New law comes into force to strengthen protection of vulnerable people
1 April 2009
Some of the most vulnerable people in society will be better protected against abuse and poor care as a result of new legislation coming into force today.
People who lack capacity in hospitals and care homes will now be protected by a new law known as the 'Mental Capacity Act Deprivation of Liberty Safeguards'.
The new law introduces new safeguards, so that, if a care home or hospital needs to deprive someone of their liberty for their own safety or wellbeing, they must now apply for permission. The law only applies to people in care home and hospital settings who are unable to make decisions on their own care or treatment and who need to be deprived of their liberty in their own best interests to protect them from harm.
The new safeguards only make it lawful for a person to be deprived of their liberty, based on a rigorous, standardised assessment and authorisation process. It gives people the right to challenge any decision to deprive them of liberty, a representative to act for them and protect their interests and the right to have their status reviewed and monitored on a regular basis.
Care Services Minister Phil Hope said:
"Vulnerable people will now have rights where previously they had none. Before this law came in, care homes or hospitals were able to lock someone up or sedate them without their consent, without that person having any kind of right to appeal or protest.
"This will improve care. The safeguards will flush out poor care and prevent people from being deprived of liberty in a care home or hospital unless it is absolutely necessary for their own safety. It is absolutely right to provide an independent legal framework so that vulnerable people are protected from potential abuse.
"This law will only be used as a last resort where it is necessary to keep a person safe and all other options have been exhausted. Protective care must be the exception and not the rule."
These safeguards mean that, if a hospital or care home wants to deprive someone of their liberty to keep them safe from harm, they must apply to the local health trust or council for permission. This triggers a series of six assessments carried out by trained assessors. These are:
* The deprivation of liberty is in the person's best interests to protect them from harm and is a reasonable response to the likelihood of the person suffering harm and the likely seriousness of that harm.
* The person must be over 18.
* The person must have a mental disorder.
* The person must not be subject to a requirement of the Mental Health Act.
* The person must lack the capacity to consent to their own care or treatment.
* The authorisation must not conflict with an advance decision made by the person; or valid decision made on the person's behalf by a donee of a lasting power of attorney or a deputy appointed for the person by the court.
Only if all these criteria are met will an authorisation be granted. At any stage, the person or their representative will be able to appeal against their deprivation of liberty to the Court of Protection. In an emergency, the hospital or care home can issue an urgent authorisation, for seven days, which speeds up the normal process of authorisation.
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