A new scheme, the liberty protection safeguards, will replace the deprivation of liberty safeguards. It is expected that the new regime will come into force in autumn 2020. It will be accompanied by a code of practice. Check back here for updated information.
A deprivation of liberty occurs where someone is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements.
During the provision of care and treatment to adults who may temporarily or permanently lack relevant decision-making capacity, it may be necessary to treat them in circumstances that amount to a deprivation of liberty under Article 5 of the European Convention on Human Rights.
This guidance helps health professionals identify where an individual may lawfully be deprived of liberty.
You can download our full guidance, complete with relevant case studies and court cases below.
Important points for health professionals
- The fact that care or treatment amounts to a deprivation of liberty does not mean that it is inappropriate. It means only that it reaches a certain threshold of restriction and authorisation is required.
- Identifying and authorising a deprivation of liberty should not substitute for or impede the delivery of the highest standard of care.
- The focus of decision-making must remain the best interests of the patient.
- Nothing in the MCA (mental capacity act) or DoLS (deprivation of liberty safeguards) is designed to prevent timely and appropriate medical treatment. In an emergency, treatment must not be delayed for the purposes of identifying whether a deprivation of liberty has taken place, or seeking its authorisation.
- An authorisation for a deprivation of liberty does not provide legal authority for treatment. Treatment for adults unable to consent must be given on the basis of an assessment of their best interests or in accordance with another legal provision of the MCA.
- Authorisation for a deprivation of liberty is unlikely to be necessary where urgent or lifesaving treatment for a physical condition is being provided to a patient lacking capacity. That is where the treatment is necessary, in the patient’s best interests and is the same as that which would be provided to a person with capacity to consent. This is likely to include most treatment provided in intensive care and similar settings.
Factors that indicate that someone may be deprived of liberty
Where an individual is being provided with care and treatment in circumstances that amount to a deprivation of liberty, that deprivation has to be authorised. Factors that indicate that an individual may be deprived of liberty include:
- that the person is confined to a restricted place for a non-negligible period of time
- that the person does not have the capacity to consent to their care and treatment in those circumstances
- that the person is subject to ‘continuous and complete supervision and control’
- that the person is not free to leave.
Assessing whether a deprivation of liberty may have taken place
- The objective element: is the person confined to a particular restricted place for a non-negligible period of time?
- The subjective element: does the person refuse to consent or are they unable to consent?
- State imputability: is the deprivation of liberty directly or indirectly the responsibility of the state?
(This element will always be satisfied where the care is either delivered directly or commissioned by an NHS body. It will also apply where care is provided privately in a hospital or care home).
- Do the circumstances satisfy the 'acid test': is the individual subject to complete or continuous supervision and control and is not free to leave? Useful questions to ask here will include the following:
- Is the person free to come and go as they wish or do they need permission?
- Are they able to leave and live somewhere else or would they require permission?
- If they leave and try to relocate somewhere else, will steps be taken to return them?
- How intense are the measures of constraint?
- To what extent does the individual resent or resist the constraints?
Deprivation of liberty checklist
During the ordinary care and treatment of people lacking capacity, it may be necessary, at times, to place restraints on their liberty. Many necessary restraints placed on incapacitated adults will not amount to a deprivation of liberty. In combination, or where they are applied with particular intensity or for sustained periods, they may do.
Incapacitated adults are vulnerable and where there is doubt, we recommend that health professionals err on the side of caution. Ultimately, the question of whether a person is deprived of liberty is a legal one. If in doubt, you should seek legal advice.
You can use the Law Society's checklist for practitioners to help establish whether an individual may be deprived of liberty.
- What liberty-restricting measures are being taken?
- When are they required?
- For how long will they be required?
- What are the effects of any restraint or restrictions?
- Why are they necessary?
- What are the views of the person or any family, friends or carers?
- How will the constraints or restrictions be applied?
- Is force or restraint, including sedation, being used?
- Are there any less-restrictive options available?
- Is the patient prevented from leaving by distraction, locked doors, restraint, or because they are led to believe they would be prevented from leaving if they tried?
- Is access to the patient by relatives or carers being severely restricted?
- Is the decision to admit the patient being opposed by relatives or carers who live with the patient?
- Has a relative or carer asked for the person to be discharged to their care, but the request is being denied?
- Are the patient's movements restricted within the care setting?
- Are family, friends or carers prevented from moving the patient to another care setting or prevented from taking them out at all?
- Is the patient prevented from going outside (escorted or otherwise) even though it would be possible for them to do so?
- Are the patient's behaviour and movements being controlled through the regular use of medication or, for example, seating from which they cannot get up or by bed rails that prevent them from leaving their bed?
- Do staff exercise complete control of the care and movement of the person for a significant period?
- Is the patient constantly monitored and observed throughout the day and night?