Mired in confusion: making sense of the Deprivation of Liberty Safeguards

Abstract

There is uncertainty about how to identify deprivation of liberty and the interface of the Mental Health Act and Mental Capacity Act Safeguards. OBJECTIVE To increase current understanding by exploring how an expert legal panel interpret existing case law relating to deprivation of liberty in the clinical setting. Design Clinical vignettes of real patients were used to explore lawyers' thinking about important factors that: (1) distinguish lawful restriction from deprivation of liberty and (2) govern the choice between safeguard regimes when there is deprivation of liberty. The relative importance of such factors was discussed in a consensus meeting using a modified nominal group approach. Participants and setting Six eminent barristers and solicitors with expertise in mental health law attended a consensus meeting after making individual judgements about vignettes describing the situations of 28 incapacitated patients who had been admitted informally to a range of psychiatric inpatient units in South East London. Lawyers attributed key importance to a patient's 'freedom to leave' and suggested that patients' subjective experiences should be considered when identifying deprivation of liberty. CONCLUSIONS Clarification of deprivation of liberty and its safeguards will develop with future case law. Based on current available case law, the lawyers' expert views represented a divergence from Code of Practice guidance. We suggest that clinicians give consideration to this.