What is deprivation of liberty?

In short, deprivation of liberty is when you have your freedom taken away regarding making decisions over your own life. Furthermore, deprivation of liberty is only legal when it’s the least restrictive way of keeping someone safe or making sure they receive the correct medical treatment.

Your liberty can only be removed, under the Mental Capacity Act, if:

  1. You’re age 18 or over
  2. You lack the mental capacity to agree to restrictions
  3. The care home or hospital you’re staying in has successfully applied for authorisation from the local authority.
  4. Each of the deprivation safeguards has been followed
  5. Alternatively, where the Court of Protection grants permission
Person who is recovering from a brain injury in hospital and therefore needs an application for deprivation of liberty

Deprivation of liberty examples:

Deprivation can sometimes be confusing to understand without examples. Therefore, listed below are two deprivation of liberty examples.

Example one

Sarah has been in a serious car accident and acquired a brain injury. In addition to her brain injury, Sarah has also broken her arm. As a result of Sarah’s broken arm, she needs an urgent operation. However, she currently lacks the mental capacity to decide on her treatment. So, after consulting Sarah’s sister, it’s agreed that it’s in her best interests to have the operation.

Furthermore, Sarah suffers from nosocomephobia (fear of hospitals), so she will need to be sedated during her stay. This sedation is needed to stop Sarah from panicking when her arm needs to recover in a still position. However, before she can be admitted, on advice from the GP, the hospital must make an application for the standard authorisation for using sedation. Only once this application is granted can Sarah be admitted.

Example Two

Michael suffers from dementia and has been living in a nursing home for five years. Michael’s condition is quickly becoming more advanced, and last week climbed out of his first-floor window in the middle of the night. Following several hours of searching, Michael was found sitting on a local park bench. As a result of this event, the care home applied to the local authority for standard authorisation to put some safety locks on Michael’s windows. 

What is the deprivation of liberty safeguards (DoLS)?

The deprivation of liberty safeguards, also know as DoLS, is in place to protect anyone from having their liberty taken away without good reason.

Deprivation of liberty safeguards

The key elements of these safeguards are:

  • Provide the person who’s being deprived of their liberty with a representative. This representative is a person who has the responsibility to look out for and monitor the person receiving care. A representative can be a relative, friend, carer, or an Independent Mental Capacity Advocate.
  • Give the person (or their representative) the right to challenge a deprivation of liberty through the Court of Protection.
  • Provide a system for a deprivation of liberty to be reviewed and monitored regularly.

How long can it be authorised?

Twelve months is the maximum amount of time deprivation of liberty can last. However, the duration for a deprivation of liberty should be the shortest possible time. 

During this time, the supervisory body should update the person’s representative with information about the person’s treatment and care. Additionally, regular reviews should be conducted on a person’s progress. If there are progress restrictions that must stop immediately, they’re no longer required.

If the court authorises the full 12 months of deprivation of liberty when this 12 month expires, they must review the situation and decide whether they should renew the authorisation. This occurrence must take place at least every 12 months.

NHS who has the power to grant authorisation of a deprivation of liberty

Who grants the deprivation of liberty authorisation?

The supervisory bodies which grant deprivation of liberty are usually either a local authority or the NHS. One of these super will appoint a mental health assessor (doctor) and a best interests assessor (social worker, nurses, occupational therapist). These assessors will complete their checks on the patient and then discuss their best interests and how liberty deprivation may affect their mental health. Additionally, the assessors may consult with other people, including current carers, family members and close friends.

Suppose all of the conditions are met (as above). In that case, the assessors will report back to the supervisory body, granting an authorisation. The assessors should always look at whether there is a less restrictive way of providing care or treatment.

However, before the care home or hospital can lawfully deprive someone of their liberty, they must get permission from a relevant authority.

What assessments will the assessors conduct?

Before the deprivation of liberty is authorised, the mental health assessor and best interests assessor will have to tick the following six assessments, which are;

  1. Age assessment. This assessment is the most simple, as it checks whether you’re aged 18 or over.
  2. Mental health assessment. This assessment confirms that you have been diagnosed with a ‘mental disorder’ under the Mental Health Act.
  3. Mental capacity assessment. This assessment determines whether you have the mental capacity to decide on the location of your accommodation. If you do have this capacity, The assessors shouldn’t deprive you of your liberty. The authorisation procedure shouldn’t go ahead.
  4. Best interests assessment. This assessment is to see whether being deprived of your liberty is in your best interests. The best interests assessment will take account of your values and any views you have previously expressed. Additionally, this assessment will consider the opinions of your friends, family, and any professionals involved in your care.
  5. Eligibility assessment. The eligibility assessment ensures that you’re not detained under the mental health act 1983 or that the requirement would conflict with the deprivation of liberty safeguards.
  6. A ‘no refusals’ assessment. This final assessment is to make sure that the deprivation of liberty does not conflict with decisions made by yourself, lasting power of attorney, or a deputy appointed by the court of protection.

A person can’t have their liberty taken away unless all six of the assessments are met.

Can deprivation of liberty be reviewed?

The managing authority (care home/ hospital) and the supervisory body (local authority or NHS) must regularly review liberty deprivation. The purpose of these regular reviews is to assess whether the authorisation is still needed and whether the qualifying requirements are still valid.

In an instance when there’s a change in circumstance, for example, if someone suddenly regains their mental capacity, a review should be conducted immediately.

One of Britton and Times litigation solicitors
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