly convene a Mental Health Act assessment. Before legal means are used to deprive someone lacking capacity of their liberty, consideration should be given to whether care and treatment could be achieved in a less restrictive manner.6 For example, might a patient with dementia who becomes agitated in the evenings be more settled if family members sat with them during that period? In circumstances where patients are being restricted in their liberty only, the principles of the Mental Capacity Act apply.1 We suggest that patients should be reviewed regularly to assess whether the circumstances have changed.

Where a patient who lacks capacity is being, or is about to be deprived of their liberty, it must be determined whether the deprivation of liberty safeguards or the Mental Health Act is the more appropriate legal framework. This area is complex; consultation with an approved mental health professional or psychiatrist may be needed in uncertain cases, and an approved mental health professional is always required when the Mental Health Act is to be used. Recent case law has confirmed the primacy of the Mental Health Act over the deprivation of liberty safeguards9 11 and reinforced that the purpose of the detention (whether for mental or physical health treatment) is the key to distinguishing which legal framework to use. This judgment concluded that use of the Mental Health Act must be considered first and ruled out only if the person does not meet the criteria for detention. Only then can use of the deprivation of liberty safeguards be contemplated. In other words, if the Mental Health Act can be used, it should be used. Cases of deprivation of liberty in hospital should therefore be approached as follows:9 11

  • Identify what packages of physical and mental health care are to be given.

  • Determine whether the purpose of the admission relates wholly or partly to treatment of a mental health condition. In patients who lack capacity, the treatment may be complex and touch on both mental and physical health. The judgment suggests a “but for test” to help determine whether people fall within the scope of the Mental Health Act9 10; ask yourself “but for the physical health treatment, would this patient need to be detained in hospital.” If the answer is “no” and the only effective purpose of detention is to give physical health treatment, the Mental Health Act cannot be used and a deprivation of liberty authorisation application must be undertaken.

  • If the deprivation of liberty in hospital relates wholly or partly to treatment for a mental health condition, then ask yourself: is the patient objecting to the admission or the treatment, or both? Remember that objection can come in many forms; although verbal objections are the most obvious, the objection may be indicated by actions only. The need for restraint may well indicate an objection. If the answer to this question is “no” then proceed with applying for deprivation of liberty safeguards assessment. If they are objecting, then the Mental Health Act is likely to apply.

  • Is there someone holding a welfare power of attorney or court appointed deputyship for the person, and do their powers allow them to consent to the things the patient is objecting to? If so, and if they do consent, there is no need for detention under the Mental Health Act and an application for a deprivation of liberty authorisation should be made.

  • If the patient objects to admission, treatment, or both, and no power of attorney or deputy consents on the patient’s behalf, finally ask: does the patient meet the criteria to be detained under section 2 or 3 of the Mental Health Act? If so then a Mental Health Act assessment must be undertaken.

  • If a patient is not eligible for detention under the Mental Health Act, but deprivation of liberty remains necessary to give treatment for a mental health condition, the deprivation of liberty safeguards apply and an application for a deprivation of liberty safeguards authorisation must be made.

Another indicator that the Mental Health Act is the appropriate legal framework is when deprivation of liberty is required for the protection of other people; the Mental Capacity Act and deprivation of liberty of safeguards only provide protection for the individual lacking capacity themselves.

b) In a care home

In the care home setting, the Mental Health Act does not provide a route to legally deprive someone of their liberty. The only options therefore are to apply for a deprivation of liberty authorisation or, if the person requires transfer to hospital for treatment of a mental disorder, to arrange a Mental Health Act assessment.

It is vital to document which legal pathway you have decided to follow, why the decision was made, and how it is being pursued. We advise appointing regular dates to review the patient’s liberty, whether or not deprivation is currently occurring.

Vignette 1

An 81 year old man with no history of cognitive impairment is admitted with pneumonia. On the first night he is confused and agitated, saying that he is in a police station and demanding to leave. He requires restraint and sedation for his own safety. This also occurs the next night.

What power should be used here: Mental Capacity Act, Mental Health Act, or deprivation of liberty authorisation?

Answer—In view of the guidance in the deprivation of liberty safeguards code of practice,2 this is restriction of liberty and not a situation where a deprivation of liberty authorisation should be considered. The delirium is expected to resolve as the pneumonia improves, therefore there is no expectation that the criteria for a standard authorisation would be met. The broader Mental Capacity Act does cover situations such as these and also requires that the least restrictive option is followed. It would therefore be quite proper to manage the situation under the Mental Capacity Act, but to regularly review the person’s liberty.

After a further two days, the situation has worsened; the man requires a nurse to remain with him all the time to prevent him leaving and being physically aggressive to other patients. He is requiring restraint more frequently and for longer periods and is being given regular intramuscular sedative medication in an attempt to reduce his agitation.

Is he now being deprived of his liberty, and if so, which legal framework would authorise the detention?

Answer—The cumulative effect of all the restrictions placed upon him mean that the threshold has been crossed into deprivation of liberty because: the situation has not begun to resolve after a few days; he needs a nurse with him to stop him leaving; and prolonged and repeated restraint, together with intramuscular sedation is required. In this situation assessment under the Mental Health Act should be considered rather than deprivation of liberty safeguards because: he has a mental disorder (delirium); he is being detained in part for treatment of that mental disorder; he is objecting to remaining in hospital; he meets criteria for detention under the Mental Health Act, and; he is being deprived of his liberty in part to protect other people, and the deprivation of liberty safeguards do not provide a legal framework for depriving liberty in order to protect others.

He is detained under section 2 of the Mental Health Act. After two weeks he has settled to the point that the liaison psychiatrist discharges him from the section 2. As his pneumonia resolves, it becomes clear that he is left with severe cognitive impairment, and further investigation reveals a cerebrovascular accident. Occupational therapy assessment makes it clear that he is unsafe to return home, even with a full package of care. He is adamant that he won’t go into a residential home and repeatedly says he will go home when discharged as he can look after himself.

How might placement in a residential home be legally achieved?

Answer—Where it is thought likely (as in this case) that placement in the residential home will result in deprivation of liberty, the residential home will need to request a deprivation of liberty standard authorisation before the placement starts.

Vignette 2

Mrs Z, A 72 year old woman with moderate Alzheimer’s disease is a resident in a care home. She lacks capacity to decide on her place of residence. Her general practitioner visits her for a routine health check. While she is being examined, she tells the GP that she wants to go home, and asks him if he can help her escape. She then becomes tearful and pleads with him to take her home.

What should the GP do in this situation?

Answer—The GP should approach the care home manager to check whether the lady is under a deprivation of liberty authorisation. If she is not, then he should inform the manager that he is concerned this woman is being deprived of her liberty and that the home needs to review the situation. If they conclude that she is being deprived of her liberty, they either need to review and adjust her care plans in order to remove the deprivation of liberty, or they need to apply immediately for a deprivation of liberty authorisation.

The GP returns a week later to see another patient. The manager is not on duty, so he asks the deputy manager what the outcome of the situation with Mrs Z has been. The deputy manager says that no review of her care plans has taken place and no deprivation of liberty authorisation application has been made. The GP overhears Mrs Z asking a relative of another resident to take her home.

What should the GP do now?

Answer: He should approach the supervisory authority to inform them of his concerns that the patient is being illegally deprived of her liberty.

Vignette 3

A GP goes to see a 40 year old man with learning difficulties who has abdominal pain. He makes a diagnosis of acute appendicitis and arranges admission to the general hospital for an appendicectomy. When the ambulance arrives to take the patient into hospital for his operation, he adamantly refuses. The GP decides he lacks capacity to refuse hospital admission, as he cannot retain information regarding the operation and the risks of not having it for long enough to make the decision, and only will say “I don’t want to go to hospital.” Following discussion with the surgeons and the patient’s family, all agree that the operation is urgent and is in the best interests of the patient.

Is a deprivation of liberty authorisation required to legally transport him to hospital?

Answer—Transporting someone to hospital against their will does not usually constitute a deprivation of liberty. In this situation, the need for him to go to hospital is urgent and the GP and ambulance staff would be protected under the Mental Capacity Act if they need to restrain him and move him to hospital. Often, however, this kind of situation can be resolved without recourse to restraint—for example, if the patient’s particular fear can be understood, or if a close family member or carer can go with them to hospital.

Unfortunately, by the time he arrives in hospital his condition has deteriorated and he has developed peritonitis. He undergoes laparotomy and has a complicated and prolonged post-operative course. He is likely to have to remain in hospital for at least several more weeks. Despite the best efforts of his family he repeatedly says he wants to go home, although he is too weak to get out of bed and walk. He often tries to resist the care he is given.

Does he need to be detained under the Mental Health Act to receive care and treatment?

Answer: The Mental Health Act is not applicable, since the patient is being deprived of his liberty entirely for the purposes of physical health care and treatment. In view of the length of the admission, his stated desire to go home, and his resistance to care, it is very likely that he has become deprived of his liberty. Applications should therefore be made by the managing authority (the hospital) for both urgent (as he is already being deprived of his liberty) and standard deprivation of liberty authorisations.

Additional educational resources

General resources
In your trust or area
  • Local policies and guidelines

  • Senior colleagues and local leads for mental health and mental capacity issues

  • On call or local community or liaison psychiatrists

  • Duty approved mental health practitioner (formerly known as approved social worker)

  • Local Mental Health Act office

  • Hospital legal team

  • Local social services and/or primary care trust (they are likely to have an office set up to administer deprivation of liberty safeguards)

  • Your personal medical defence organisation

Notes

Cite this as: BMJ 2011;342:c7323

Footnotes

  • Contributors: WC had the idea for the article, wrote the first draft and collated changes from the other authors. KG, TN and RC all reworked the first and subsequent drafts, and provided comments throughout.

  • Competing interests: All authors have completed the Unified Competing Interest form at http://www.icmje.org/coi_disclosure.pdf (available on request from the corresponding author) and declare that all authors had: no financial support for the submitted work; no relationships with commercial entities that might have an interest in the submitted work; and no non-financial interests that may be relevant to the submitted work.

  • We thank Paul Barber for his helpful comments on the manuscript.

  • Provenance and peer review: Not commissioned, externally peer reviewed.

References

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