Key Questions
What is a deprivation of liberty?
Liberty means being free to live life without restrictions or without oversight from another person. It is a fundamental human right and is protected by the Human Rights Act 1998.
A deprivation of liberty is when an adult has their freedom limited in some way, because sometimes it is necessary to deprive an adult of their liberty to provide care and support or keep them safe. This is a serious step, which impacts on an adult’s human rights, so there are clear legal processes and safeguards in place which must be followed to make sure that any restriction being proposed is in their best interests and is proportionate to the risk of harm.
The Supreme Court provided a test (called the ‘acid test’) which is used to see whether the way an adult is being cared for is a deprivation of their liberty. Using this test, an adult is deprived of their liberty if:
- they are under constant supervision and control (by staff);
- they are not free to leave the place they are living in; and
- they lack ‘mental capacity’ to agree to what happens to them. This means they are not able to make some or all decisions themselves.
People must always be cared for in a way that:
- does not limit their freedom without good reason;
- does not limit all their choices or freedoms, just those that need to be put in place to make them safe.
A deprivation of liberty should be seen as a last resort, after having first considered or tried other ways of keeping an adult safe.
Where does it happen?
When an adult is in hospital or living in a registered care home, the deprivation of liberty safeguards (also called a DoLS) is used to ensure the deprivation is lawful.
When an adult is living in their own home or supported accommodation, it must be authorised by the Court of Protection and is called a community deprivation of liberty.
What is the process for authorisation?
Whenever an adult is being provided with care or treatment where it is likely that there will be some limits to their freedom and these restrictions are constant and they are not free to leave, this could amount to a deprivation of liberty and need to be authorised using the DoLS or an application to the Court of Protection for a community DoL.
Where the adult lives in a care home or is in hospital or a hospice, staff are responsible for making sure that if they need to deprive someone of their liberty it is done within the law.
A manager from the care home or hospice or a member of staff from the hospital must apply to the local authority for it to agree the request to limit the adult’s freedom.
After a request is received from a care home, hospital or hospice, the local authority will carry out an assessment to make sure the deprivation of liberty is needed, in the adult’s best interests, to keep them safe. If the deprivation is authorised, it should be for the shortest time possible, and for a maximum of 12 months. It should be kept under review.
It is important that care is always given in the way that least restricts the adult’s freedom while still keeping them safe and well.
If an adult is living in a setting in the community, including supported living accommodation or their own home, they can be deprived of their liberty if this is in their best interests. A practitioner working with the adult should make a referral to the local authority which will then make an application to the Court of Protection.
Usually, the Court will be able to make a decision about whether to approve the deprivation from looking at the documents completed, and no one will need to attend Court.
