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
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 following things all apply, then it is likely that a deprivation of liberty is likely to occur (or is already occurring):
- The person lacks capacity to consent to their care or treatment;
- The person will be (or is) under continuous supervision or control;
- 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.
What is meant by each of these factors is explained in the following sections.
Lacks capacity to consent to care or treatment
The person’s capacity to consent to the care, support or treatment must be assessed formally through a mental capacity assessment.
If the local authority or CCG has arranged the service, it is likely that they will have completed this assessment.
If the person has made their own 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; or
- They may have their food choices restricted due to a risk of choking.
Supervision and control is only deemed to be 'continuous' in nature if the overall impact on the person's life is significant.
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 is not permitted to carry out everyday tasks (such as cooking or cleaning) without the support of others;
- The use of restraint or medication 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 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.
Imputable to the state
Care, support, or treatment is imputable to the state if:
- It has been arranged or provided by the local authority; or
- It has been arranged or provided by the NHS; or
- A person has made their own arrangements for care, but if they didn't have the financial means to continue paying for their care the local authority would need to do so.
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 does not amount to a deprivation of liberty when:
- The individual providing care, support or treatment believes that it is necessary to restrain the person in order to prevent them from being harmed; and
- There is evidence that restraint is a proportionate response to the likelihood and seriousness of harm; and
- Restraint is not used routinely as a method to manage behaviour.
If restraint is being used routinely to manage the person's behaviour, it is likely that this surmounts to continuous supervision and control, which would then indicate that a deprivation of liberty may be occurring.
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 non-disabled young person of that age.
The young person is likely to be deprived of their liberty when the level of deprivation is greater than the level of restriction normally placed on a non-disabled 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 non-disabled siblings of a similar age; unless
- The level of restriction being placed on non-disabled siblings is not deemed appropriate.
Jodie is 16 years old and lives in a care home. She is not permitted to take part in any cooking activities, because it is not deemed safe for her to do so. This is likely to be a deprivation of liberty, on the basis that a non-disabled 16 year old would be able to carry out cooking tasks, either independently or with support.
If necessary, you should seek the advice or support of a social worker or other relevant professional.
Last Updated: March 21, 2022
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