Recognising a Deprivation of Liberty
Scope of this chapter
Article 5 of the Human Rights Act 1998 states that “everyone has the right to liberty and security of person and no one shall be deprived of his or her liberty unless in accordance with a procedure prescribed in law”.
Deprivations of liberty that have not been authorised by either the local authority (through the DoLS framework) or the Court of Protection are unlawful and a breach of a person’s basic human rights.
This chapter will explain how you can identify whether a deprivation is occurring (or likely to occur) when planning or providing care, support, or treatment. Knowing this will enable you to then take appropriate action to ensure that the relevant legal framework is applied.
Relevant Regulations
Related Chapters and Guidance
- Equality, Diversity and Human Rights
- Mental Capacity
- Responding to a Deprivation of Liberty
- The DoLS Process
- Monitoring and Reviewing Restrictions
Amendment
In April 2024, this chapter was reviewed and refreshed.
Deprivations of liberty can occur in a whole range of settings, including:
- A care home (nursing or residential);
- A hospital;
- A home owned by the person;
- A home rented by the person (including supported living or extra care);
- A shared lives scheme;
- A day centre or other place where the person receives care or treatment away from their home.
Wherever possible, a deprivation of liberty should be identified in advance of the need to provide care, support, or treatment. This proactive approach ensures that alternative options can be explored and, if the deprivation is necessary, the relevant legal framework can be applied in a timely way.
If the person is aged 18 or above and lacks capacity to consent to their care or treatment, it is likely that a deprivation of liberty is occurring if:
- The person will be (or is) under continuous supervision or control; or
- The person will not be (or is not) free to leave the place where they are receiving care or treatment; and
- The care, support, or treatment is imputable to the state.
If the local authority or ICB has arranged the service, it is likely that they will have already completed a mental capacity assessment to determine whether the person has capacity to consent to their care or treatment. If this is not the case, or if the person has made their own care arrangements (or been supported by family), the service may need to complete this assessment.
See: Mental Capacity
Under continuous supervision and control
Whenever care, support or treatment is provided there will probably be some element of supervision or control. For example:
- The person may require monitoring when taking their medication;
- They may have their food choices restricted due to a risk of choking;
- They may be permitted to go out unaccompanied for short periods, but they are monitored or subject to restrictions about what they will do or when they will be back.
The more control or restrictions placed on a person, the more likely it is that the supervision and control would be ‘continuous’.
The following are examples of situations when supervision and control is likely to be continuous:
- The person needs frequent or constant supervision for their safety;
- The person is only ever left on their own for short periods of time;
- Most aspects of life are decided by others (e.g. what to wear, what to eat, when to get up or go to bed, how to spend their time);
- The person needs support with all or many everyday tasks and would not be permitted to carry them out without this support;
- Restraint or medication is used to routinely manage behaviour.
Not free to leave
A person is not free to leave if they:
- Are required to be there to receive the care, support or treatment; and
- Would be prevented from leaving on their own if they attempted to do so.
An important thing to remember about being 'free to leave' is that it does not matter whether the person is asking or attempting to leave; what matters is the response that they would receive if they were to do so.
Where the person lives in a care home (residential home or nursing home), leaving should be considered in the context of both what would happen if the person wanted to leave for a short period (for example to go for a walk) and what would happen if they wanted to leave and not return i.e. live somewhere else.
Imputable to the state
Care and treatment is imputable to the state if the state has made the arrangements for that care to be provided or the state has become aware of the arrangements.This includes care that is privately arranged, about which the state becomes aware. For example, because a safeguarding concern is raised or a GP makes a referral. Once the deprivation of liberty has come to the attention of the local authority, it is imputable to the state.
Restraint is defined in the Mental Capacity Act 2005 as:
- Any act that uses, or threatens to use, force to carry out another function to which the person resists; or
- Any act that restricts the person's freedom of movement, whether or not they resist.
The use of restraint will usually mean that the person is deprived of their liberty.
The only occasion where the use of restraint would not normally amount to a deprivation of liberty is in an urgent situation, where the person using restraint believes that in that moment, the use of restraint is necessary to prevent harm and where the level of restraint they have used is proportionate to the likelihood and seriousness of harm.
If the person is a young person aged 16 or 17 years old, everything in section 2: Identifying a deprivation of liberty still applies.
However, there is one further factor to consider:
- Whether the level of deprivation is not comparable to the level of restriction normally placed on a young person of that age.
When care is being provided by the young person's family in the family home, this judgement should be made in the context of that particular family, having regard to:
- Their beliefs and values; and
- The level of restriction placed on siblings of a similar age; unless
- The level of restriction being placed on those siblings is not deemed appropriate.
Jodie is 16 years old and lives in a care home. She is not permitted to go to the shops without a support worker, because it is not deemed safe for her to do so. This is deemed to be a deprivation of liberty, on the basis that a most 16-year-olds would be allowed to go out locally without support.
If necessary, you should seek the advice or support of a social worker or other relevant professional.
Last Updated: March 23, 2024
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