1. The planning tool

1.1 The tool is intended to assist organisations to estimate the number of assessments that may be
needed across their areas in the first year of the operation of the safeguards, between April 2009 and March 2010.

1.2 Ideally the tool will be used by local Mental Capacity Act implementation networks (of which there are
150 in England) as part of planning and preparation with all affected health and social care partners.
It could be used in isolation by either councils with social services responsibilities or primary care
trusts (or other organisations) but given the need for them to work together, not just with each other
but also with care homes and hospitals, to successfully deliver the safeguards it will be more
beneficial to use the tool as part of a collective exercise.

2. What are the Deprivation of Liberty Safeguards?

2.1 A briefing sheet describing the safeguards is available at:
http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_080718

2.2 Based on existing case law, the following factors have been considered by the courts to be relevant
when considering whether a deprivation of liberty is occurring:

• The person is not allowed to leave the facility.
• The person has no, or very limited, choice about their life within the care home or hospital.

• The person is prevented from maintaining contact with the world outside the care home or hospital.

2.3 The person is not allowed to leave the facility

2.3.1 Whilst it would not, in itself, be determinative, that fact that a person is, or would be, prevented from
leaving the facility at all, whether by distraction, locked doors or restraint, or because they are led to
believe that they would be prevented from leaving if they tried, that would be a relevant factor in
considering whether or not there is deprivation of liberty.
2.3.2 A person is not deprived of their liberty simply because they lack the physical ability to leave, or the
mental capacity to form a genuine intention to leave. But someone who lacks either physical ability
or mental capacity in these terms and whose behaviour does not indicate a wish to leave could
still be deprived of their liberty if:
• Family, friends or carers, who might reasonably expect to take decisions under the Mental Capacity Act
2005 in relation to the person, are prevented from moving them to another care setting or from taking
them out at all
• Taking account of the limitations of their condition, the person in care is not given reasonable
opportunity to go outside of the home or hospital (escorted or otherwise) even though it would be
possible for them to do so and it seems likely that they would enjoy it, it would reduce their distress or
anxiety, or it would be beneficial in some other way,
or
• A decision has already been taken to prevent the person from leaving.

2.4 The person has no, or very limited, choice about their life within the care home or hospital

2.4.1 Deprivation of liberty can arise when a person is not allowed to make any choices at all about issues such as:

• Where they can be within the care home or hospital
• What they can do
• Who they can associate with, or
• When and what they can eat.
This could equally apply if choices were available but the care given to the person did not enable them to make any choices.

2.4.2
If a person is not allowed any freedom of movement within the care home or hospital, for example if
they are not allowed to leave their room for long periods of time, they are probably deprived of their
liberty. Similarly, controlling a person’s behaviour and movement through regular use of medication
or seating from which a person cannot get up may constitute deprivation of liberty

. 2.4.3 Restrictions that are unavoidable in a group living situation, and which apply to all residents, would
be unlikely in themselves to constitute a deprivation of liberty but this would depend on the context
and the extent of other restrictions imposed on the person concerned.

2.5 The person is prevented from maintaining contact with the world outside the care home or hospital

2.5.1 Deprivation of liberty may occur if restrictions are placed on who the person in the care home may
contact, who may visit them or when they can use the telephone. This does not in general apply to
proportionate restrictions for the benefit of the running of the unit and the other patients/residents,
such as general restrictions on early morning or late evening visits, or on numbers of visitors at any one time.

2.5.2 However, if the effect of these restrictions would be to cut the particular individual off from people
with whom they would otherwise keep in contact, this may be deemed to be a deprivation of liberty.
For example, if someone’s family or friends are realistically only ever able to visit late in the evening,
then restrictions on visiting times could cut them off from their family and so lead to a decision that they are being deprived of their liberty.

2.6 Restraint

2.6.1 Restraint may lawfully be used on admission or to administer treatment or care under section 6
of the Mental Capacity Act. If this is necessary, it should be seen as an indicator that a person’s
wishes may be being over-ridden.
Therefore, in these circumstances, the managing authority
should consider whether the person is being deprived of their liberty (in which case they are doing
more than restraining the person and authorisation is needed.

2.6.2 In the case of a person in, or being considered for admission to, hospital for mental health
treatment, the need for restraint is likely to indicate that they are objecting to treatment or to being
in hospital. A person who objects to mental health treatment, and who meets the criteria for detention under the Mental Health Act 1983, is ineligible for an authorisation under the deprivation of liberty safeguards.
If it is necessary to detain them, use of the Mental Health Act 1983 should be considered.

3. The Regulatory Impact Assessment

3.1 The Regulatory Impact Assessment estimated that there would be approximately 20,000
assessments in England between April 2009 and March 2010. That document can be accessed at:
http://www.dh.gov.uk/en/Publicationsandstatistics/Legislation/Regulatoryimpactassessment/DH_076477

3.2 In order to determine an implementation network area’s own share of the Government’s estimated
number each area will want to carry out its local impact assessment. This will establish an estimated
number of deprivation of liberty assessments that supervisory bodies will be required to co-ordinate in each area in 2009 / 10.

4. The draft Code of Practice and draft assessor and draft representative regulations

4.1 The draft Code of Practice and draft assessor and draft representative regulations
can all be accessed at http://www.dh.gov.uk/en/Consultations/Closedconsultations/DH_078052

5. Training 5.1 Further information will follow in the coming months re the arrangements for the training of mental
health and best interests assessors and IMCAs.

6. Range of required assessors 6.1 Assessors will need to be selected on the basis that they have the necessary skills, experience and training.
Supervisory bodies, having used this tool and achieved an estimate of required WTE assessors will also need to consider that they have available a range of assessors to assess
e.g. people with dementia, or a learning disability, or a brain injury.
Only a minority of assessors are likely to have the necessary skills
and experience to be able to assess all cases and factor that, additionally, into their calculations.

7. Local arrangements to deliver the safeguards

7.1 The DH Deprivation of Liberty Safeguards programme and the Care Services Improvement
Partnership (CSIP) regional leads will continue to provide information and guidance to support the
development of local arrangements to successfully deliver the safeguards from April 2009.

For further information contact:

Paul Gantley
Implementation Manager Mental Capacity Act
Care Services Improvement Partnership
Department of Health
Room 118