This chapter was last reviewed and/or updated April 2021.

KEY POINTS

  • The care and support arrangements of people lacking capacity deprived of their liberty in hospital or care home settings are authorised by the local authority.
  • The care and support arrangements of people deprived of their liberty living in community settings should be subject to authorisation through the Court of Protection.
  • The Ministry of Justice (MoJ) had commenced a review of the Mental Capacity Act Code of Practice and was working in conjunction with Department of Health and Social Care (DHSC) regarding the Liberty Protection Safeguards (LPS) which are scheduled to go live in April 2022.  However, Covid-19 has impacted on the working schedule and the DHSC are now beginning to focus on LPS at a strategic level – please look out for update briefings.

1. What is Deprivation of Liberty Safeguards (DoLS)?

Some people lack capacity to make certain decisions about their care and it may be necessary to make ‘best interests’ decisions on their behalf. The Mental Capacity Act (2005) provides a legal framework and the Code of Practice offers statutory guidance on how these decisions should be made.

Occasionally however, to meet someone’s needs and ensure their safety, care and support arrangements may need to restrict a person’s freedom and choices so severely that it could be considered a ‘deprivation of their liberty’ under the European Convention on Human Rights.

The Deprivation of Liberty Safeguards (DoLS) provide a process for assessing the person’s needs and authorising deprivation of liberty if this is in their best interests, is necessary to protect them from harm, and is a proportionate response to the seriousness of the harms and the likelihood of them otherwise occurring. The DoLS also provide rights of appeal and review in line with European law.

The Department of Health and Social Care has produced a Code of Practice specifically for DoLS.

The DoLS arrangements and local authority standard authorisation process were put in place initially to safeguard people deprived of their liberty in hospital and care home settings (known as managing authorities). Case law has since extended the scope of where someone may be deprived of their liberty to include any setting. See Section 2, DoLS and Cheshire West below.

Now, where the person lacking capacity is living in the community, such as a supported living placement or within their own home, they fall outside of the local authority’s powers of standard authorisation. Consequently, an application to the Court of Protection now has to be made by the commissioner of the placement, which is usually the local authority, to seek the court’s authorisation of the care arrangements which amount to a deprivation of liberty.

Practitioners should also refer to Deprivation of Liberty Safeguards (DoLS) in the MCA section of the Legislation chapter.

2. DoLS and Cheshire West

On 19th March 2014, the Supreme Court handed down a judgement in the case of P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and Anor [2014] UKSC 19 (19th March 2014). The judgement is significant as it deals with the criteria for deciding whether the living arrangements for a person who lacks capacity to consent to those arrangements amounts to a deprivation of liberty. Essentially it states that all deprivations of liberty must be authorised.

For the purposes of the DoLS, a care home or a hospital is known as the Managing Authority and applications from them are granted, where appropriate, by Lincolnshire County Council (the Supervisory Body) using the Deprivation of Liberty Safeguards legislation. Where the person is living in the community, such as a supported living placement or within their own home, then an application to the Court of Protection will need to be made by the commissioner of the placement, which is usually the local authority.

The judgement provides an ‘acid test’ for deciding whether an incapacitated individual is being deprived of their liberty. As a result of this judgement, where a person lacks capacity to decide about the accommodation and support arrangements that are assessed as being necessary for them, they will be deprived of their liberty if that person:

  1. is under continuous supervision and control; and
  2. is not free to leave (in this context this means not free to choose to live elsewhere).

Both the above components must be satisfied. The oversight of the person must be continuous although it does not have to be ‘in line of sight’. Where the individual does not have a carer with them all day, every day, but all of their actions are directly or indirectly completely supervised and controlled, e.g. by a care plan or care home support staff, the person is likely to be considered to be under ‘continuous supervision and control’. When considering if the person is free to leave, it should be borne in mind that the person may not be asking to leave; the focus is about how staff would react if the person did try to leave. The person’s compliance or lack of objection to the placement, the reason or purpose behind a placement and the relative normality of the placement is no longer relevant to the question of whether they are being deprived.

The same test is applicable to patients within a hospital setting who cannot consent to their care or treatment. Hospitals will need now to give careful consideration to all such patients, but in particular to those of their incapacitated mental health patients who may have come into hospital on an ‘informal basis’, those elderly patients who may be dispersed on different wards within the hospital, those people who, for example, may have suffered a stroke, and those on intensive care wards.

For more information, contact the Deprivation of Liberty Safeguards Team (see Local Contacts).

See the Deprivation of Liberty Briefing for more information (Lincolnshire County Council intranet).