Deprivation Of Liberty

On certain occasions, individuals who lack the capacity to make decisions for themselves need to receive restricted care or treatment in a hospital or care home, as this is the only way they can get the specialist care required. The Deprivation of Liberty Safeguards (DoLS) were introduced in 2016 to protect these patients, and ensure that the care arrangements are appropriate, proportionate and necessary given the circumstances.

The Human Rights Act 1998 states that nobody can be deprived of their liberty except in restricted situations and is designed to prevent any deprivation of liberty without careful consideration of the facts. It is extremely important that no party should ever be restricted to an extent greater than is necessary and any action taken must be proportionate to the risks involved to the individual.

Deprivation of liberty case

Cheshire West

The Supreme Court considered deprivation of liberty in detail in 2014 in the matter of Cheshire West. It was held that there was an ‘acid test’ for those lacking capacity to consent to, or refuse, their care arrangements. In each scenario, it needs to be carefully considered whether or not:

• The individual is free to leave their care arrangement?; and
• Is the person subject to complete or continuous supervision and control whilst in care?

The Court held that it didn’t matter why these things were happening and whether they were positive for the individual concerned, the facts were the key and this should mean an objective test for all. If the test was met and the person could not consent because they lacked mental capacity, any decision would need to be made by an independent third party who would complete necessary evaluations.

Whilst the term “deprivation of liberty” implies wrongdoing by a carer, this is not always the case. However, any situation of this type will require careful consideration by an independent individual who will look at the facts and make any necessary changes, for example, providing less restrictive ways of giving the required care. Of course, in some circumstances, the actions of the authorities may not be in the person’s best interests and further action may be required.

Deprivation of liberty safeguards process

If the Deprivation of Liberty Safeguards are being used to authorise the deprivation of an individual’s liberty, the party concerned will be being treated in a care home or hospital. The institution concerned should then tell the individuals’ family members that they have made an application for an authorisation under the Deprivation of Liberty Safeguards. This request will be considered by the Local Authority where the individual normally resides.

Two assessors will then visit and interview the person who is being deprived of their liberty. One of those must be a qualified medical practitioner, who will be able to confirm that the individual has a diagnosis which allows the Deprivation of Liberty Safeguards to be used and that the use of the Deprivation of Liberty Safeguards is the correct legal route under the circumstances. The second assessor will be a ‘Best Interests Assessor’, who will confirm that the individual does not have the mental capacity to make their own decisions and that being in the care home or hospital is in the individual’s best interests.

Please note that family members and friends have the right to be consulted during the Deprivation of Liberty Safeguards process. These individuals are termed as “Interested Persons” and include the following:

• Partner (spouse or civil partner);
• Children or step children;
• Parents and grandparents ;
• Siblings; and
• Any Court appointed Deputy.

Once the assessments have been completed, these will be sent to the Local Authority to be authorised. If specific criteria are not met, the Deprivation of Liberty Safeguards request will not be authorised.

Please note that any consulted party during the process is entitled to receive a copy of the final report confirming whether or not deprivation of liberty has been authorised, and, if so, for how long. If authorisation has been granted, the time period can be anything up to 12 months. Should the 12 month period come to an end, the process will need to be repeated for further authorisation.