These pages are not intended to offer legal advice.
The right to liberty (freedom) has been part of UK law for many years. Sometimes that right is restricted (limited), to keep safe those who lack capacity to make their own decisions. In health and social care, a common example of restricting someone’s liberty to keep them safe is not allowing them to leave their care home without support. Sometimes a person is restricted so much that the law describes them as being ‘deprived of liberty’. If a person is going to be restricted, or deprived of their liberty, professionals trying to keep them safe must follow processes set out in the Mental Capacity Act (2005) (MCA).
What is a deprivation of liberty?
There isn’t a definition of ‘deprivation of liberty’ in the MCA but there have been a few court cases which have set out rules to help identify a deprivation of liberty and what to do to make sure it follows the law. The key court cases are the Bournewood ruling, and the Cheshire West ruling.
- The Bournewood ruling: In 2004, this UK case came before the European Court of Human Rights. The Court identified that there had been an unlawful deprivation of a young man’s liberty when he was held in a hospital with no legal authority or right to challenge his detention. The young man was not suitable to be held under the Mental Health Act 1983 (MHA) and couldn’t give consent to be there because of the way his autism affected his ability to make decisions. The court identified a gap in UK law: when someone was not detained under the MHA, there was no legal framework to authorise the deprivation of liberty. This meant that there was no easily accessible way for the young man or his carers to challenge his detention in hospital. In response to this ruling, the UK government introduced the Deprivation of Liberty Safeguards (DoLS) to authorise deprivation of liberty in hospitals and care homes.
- The Cheshire West ruling: In 2014, the Supreme Court considered the cases of three people who were subject to restrictive care arrangements that they lacked capacity to consent to. The Deprivation of Liberty Safeguards (DoLS) did not apply to them because the DoLS only apply to arrangements for care/ treatment given in hospitals and care homes, and the people the Court was considering lived in home environments. The Court created an ‘Acid Test’ to help identify if someone was deprived of their liberty, wherever they were being cared for: if the person is under continuous supervision and control, is not free to leave, and lacks capacity to consent to these things, they are deprived of liberty. The Court held that all cases which met this definition but fell outside of the DoLS, would need to be authorised by the Court of Protection.
Since the Cheshire West ruling, the ‘Acid Test’ is used to decide if restrictive care arrangements amount to a deprivation of liberty, regardless of where a person is being cared for.
You can click on each of the three key elements of the ‘Acid Test’ for more detail. The three key elements are that the person is:
- A person is under continuous supervision and control: this means thinking about all the different parts of a person’s care and support. Does someone always know where that person is? Is that person supported on a one-to-one basis for a long time during the day? Do they have over-night or periodic checks? Does the person have all their day-to-day activities planned for them, or do they choose these themselves? Can they go out without anyone being with them? It can be important not to think too literally – a person might not be directly supervised by someone else but there might be technology such as CCTV, sensor mats or door alarms that contribute to overall supervision.
- A person is not free to leave: this is thought about in two ways. Firstly, the day-to-day element of being free to leave. Is the person locked in with no access to a key or code to let them get out? Can they only leave with help? If they were to try to leave, would they be stopped? What would happen if they did leave and did not come back when they were supposed to? Would someone look for them and bring them back? Secondly, if the person no longer wanted to live in their care setting, could they choose to move somewhere else without anyone stopping them?
- The person lacks capacity to consent to the arrangements: this means that the person doesn’t have the mental capacity to consent to the arrangements which amount to the deprivation of liberty. In other words, can the person consent to being constantly supervised and controlled? Can they consent to being not free to leave? A capacity assessment is needed to evidence lack of capacity.
Caring for people in a way that limits their freedom may be the right thing to do, but high levels of restriction that amount to a deprivation of liberty must always be subject to additional safeguards. Safeguards make sure that the person’s rights are considered and that any interference with them is necessary (to keep the person safe) and proportionate (to the harm the person might suffer without the restrictions), and in their best interests. For more information on what ‘necessary and proportionate’ means, you can watch Episode Six of the MCA Mini Series, which is available on YouTube.
What happens if a person might be deprived of their liberty?
If you believe someone you care for or support is deprived of their liberty, please contact the Single Point of Access (SPA) by calling 01472 256256.
How is a deprivation of liberty authorised?
At the moment there are two ways to authorise a deprivation of liberty. Which one is chosen depends on where the person is being cared for.
In the future, these ways of authorising a deprivation of liberty will generally be replaced by Liberty Protection Safeguards (LPS). We don’t know when LPS will replace the current ways of authorising a deprivation of liberty. Until LPS replaces them, the current ways of authorising a deprivation of liberty are:
- The Deprivation of Liberty Safeguards (DoLS)
- The Court of Protection
You can learn more about deprivation of liberty by watching Episode Seven of MCA Mini Series, which is available on YouTube.
DoLS is used to authorise a deprivation of liberty when a person aged 18 or over is cared for in a care home or in a hospital. When a person’s care in a care home or hospital amounts to a deprivation of liberty and they can’t consent to this, the care home or hospital must apply to the Council to authorise the deprivation. In North East Lincolnshire, the DoLS team at Focus Independent Adult Social Work looks after applications on behalf of the Council.
The DoLS team checks that the application is correct, and arranges for professionals to assess the person who the application is about.
What DoLS assessments are there?
a) Capacity and best interest assessments – a specialist called a Best Interests Assessor (BIA) will assess the person’s capacity to consent to their care arrangements. If the BIA decides the person has capacity to consent, then the assessment process is ended: there is no need for a deprivation of liberty authorisation.
If the BIA decides the person lacks capacity, they will complete a best interests assessment. The BIA will look at the person’s care plan and the ways they are being restricted, and decide if those restrictions amount to a deprivation of liberty, using the ‘Acid Test’. The BIA will decide if they think the restrictions are in the person’s best interests, and are necessary and proportionate to keep them safe.
As part of their assessments, the BIA will speak to the person, and also to the people who are important to that person, such as their family or friends, and professionals caring for them. The BIA will also check if anyone has been appointed as the person’s Attorney or Deputy. The BIA will want to know whether the way the person is being cared for goes against any decision made by the Attorney or Deputy, or against any decision about treatment previously made by the person themselves.
The BIA will usually identify someone to act as a Relevant Person’s Representative (RPR). The RPR represents and supports the person who is deprived of their liberty. The proposed RPR must agree to do this. If there is no-one who is willing, able or suitable to act as RPR, then the BIA may recommend an advocate supports the person instead. You can read more about the role of the RPR on the Mental Capacity website.
The BIA should be separate from the person’s day to day care so that they can give an independent view. The BIA is usually a nurse or social worker.
b) Mental health assessment – a specialist mental health assessor (MHA), usually a psychiatrist, will decide if the person has a mental disorder, impairment or condition that stops them being able to consent to their care arrangements. The MHA will also decide whether it would be more appropriate for the person to be cared for under the Mental Health Act 1983.
What happens when the DoLS assessments are complete?
When the assessments are complete, the Council will authorise the deprivation of liberty if it is satisfied with the information it has had from the BIA and the MHA. The authorisation will last for maximum of 12 months. Depending on the person’s situation, the authorisation process may need to start again, before that 12-month period is up.
The role of the Relevant Person’s Representative (RPR)
The BIA will usually identify someone to act as a Relevant Person’s Representative (RPR). The RPR represents and supports the person who is deprived of their liberty. The proposed RPR must agree to do this. If there is no-one who is willing, able or suitable to act as RPR, then the BIA may recommend an advocate supports the person instead.
The RPR plays an important role in safeguarding the person’s rights. The RPR should see the person regularly and understand what their wishes and feelings are about their care. The RPR must raise any issues about the person’s care. The RPR can also ask for a review of the care arrangements if they feel they are no longer in the person’s best interests. The RPR can raise a legal challenge on behalf of the person if they think the person objects to their care arrangements, or would object, if they had capacity to do so. RPRs thinking about making a legal challenge should seek legal advice as soon as possible.
2 Court of Protection authorisation
Applications to authorise a deprivation of liberty are usually made to the Court of Protection if the person being deprived of their liberty:
- is aged 16 or 17; or
- is an adult, being cared for outside of a hospital or care home (for example at home, in a supported living placement, or shared lives scheme).
Applications are generally made to the Court because the DoLS scheme only applies to people who are aged 18 and above, and who are being cared for in a hospital or care home.
Before it makes a decision about whether to authorise a deprivation of liberty, the Court will want to see evidence similar to the assessments that are done as part of the DoLS process. This includes:
- a capacity assessment
- evidence of a mental disorder or impairment
- evidence of the restrictions that the person is subject to, and whether they are necessary and proportionate to keep the person safe. The Court will also need a copy of the person’s care plan.
When the person is over 18 and there are no disagreements about their care arrangements, the authorisation process is usually completed without anyone having to go to court. The Judge makes a decision based on the paperwork submitted by the authority responsible for the person’s care, unless someone involved asks for a hearing.
The Court will formally appoint someone to act on the person’s behalf. Those appointed to act by the Court are called Rule 1.2 representatives. The role of the Rule 1.2 representative is similar to the role of the RPR with the added requirement that the representative must send a statement to Court. The statement is to give a view on the person’s behalf, and tell the Court anything else the representative thinks might be missing from the evidence the Court already has. You can read more about the role of the Rule 1.2 representative on the Advocacy Focus website.
When the Court is satisfied that the arrangements amounting to a deprivation of liberty are in the person’s best interests and that all the relevant people have been consulted, it will authorise the arrangements for a maximum of 12 months. The Court will issue a Court Order confirming this, which should be sent to the Rule 1.2 representative and kept with the person’s care records.
When the authorisation period is nearly over, another application will need to be made to renew the authorisation, which starts the process over again.
Role of Rule 1.2 representative
The role of the Rule 1.2 representative is similar to the role of an RPR. It has the same requirements to raise any concerns with the authority responsible for the person, or to return the matter to Court if the care package and the deprivation of liberty is no longer in the person’s best interests. The Rule 1.2 representative should visit the person regularly and provide any additional information to the Court as and when necessary.
Can a deprivation of liberty be challenged?
Yes. If the person objects to their care arrangements, and action to help the person with their concerns doesn’t stop them being unhappy, a challenge should be made to the Court of Protection. The Court will consider what the person objects to and why, and look at their care arrangements, including available alternative options for caring for them. When the Court is satisfied it has all the relevant information it will decide what is in the person’s best interests. This might mean that nothing changes for the person: they carry on being cared for in the same place in the same way, if that is what’s in their best interests. But it might mean that (for example) they are cared for in a different place, or in a different way, if that would be better for them and is an option that is available to them.
A solicitor will usually make the court application, working with the person’s representative (the RPR or Rule 1.2 representative). Sometimes a specialist may be appointed to act as a litigation friend – this is a person whose role is to make sure the person’s views are heard in court. This is usually either the solicitor themselves, an advocate or a professional litigation friend from the Office of the Official Solicitor. For more information on the Office of the Official Solicitor please see their website.
You can read the Mental Capacity Act https://www.legislation.gov.uk/ukpga/2005/9/contents
You can read the Code of Practice which gives guidance on applying the Act: https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice
You can read the Code of Practice that gives guidance on the Deprivation of Liberty Safeguards: https://www.cqc.org.uk/sites/default/files/Deprivation%20of%20liberty%20safeguards%20code%20of%20practice.pdf
You can read the local Mental Capacity Act 2005 and Deprivation of Liberty Policy: https://www.northeastlincolnshireccg.nhs.uk/publications/