Sometimes, best interests decisions about care or treatment for someone who lacks capacity to make those decisions for themselves can involve restraint.
Restraint can be lawful under the MCA if it is not only in the best interests of the person who lacks capacity for the relevant decisions, but it is also necessary to prevent harm and is proportionate to the likelihood and seriousness of that harm.
As interventions become more restrictive, it may be that they amount to a deprivation of the person’s liberty. When this occurs, they cannot be made lawful by the MCA alone but need a separate legal process to authorise this in order to comply with the person’s rights under Article 5 of the European Convention of Human Rights.
The case law defines a deprivation of liberty as having three parts:
- The person is confined to a limited place for a substantial period of time;
- There is no valid consent to this; and
- It is the responsibility of the state (directly or indirectly – so anything that involves care by a CQC registered provider, or delivery or commissioning by a local authority or NHS body will meet this criterion).
The question of whether someone is “confined” is interpreted to mean that they are “under continuous supervision and control and not free to leave”. That can mean different things for younger children in particular as the restrictions they are under may be compared to what is normal for a child of that age. The test of confinement for a 16-17 year old is likely to be much the same as for an adult.
Usually, the absence of consent is established where the patient lacks capacity to make the relevant decisions for themselves; no capacity means no consent. But there is a question for some patients whether there might be consent given by someone on their behalf that means that there is no deprivation of liberty, however restrictive their situation.
In law, there is no power for an LPA or Deputy, to consent to any deprivation of liberty.
The position for parents / children is more complex. For a child under 16, a parent (ie someone with parental responsibility for them) may be able to consent to restrictions that would otherwise be considered a deprivation of their liberty, so long as giving consent to the situation falls within the ‘zone of parental responsibility’ – i.e. it is a decision that a parent can reasonably be expected to make. If there is any doubt about that, it may be worth referring to the local social services authority, who may in turn seek confirmation from the court.
Reliance on parental consent may not be possible for a child who is under a Care Order, and the law is not yet clear on whether a local authority with a care order that gives it parental responsibility can itself then consent to what would otherwise be arrangements that amount to a deprivation of liberty, so it is best to get legal advice in that situation.
However, a Supreme Court Judgment in 2019 made clear that when a child turns 16 it is no longer acceptable to rely on a parent’s consent to avoid what would otherwise be seen as a deprivation of the child’s liberty. Because the Deprivation of Liberty Safeguards only apply to people over the age of 18, if there may be a deprivation of liberty for a 16-17 year old, this can only be made lawful by a court order, which could be in the High Court or the Court of Protection.
Where there is a potential deprivation of liberty of someone over the age of 18 in a care home or hospital, the Deprivation of Liberty Safeguards (DOLS) can be used to provide external scrutiny and, if appropriate, authorisation, by the local authority subject to regular review, meeting the person’s ECHR Article 5 rights. In other settings, including the patient’s own home, if the care package amounts to a deprivation of liberty for a patient who lacks capacity to consent to it then this can only be authorised by the court.
Alternatively, the MCA allows for a person to appoint someone to make decisions on their behalf in future (a Lasting Power of Attorney, or LPA), and this can apply to decisions about property & finances, or health & welfare, or both. Again, there are some formal requirements, and it is a good idea to take legal advice. This is for someone who has capacity now to appoint an LPA, to identify a person who they want to be the best interests decision maker after they lose capacity. But that Attorney will still be bound by the MCA – ie they can only make a decision in the person’s best interests, and under the same duties of consultation with others.
In many cases, of course, a person may have already lost, or never had, capacity to make an LPA or an Advance Decision to Refuse Treatment, and so these options are not possible. In that case, the Court of Protection has power to appoint a “Deputy” as a best interests decision maker, either for property & finances, or for health & welfare. Again, any Deputy is limited by the requirements of the MCA and it is relatively unusual for the Court to appoint a Deputy for health and welfare decisions, including serious medical treatment, as it expects these in any event to be taken collaboratively by the clinicians and the family and others engaged in caring for the patient or interested in their welfare, with any serious dispute to be referred to Court.
