What is Deprivation of Liberty?

Blog What is Deprivation of Liberty?

18.12.17

In our previous blog, we discussed the Mental Capacity Act 2005 (MCA) and the issue of decision making on behalf of someone who may lack mental capacity to make decisions for themselves.

Some of the biggest decisions that need to be made concern where a person lives, how they are cared for and any treatment they may need.

It is a key principle of the MCA that any decisions taken on behalf of another person must be made in their best interests. It is also important that the least restrictive option is taken when making any decision. However, in order to keep a person safe or ensure they receive the right care or treatment, it may be necessary to restrict what they are allowed to do.

Deprivation of Liberty – what you need to know

In this blog we are going to highlight the key principles of a complex, but important part of decision-making, that can lead to a ‘deprivation of liberty’.

We have written the piece to help families understand what they may need to know if an adult child or loved one’s circumstances mean that may fall under the protection of the MCA’s Deprivation of Liberty Safeguards (DoLS).

What is a Deprivation of Liberty?

It isn’t always easy to identify when a person has been deprived of their liberty and there is no clear definition. A Supreme Court case in 2014 set out a test to determine this and stated that a person can be deprived of their liberty if they are placed under continuous supervision and control and they are not free to leave. But it is not that simple or indeed obvious.

Each case has to be considered separately and all the facts taken into account. Some restrictions such as physically restraining a person may be obvious but in some cases people may have a number of smaller restrictions placed on them which could, together, amount to a deprivation of their liberty. For example, they must always be accompanied when they leave the care home, they have restricted contact with certain people or they are not allowed to have certain items due to a risk of harm.

It isn’t always necessary for there to be signs that the person would want to leave or not be under supervision. There must be consideration about what a person would do or how they would react if they did want to leave.

A practical example:

Jake has autism and lives in a residential care home. He has no awareness of risk and is particularly vulnerable when he is out near roads as he can run off. Staff at his home have to constantly supervise him when he is out or, if he tries to leave the home, they must prevent him from leaving and have to keep the door locked. These are necessary measures for his own safety and have been made in his best interests. However, the conditions deprive Jake of his liberty and so an application must be made for authorisation.

Who may be deprived of their liberty?

Although anyone can be deprived of their liberty, the DoLS only apply to a person who has been assessed as lacking mental capacity to validly consent to the deprivation of liberty.

Deprivation of liberty applies to people who are a responsibility of the State. which means it generally applies to people in hospital or those living in a care home.

If the person is over 18, and in a care home or hospital, then the DoLS will be relevant and the process is set out below. For those residing elsewhere, authorisation from the Court of Protection will be required.

If the person is aged 16 to 18 then the Court of Protection will need to authorise a deprivation of liberty.

For children under the age of 16, the process is different and may involve an application to the High Court.

A practical example:

Jo has been admitted to hospital for a routine simple procedure. Jo has moderate learning difficulties and anxiety and she has been assessed as lacking capacity to make decisions about this procedure. The consultant has advised Jo’s mother that the procedure is necessary and in Jo’s best interests but is proposing that Jo is sedated during the procedure and for a period afterwards to minimise her anxiety and to prevent her from harming herself or others around her. The hospital makes an application under the DoLS scheme for the use of sedation to be granted as this amounts to a deprivation of Jo’s liberty.

How can a Deprivation of Liberty be authorised?

The DoLS is the statutory scheme of authorising a deprivation of liberty and prevents a person having their freedom deprived unlawfully. For a standard authorisation, the managing authority (the care home or hospital) must apply to the supervisory authority (usually the Local Authority) for authorisation when they believe a deprivation of liberty might occur, usually within the next 28 days. This must be done before the person moves into a home or is taken into hospital.

The supervisory authority has to decide, within 21 days, whether the person can be deprived of their liberty. They will appoint at least two assessors to see if the conditions are met. They will conduct the following assessments:

Age assessment – the person must be 18 or over
No refusals assessment – does the person have anything in place that would contradict the authorisation i.e. advance decision, decisions by a Deputy or Attorney?
Mental capacity assessment – does the person have mental capacity to decide for themselves about the proposed restrictions?
Mental Health assessment – does the person have a mental disorder?
Eligibility assessment – should the person be considered for detention under the Mental Health Act instead?
Best interests assessment – is the proposed restriction in the person’s best interests? Is there a less restrictive way to provide them with the treatment or care they need?

The assessors must consult with certain family members or an appointed Attorney or Deputy during the assessment process.

The assessment reports will then be reviewed and, if all the criteria are met, the deprivation of liberty will be authorised. The authorisation will be time limited and, if it is to continue beyond the expiry date, another request will need to be made for a standard authorisation. There may also be conditions attached to the authorisation.

A ‘relevant person’s representative’ (RPR) will be appointed, this is usually a family member or friend, and it is the RPR’s role to represent and support the person in relation to their deprivation of liberty. The RPR should try to identify the person’s wishes and challenge whether the authorisation of the deprivation of liberty is in the person’s best interests.

In some cases, it might not be possible to apply for the standard authorisation. In such circumstances, the care home or hospital can grant an urgent authorisation to themselves and then apply for a standard authorisation within seven days. The managing authority should try to speak to family, carers or friends of the person before the urgent authorisation is granted as it may be possible to avoid the deprivation of liberty.