Deprivation Of Liberty – The Circumstances & Parameters

In the Court of Protection, there are frequent cases that concern the placing restrictions on the way in which an individual may live their life. The Court is usually asked to decide whether the person in question lacks the capacity to make decisions about medical treatment, care, residence, or their day-to-day activities and whether it is in that person’s best interests to be deprived of their liberty. The Supreme Court defined the concept of “deprivation of liberty”, paying close attention to the right to liberty in the European Convention of Human Rights 1998.

In a judgment in Cheshire West and Chester Council v P [2014] UKSC 19 (Cheshire West), the Court declared that an individual is being deprived of their right to liberty if these criteria are met:

  1. The person lacks the capacity to consent to the restrictions being imposed;
  2. The person is under “continuous supervision and control”; and
  3. The person is “not free to leave”.

The consequences of that decision were that local authorities and local health authorities – who have a general duty to care for the vulnerable – needed to seek authority at law for any individual under their care who was (as per the definition in Cheshire West) being deprived of their liberty.

Methods by which an individual who lacks capacity can be deprived of their liberty for the purposes of medical treatment

There are essentially two methods by which an individual who lacks capacity (a protected party) may be deprived of their liberty for the purposes of medical treatment.

The first of them, currently known as the Deprivation of Liberty Safeguards (DOLS) process, is used by health authorities and local authorities, although this will soon be replaced by the Liberty Protection Safeguards (LPS) process which is more simplified (details of this and what it can be expected to include when implemented can be found here).

The second is by way of an application to the Court of Protection. It is for the party bringing the application to demonstrate that the intended deprivation of liberty is in a protected party’s best interests. The Court of Protection only has jurisdiction if it can be demonstrated that a protected party may lack the capacity to make a decision on the issue in question for himself/herself.

Health professionals may use the DOLS process to detain an individual in a specified place for the purposes of medical treatment or care. They may take these steps if they have reason to believe that an individual lacks the capacity (i.e. is unable to understand) to make decisions about his/her need for medical treatment, or lacks the capacity to understand their own state of health, and if the principles in the Mental Capacity Act 2005 (Act) and various codes of practice are closely applied.

The Act provides that when health professionals or social workers are considering imposing restrictions on a person without capacity, which would involve depriving them of their liberty, they must pay close attention to these principles:

  1. The protected party is presumed to have capacity unless there is good reason to believe that he/she does not, and at the very least an assessment must take place;
  2. The protected party should be supported to make his/her own decisions where possible;
  3. If the protected party intends to make a decision that is unwise, it does not necessarily mean that the protected party lacks capacity;
  4. Any decision taken on behalf of the protected party must be in their best interests, paying close regard to the criteria in section 4 of the Act; and
  5. Where deprivation of liberty is considered to be in the protected party’s best interests, the least restrictive option should be considered.

Every time an individual is deprived of their liberty via the DOLS process, a report must be made to the Care Quality Commission (CQC) who will closely monitor the manner in which it is carried out. In almost all cases, as a matter of practice, local health authorities and/or local authorities will apply to the Court of Protection for orders including:

  • A declaration of capacity; and
  • Authorisation for the deprivation of liberty.

This effectively ensures judicial supervision and the Court of Protection will frequently review the protected party’s case to explore the possibility of them being “released”, directing that all parties involved (including not only the professionals who have brought the case but the protected party themselves and any close relatives or friends who are party to the proceedings) should give evidence in the form of a witness statement.  The object of any such exercise is to ensure the protected party is cared for properly and whilst it might not be totally in line with what the protected party wants to happen, their own views whilst relevant are not determinative when the protected party lacks capacity. The same applies to the views of their family, though those views are still relevant, and will be heard by the Court.

How can we help?

If you have any questions regarding the subjects discussed in this article, please contact a member of our expert Dispute Resolution team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online form.

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