This month the Law Society’s Guidance on identifying a deprivation of liberty has been issued. It focuses primarily on the practical application of the law.
It is not binding guidance, but it is certainly helpful in bringing together the legislation, case law and practical experience of the authors to create a comprehensive document for professionals to refer to when establishing whether there might be a deprivation of liberty, and what to do if so.
A person will be deprived of their liberty if they:
a) lack capacity to decide on their residence
b) they are under continuous supervision and control; and
c) they are not free to leave.
For an overview of the deprivation of liberty safeguards, see our Court of Protection guide under “Free Resources”.
There are some particularly interesting points to note arising from this guidance:
The guidance suggests that it is appropriate to use a Standard Authorisation for a respite placement where an individual only stays, for example, one week per month. This will work as long as there is some regularity to the respite arrangement.
Continuous supervision and control
The guidance provides that continuous supervision and control does not have to mean 24 hour supervision. It will also be satisfied if e.g. an individual can go out unescorted but needs permission to leave the care home and visits are subject to controls and restrictions.
It is important not to conflate the concept of “freedom to leave” with “ability to leave” or “attempts to leave”. This means that just because a person has not tried to leave, they would be free to do so if they did make an attempt to leave. The question to ask is what steps would be taken if the person did try to leave.
The guidance says that there is still some doubt about whether the freedom to leave is permanent only (i.e. leaving to go and live elsewhere) or temporary (such as going out for a shopping trip and then returning). Further case law may be required to resolve this issue.
For there to be a deprivation of liberty, the person has to be deprived for a “non-negligible period of time”. It is suggested that public bodies create their own policies, but anything beyond 2-3 days is likely to be a deprivation.
The situation in physical healthcare hospital settings
Although often an A&E admission will not amount to a deprivation of liberty, the more intensive any restraint used is, and the more the person can perceive what is happening and become distressed/resistant, the shorter the period of time before liberty-restricting measures taken will amount to a deprivation.
It is important to note that the Department of Health does not consider a state of unconsciousness to be a mental disorder for the purposes of Schedule A1 to the MCA, so the deprivation of liberty safeguards will not apply.
Indications that there may be a deprivation on an acute hospital ward would include raised bed rails, a catheter bag attached to the hospital bed, or a requirement that the patient does not leave a certain area/the ward.
Transporting the individual
Transporting someone in an emergency to A&E is unlikely to amount to a deprivation, but transporting someone may be deprivation if:
- The police need to gain entry to the person’s home to assist in their removal from the house and into the ambulance
- It is necessary to do more than persuade, or provide transient forcible physical restraint
- Sedation is required
- The journey is exceptionally long
A Standard Authorisation cannot be used to authorise a deprivation of liberty on the way to a placement.
Interaction with the Mental Health Act 1983 (MHA)
If a patient is subject to a Guardianship Order, Community Treatment Order or is conditionally discharged from ss.37/41 of the MHA, that in itself will not a) mean there is a deprivation of liberty or b) any deprivation of liberty is authorised.
Certain measures that will indicate there is a deprivation will include having an exclusion zone relating to a victim, having to comply with medication and restrictions on contact.
Deprivation at home
The issue here is primarily whether it is imputable to the State so that reliance can be made under ECHR Article 5 (right to liberty). When a person is in a hospital or a care home, it will be easy to demonstrate any deprivation of liberty is imputable to the State either because the State is funding the placement, regulating the placement, or at the very least is aware of the situation. When an individual is residing at home, the situation is more complication.
If a best interests decision has been made by the local authority or NHS, the State will be “on notice” of any deprivation of liberty and their positive obligation under Article 5 is invoked, i.e. they have to take active steps to ensure the deprivation is lawfully authorised, even though they may not have arranged the care themselves.
As to whether or not there is a deprivation of liberty in the first place, although Lady Hale in Cheshire West says we should in the case of vulnerable err on the side of caution as regards deciding what is a deprivation, recent case law (such as Rochdale LBC v KW) suggests reluctance on the parts of some High Court judges to find there is a deprivation in a person’s own home.
Factors that will indicate deprivation of liberty at home will include the use of medication to control behaviour, physical support with daily living set by a timetable, the use of CCTV/assistive technology, regular restraint by family or carers, doors being locked.
The Court of Protection can only authorise a deprivation of liberty for those 16 and over. It is also important to note that parental responsibility cannot be used to consent to a deprivation.
In determining whether there is a deprivation for a child or young adult, the question to ask is whether the extent of the care arrangements differ to those typically made for someone of the same age and relative maturity who is not disabled.
For each scenario (hospital, care home, living at home, etc), the guidance has a helpful list of questions to ask to help you to establish if there is a deprivation of liberty. These can be found at pp. 50, 62/63, 87, 93, 104 of the guidance.
For the full guidance and further information please visit the Law Society website: http://www.lawsociety.org.uk/support-services/advice/articles/deprivation-of-liberty/?utm_source=Newsletters&utm_campaign=b0077ba691-MCL+MARCH+2015&utm_medium=email&utm_term=0_0dd23690b2-b0077ba691-47326949
The Law Commission is currently considering the question of how deprivation of liberty should be regulated and authorised. A consultation paper is due in the summer of 2015, with a final report and draft legislation due in the summer of 2017.
Maria Nicholas, Solicitor/Director
Posted on Tuesday, 14th April 2015