Care vs control: the Mental Capacity Act and deprivation of liberty

deprivation of libertyOriginal Image by JohnHain licensed under Creative Commons

In a time where our Human Rights are being politicised and reviewed there are far reaching consequences of any changes. An example of this is its application to those who suffer mental health issues. Article 5 of the Human Rights Act states that ‘everyone has the right to liberty and security of person. No one shall be deprived of his or her liberty [unless] in accordance with a procedure prescribed in law’. But what happens if a person is a danger to themselves or others? How can society ensure we honour their human rights whilst protecting them from harm?

We recently had an enquiry from a member about the Mental Capacity Act. They wanted to understand how the act and, specifically, the deprivation of liberty safeguards would affect their service users. Taking away someone’s right to liberty is a very real dilemma facing service providers who are dealing with safeguarding decisions at the sacrifice of a human right. These safeguards have been put in place to help deal with that situation, give clear guidance and ensure that liberty is protected.

The Social Care Institute for Excellence presents the following key messages in relation to the safeguards:

  • The Deprivation of Liberty Safeguards are an amendment to the Mental Capacity Act 2005. They apply in England and Wales only.
  • The Mental Capacity Act allows restraint and restrictions to be used – but only if they are in a person’s best interests.
  • Extra safeguards are needed if the restrictions and restraint used will deprive a person of their liberty. These are called the Deprivation of Liberty Safeguards.
  • The Deprivation of Liberty Safeguards can only be used if the person will be deprived of their liberty in a care home or hospital. In other settings the Court of Protection can authorise a deprivation of liberty.
  • Care homes or hospitals must ask a local authority if they can deprive a person of their liberty. This is called requesting a standard authorisation.
  • There are six assessments which have to take place before a standard authorisation can be given.
  • If a standard authorisation is given, one key safeguard is that the person has someone appointed with legal powers to represent them. This is called the relevant person’s representative and will usually be a family member or friend.
  • Other safeguards include rights to challenge authorisations in the Court of Protection, and access to Independent Mental Capacity Advocates (IMCAs).

We found that most of the published research into the Mental Capacity Act so far has, in fact, concentrated on the impact it has had in terms of issues around capacity to consent, through the Deprivation of Liberty Safeguards introduced as part of the Act.

In March 2014 the Supreme Court identified an ‘acid test’ to understand whether people were being deprived of their liberty. This, and the quantity of research being developed around this area, highlights the difficulty in ensuring that our liberties are safeguarded: each case must be individually assessed and an informed decision made, which make the safeguards vital in the appropriate treatment of vulnerable individuals.

The results of our research for our member highlighted the use of case studies in this area, especially those which highlight best practice and the individual approach. Research looked at the impact of the MCA on service users in general terms, as well as on particular groups, including people with learning disabilities, those living in residential care, and young people. After reviewing the evidence, some of the most appropriate examples we shared with our member included:

The Idox Information Service can give you access to further information on act and provides a range of resources for social services departments, more information can be found on our website here.

To access services such as ask a researcher or find out more on how to become a member contact us here.

The way forward for mental health services for children and young people

Black and white photo of young girl.

Image courtesy of Flickr user darcyadelaide using a Creative Commons license

By Steven McGinty

“Not fit for purpose” and “stuck in the dark ages”

These are two of the phrases used by the Care Minister, Norman Lamb, to describe mental health services for children and young people in England. The minister admitted that young people are being let down by the current system and has announced that a new taskforce will look into how the system should be improved.  To coincide with this review, I decided to look at the current situation for children and young people with mental illness, as well as highlight some of the main themes from the latest evidence.

The Office for National Statistics (ONS) reports that one in ten children and young people (aged 5-16) have a clinically diagnosed mental health disorder. This covers a broad range of disorders, including emotional disorders, such as anxiety and depression, as well as less common disorders such as autism spectrum disorders (ASD) and eating disorders. Approximately 2% of these young people will have more than one mental disorder. The most common combinations of disorders are conduct and emotional disorders and conduct and hyperkinetic disorders.

The likelihood of a young person developing a mental disorder is increased depending on a number of individual and family/ social factors. There are a whole range of risk factors, but some of these include:

  • having a parent in prison
  • experiencing abuse or neglect
  • having a parent with a mental health condition
  • having an autistic spectrum disorder (ASD)

It’s important to note that mental illness is complex, and that not everyone in these risk groups will struggle with it. This is particularly true when a young person is in receipt of consistent long-term support from at least one adult.

The impact of mental illness can be particularly difficult for young people. For instance, the National Child and Adolescent Mental Health Service (CAMHS) Support Service reported that young people who suffer from anxiety in childhood are 3.5 times more likely to suffer from depression or anxiety in adulthood. There is also an increased chance of young people coming into contact with the criminal justice system, with Young et al highlighting that 43% of young people in prison have attention deficit hyperactivity disorder (ADHD). The Centre for Mental Health also suggests that young people with mental health problems struggle to achieve academically, as well as in the employment market.

When a government minister condemns his own department, it’s evident that there are severe problems.  However, this does not have to be the case.

Below I’ve outlined some of the key lessons to come from evidence on what makes a good mental health service for children and young people.

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Three options DWP should explore in supporting those with poor mental health into work

Traffic cone with the text "works in progress".

By Steven McGinty

Last week, the UK government announced a new pilot scheme to support those with mental illness back into work. While similar to other government initiatives, this scheme has the unique selling point of offering treatment at an earlier stage, alongside employment support.

Like many of the government’s return to work policies, this might prove to be controversial. Many have expressed concerns over a comment from the Department for Work and Pensions (DWP) that suggests that counselling could become mandatory for those claiming benefits.  One of the most notable individuals to question this policy is Tom Pollard, Campaign and Policy Manager at Mind. He suggests that,

“If people are not getting access to the support they need, the government should address levels of funding for mental health services rather than putting even more pressure on those supported by benefits and not currently well enough to work.”

Although this pilot scheme has caused some heated debate, this is just one of the many ideas available to the government. Others include:

Aim High Routeback (Easington Pilot), County Durham

This pilot scheme was launched in 2005, as part of the Northern Way pilots, and was said to take a ‘health-first’ approach. The scheme was based in an NHS Primary Care Trust building, with participants focusing on the practical management of their health conditions, and employment only being discussed once individuals had started to make progress with their health. The project reported an above average return to work rate, in comparison with the other pilots. Interestingly, one of the key findings of the study was that participants were more likely to return to work if they felt like their health was ‘good or improving’.


This model was developed in the US and involves the use of peer led groups. The idea is that these groups can be used to support those with mental health problems back into employment, as well as prevent the negative health impacts which can arise from unemployment. The programme works on improving the jobseekers’ ability to search for work, as well as to cope with the setbacks of finding employment. The model has been found to be successful and has recently been recommended by the Department for Work and Pensions.


This is a measure for assessing patients that was piloted by a community mental health team in Oxfordshire. The pilot involved asking new patients to fill in a 10 minute survey. This survey allowed medical staff to better assess the support needs of patients, as well as to identify their strengths and weaknesses. The staff were then able to offer more targeted referrals and interventions. For example, the use of cognitive behavioural therapy (CBT) or the tailoring of a patient’s medication. The pilot reported that this approach led to an improvement in outcomes for patients.

This is just a small sample of the research on improving the employment prospects of those with mental illness.

At Idox, our database contains all the research highlighted. We also provide an enquiry service, allowing members to receive the support of information professionals, as well as save time on their research.

Further reading (you may need to be a member to view some of these articles):